Criminal Justice and Public Order Bill

HL Deb 20 June 1994 vol 556 cc74-168

House again in Committee.

[Amendment No. 164C not moved.]

Baroness Mallalieu moved Amendment No. 164CA:

After Clause 139, insert the following new clause:

("Decriminalisation of heterosexual consensual buggery in private

.Notwithstanding any statutory or common law provision, it shall no longer be an offence for a man and a woman both over the age of 18 to commit buggery in private where both consent.").

The noble Baroness said: In moving Amendment No. 164CA, I speak also to Amendment No 164CB.

This criminal justice Bill has been much criticised for creating new criminal offences. This first modest amendment takes, I hope, a small step towards redressing that balance by seeking to decriminalise an activity which is far from uncommon, which many of the general public are astonished to learn is a criminal offence, and yet more are dumbfounded to learn still attracts a maximum penalty of life imprisonment.

Anal sexual intercourse between an adult man and an adult woman conducted in private where both consent carries the maximum penalty permitted by our criminal law. Among those who know those facts, there is a widespread and erroneous belief that notwithstanding the law as it stands on the statute book no one in fact goes to prison for having anal intercourse in those circumstances. That is wrong. Cases do come before the courts and people are going to prison today for just that. In my experience it tends to happen in the following ways.

Most cases involving this sort of activity, of course, never see the light of day because no one complains and the two people concerned are the only two people who ever know about it. However, after the breakdown of a marriage, or a sexual relationship, there are times when a woman will make allegations of violence, sometimes of rape, and occasionally of buggery against her former partner. A trial may then follow. If the defendant admits buggery but claims that the woman consented he has no defence. If he insists on contesting the allegation on that basis, the jury are told by the judge that they have no alternative but to convict him as consent is no defence. If he is found guilty, or pleads guilty, whether or not the woman consented is a question for the judge alone to decide, not the jury, because it becomes purely a question of mitigation.

Where the sentencer decides that the buggery was non-consensual, that the woman did not consent, a period of some years' imprisonment akin to the sentence in a rape case, possibly one with aggravating features, is imposed, and rightly so in my judgment. However, where the sentencer decides that the offence either was or may have been consensual, the current edition of the Encyclopaedia of Sentencing gives advice to judges who have to sentence in those circumstances. It indicates that the proper sentence for consensual buggery between a man and a woman in private is one of an immediate custodial sentence of three months.

Perhaps I may refer to just two of the cases which that encyclopaedia cites to judges as being an indication of the approach that they should take and the reasoning behind it which may seem incredible to many Members of the Committee. The first of the cases to which I refer is R. v. Dixon, a case decided by the Court of Appeal in 1982. I simply quote from Lord Justice Lawson's judgment in dealing with that appeal, which involved a sentence for consensual buggery between a man and a woman who was aged 19. He said in the course of his judgment: In 1967 the law was changed in relation to homosexuality, and buggery between consenting males in private, provided that both parties were over 21, was no longer a criminal offence. Exempted from the mitigating provisions of that law were those who were under 21. It follows that so far as this court is concerned, the policy of the law is what it was when Parliament passed the 1967 Act, namely, that it is a criminal offence to commit buggery with anyone under the age of 21. Parliament in 1967 did not, as it could have done, say that buggering females in private, if they were over 21, was no longer to be a criminal offence. It follows therefore that this court should approach buggery with females in the same way as Parliament did: namely, that it continues to be a criminal offence and a serious criminal offence".

He added: This is the kind of offence which should normally attract a custodial sentence".

A sentence of three months' immediate imprisonment was imposed in that case.

The second, more recent, example is the case of R. v. Bush in 1989. Perhaps I may indicate the circumstances of that offence because it may give the Committee some indication of the kind of cases which are still coming before the courts. The appellant pleaded guilty to buggery of a woman. She had been living with him for over a year before they separated. At the time the woman was pregnant and subsequently gave birth to a child; the appellant meanwhile married someone else. About three months after they had separated, the appellant visited the woman in her home and was admitted after he threatened to kick the door down. They spent the night together and sexual intercourse and buggery took place. The appellant was indicted for rape and buggery but was acquitted on the charge of rape. He was sentenced on the basis that the buggery took place with the consent of the woman who was 26, and he received an immediate sentence of nine months' imprisonment.

In giving judgment in the Court of Appeal, Mr. Justice Auld said: Counsel who appears on behalf of the appellant submits that in an appropriate case it is an offence which no longer requires a custodial sentence. We do not go that far. It would be difficult to do so in the light of Parliament having recently increased the maximum sentence for this offence from one of 14 years to one of life imprisonment".

He added: While we cannot accept counsel's submission that this offence should attract no custodial sentence, we feel it can be reduced from a figure of nine months".

Accordingly, the court substituted a sentence of three months' immediate imprisonment in its place.

A great deal has been said and written about the need for equality in law between the sexes. There have been many articulate pleas, not least in this Chamber in the four hours or so of the debate tonight, for sexual freedom for adult men over the age of 16, as in some cases Members of the Committee have argued, and in other cases, over the age of 18. The latter provision has found favour in another place and here tonight.

I ask the Committee: can it be right for a form of private sexual behaviour with consent, which is legitimate when it takes place between two men, to attract an immediate prison sentence when it involves a man and a woman? I suggest that it cannot. It may be said by the Minister that a change in the law of this nature would lead to the wrong message of approval for anal sexual intercourse being sent from Parliament at a time when we are all aware of the dangers in connection with AIDS. But I suggest that such an argument, if it were to be advanced, would be fanciful in the extreme.

The idea of anal sexual intercourse is, I suspect, repugnant to most people. Is it likely that those who feel that repugnance, as a result of any decision by the Committee of this House or indeed Parliament as a whole, will cast aside that repugnance, change their minds, consent and take part in an activity in which they would not otherwise wish to engage?

Equally, can it really be right that it is the law which prevents people engaging in this activity when, among other things, the health risks of anal intercourse are well known and would themselves, one would have thought, provide a deterrent to those likely to be deterred? On the other hand —and I go back to the point I made at the beginning—many members of the public are wholly unaware of the legal position in relation to this matter.

It may be said, I suppose, as was said in relation to the immediately preceding amendments, moved by the noble Lord, Lord Ponsonby, that the Bill is not a sexual offences Bill. However, another place, like the Committee tonight, has considered the Bill a suitable conveyance for the decriminalisation of offences of this very nature in relation to young adult men. Surely, the argument that criminalisation of this kind of behaviour inhibits the participants from seeking medical attention where it may be necessary is every bit as valid, if not more so, for women as for men.

Perhaps the reason that the nettle of this matter was not grasped back in 1967 or subsequently is that there was no vociferous pressure group to argue for it, or perhaps Parliament was simply too mealy-mouthed to grasp a subject which many people find distasteful.

It is a matter of urgency because people are being sent to prison for the offence today. If the Government do not choose to take this opportunity to rationalise an area of legislation which is almost wholly unenforce-able, which is anachronistic, inequitable and draconian in its penalties, if the long arm of the law is still to try to reach behind the bedroom door to wave its finger of disapproval at adult men and women in this way, then those who say that the law is an ass will be right. I hope that in his reply the Minister will feel that he can accept the amendment.

The second amendment in the grouping, Amendment No. 164CB, is a very modest measure indeed. I hope that it will find favour with the Minister. All it does, or seeks to do, is to put the male complainant in a sexual offence in exactly the same position as the woman who makes a complaint of that nature. People were, I suppose, increasingly sickened by the way in which, in trials involving sexual allegations, a woman's past history was paraded in cross-examination as a means of discrediting her testimony and sometimes, I am afraid, perhaps intimidating her also. As a result, restrictions were imposed by the law on the extent to which cross-examination of that nature could take place without the leave of the judge. In practice, what happens is that after the complainant—the female complainant at present —has given her evidence in chief and before cross-examination in the absence of a jury, the defence counsel who wishes to ask such questions must seek the judge's leave. That normally involves giving an outline of the reasons why he wishes to do so, the relevance of those questions to the defence, and the extent of their scope. Having heard from defence counsel and the counsel for the Crown, the judge gives a ruling. I personally have never known a judge refuse to allow relevant questions to be asked in those circumstances.

There was anxiety, before that change in the law was made, that it might interfere with the ability of the defence to conduct the case properly. But that has not happened. What I am sure has happened is that some people with valid complaints have been encouraged to come forward when previously they might well have feared prying questions, unrelated to the trial, about their past sexual history. Surely there can be no justification for leaving a male complainant exposed when the law has accepted that a female complainant is entitled to, and should have, protection. All that the amendment does is to extend the present provisions in that way. I beg to move.

8.30 p.m.

Lord Campbell of Alloway

Perhaps I may put the other side of this argument—not for the sake of argument, but because I personally believe that the other side of the argument is right. I shall be brief. The object of the first amendment, Amendment No. 164CA, is to decriminalise a maximum sentence of life imprisonment for consensual anal intercourse. In practice, the man goes to prison for three months and the woman does not. But why should the man not go to prison? It cannot happen unless the man takes a certain initiative. It is a serious offence. The Committee may think that this is carrying so-called equality before the law a little too far. I think that a man owes a certain duty to a woman. I will not go into the matter, but I dissociate myself from what has been said this afternoon; namely, that the law has no moral role in setting the standards.

As to the second amendment, years ago when I first took silk my first brief was to defend an alleged member of a paedophile gang who preyed on the young at railway stations —a sort of "Cathy Come Home" affair. He was duly and rightly convicted at the Old Bailey But the Court of Criminal Appeal quashed his conviction on certain counts on the ground that similar fact evidence ought not to have been admitted because it was so prejudicial. In that case, in those circumstances (which are not those in the amendment) the judge, in the absence of the jury ruled that it was right to admit such evidence. But this is another situation. Other members of the gang in that case conducted what we call a cut-throat defence in which they sought to place the responsibility for the blame on my client. There is no doubt, notwithstanding the most careful directions in the summing up, that that had an effect.

The question arises on this amendment: where there is a multi-count indictment, where there are several defendants and where some of them are jointly charged, is it not unfair to the co-accused merely to allow the discretion to operate if it is unfair to the accused? Ought not the balance to be, as presently held, as to what is unfair, full-stop. Therefore, with respect to my noble friend—I must not call her my noble friend, she is my learned friend who has great experience of the courts, greater perhaps than mine in criminal matters—I have my doubts as to whether this amendment might not operate unfairly in favour of the accused but against another accused. For those reasons I oppose it.

Lord Ackner

I always sympathise with the noble Earl, Lord Ferrers, when he groans at the sight of lawyers disagreeing and he has to thread his way through the disagreement. I am bound to say that I commend the initiative of the noble Baroness Lady Mallalieu in bringing this matter before the Committee.

The noble Lord, Lord Campbell, said that buggery with a women is a serious offence. That is as the law stands. But it is totally unjustified if buggery between consenting males aged 18 or above in private is not. I respectfully submit that it is totally insupportable, with the law changed in that direction, and changed in that direction to a less wide extent some years ago, to maintain that sex discrimination.

The noble Baroness referred to the consequences in criminal law, a matter in which she is an expert. Perhaps I may refer, from my experience many years ago, to its relevance in civil law. One of the evils that was identified by the Wolfenden Commission was the opportunity given to blackmailers to blackmail the homosexual so long as the homosexual offence was a criminal one. Exactly the same situation occurred in my experience in a brief that I had as a young QC. A husband and wife indulged in this sexual activity, to the wife's satisfaction—indeed it was the only method of satisfaction which the wife enjoyed. They fell out some years later. She presented a petition making a series, according to my instructions, of unfounded allegations, including anal intercourse without her consent — knowing, of course, that that was an allegation of a criminal offence. He could not in that situation— because consent was no defence—contest that petition. He had to throw his hand in, and, on the basis that she did not persist in the allegations of the anal intercourse, pay her very sizeable maintenance, which was wholly unjustified. That is a civil consequence of the anomaly of the law in this situation.

I quite understand that the Government do not wish to extend further legislation on the subject matter of sexual offences. The Government's reluctance is wholly understandable because they were not responsible for the introduction of Clause 139. But being landed with Clause 139, a clause relating to homosexuality on which they said there was to be a free vote, this is one of the consequences. You cannot just drop a curtain and say, "Very well, this has been introduced; it is within the purview of the Act, a free vote, and we will do whatever you say", and then say that it has no further consequences. That seems to me to be a myopic approach to legislation in the important criminal legislation field.

With regard to the second amendment, again, all that the noble Baroness seeks to do is to say that what is good for the goose is good for the gander. If there are to be prosecutions in regard to homosexual offences, just as in rape cases, then this particular limit to cross-examination, which is unjustified and requires the protection of the court, should exist.

Again, having been obliged to let in the subject matter of Clause 139, this is all part of the inevitable consequences. If this opportunity is not taken, then these wholly absurd anomalies in the law will continue, and continue until when? —until there is a new sexual offences Act? There have been so many references to sexual offences in this Bill in one form or another that one anticipates with a certain degree of relief the absence of sexual offences legislation for a little time to come. But to put off the day seems to me to be merely closing one's eyes to the inevitable, and continuing anomalies in the law which the legislation is intended to cure. Therefore I strongly support the amendment.

Lord Renfrew of Kaimsthorn

I should like to support Amendment No. 164CB in particular. To a layman—I hesitate to rise among those of legal eminence who disagree on these matters—it seems to be a straightforward matter of common sense, although I realise that in this field common sense is not always the best guide. But we are speaking of someone—for example, a man —who has been indecently assaulted or assaulted with intent to commit buggery and the person who has been assaulted is clearly the complainant. It seems altogether appropriate that the complainant should not be subjected to cross-examination about other aspects of his personal life or past relationships. In just the same way—as the noble Baroness so effectively argued—we accept that, when a woman complains of being raped, it is not appropriate in this day and age to cast all kinds of aspersions on her past life. What is relevant is whether or not she has been raped. What is relevant here is whether or not the offences have been committed. I feel that the amendment is entirely coherent and is a piece of tidying up which, as the noble and learned Lord said, must follow upon the various other matters that we have been discussing.

With regard to Amendment No. 164CA, I have sometimes felt during the debates this afternoon that in 20 or 30 years' time people reading some aspects of the debate—about buggery, sodomy, consensual acts between males and so on (and we have not even discussed the distinctions between buggery and sodomy but no doubt that is a matter that we can leave to another occasion) and the different provisions with their different terminologies in the amendments before us, which relate to adults and adult behaviour and indeed consensual behaviour behind closed doors—will feel that it beggars belief to have debated such matters in such a manner.

I entirely agree with the amendment proposed by the noble Baroness. As a result of the matters which have now been agreed in the other place and in this Chamber, this legislation must follow logically. To take up the words of the noble and learned Lord, what is good for the goose is good for the gander. I am sure that many Members on both sides of the Chamber would agree. It would be extraordinary to leave this provision as an offence on the statute book when consensual acts of a comparable nature between males are no longer criminal. I hope that my noble friend will feel able to respond constructively to the amendment.

One can understand that my noble friend does not wish to grab the tiger by the tail. But the tiger is prowling round him and very difficult for him to avoid. One has every sympathy with the Minister in these circumstances. But surely this is one piece of tidying up that must follow the provisions that have now been agreed by both this Chamber and the other place.

Lord Monson

Unlike my noble and learned friend Lord Ackner, I am not a lawyer in the course of disagreeing with another lawyer. In fact, I am not a lawyer at all. If the noble Earl, Lord Ferrers, should groan, it will be for a different reason. Whatever may be said about Amendment No. 164CA, it cannot be denied that the noble Baroness, Lady Mallalieu, most certainly has logic and consistency on her side, especially if one takes the view—as I have always done and as the Government apparently do now—that adults have a perfect right to take risks with their own health and safety.

It will be very interesting to see how the Government react to the amendment. Presumably they will support it, since the noble Earl, Lord Ferrers, in replying to the amendment in the names of the noble Lord, Lord Mayhew, and the noble Earl, Lord Clanwilliam, made it clear that the Government have no particular objection to buggery as such but merely disapprove (I hope that I have copied correctly the noble Earl's words) of homosexuality in general. Those words should be noted: not homosexual activity but homosexuality. So even chaste expressions of homosexual inclinations are disapproved of by the Government.

I repeat that the noble Earl said that the Government have no particular objection to buggery as such amid all the other forms of activity of which we have been talking. So, in logic, they should support the first amendment of the noble Baroness.

8.45 p.m.

Lord Renton

I am opposed to Amendment No. 164CA. In the first place, I feel obliged to make a purely technical objection to it. The amendment states that: it shall no longer be an offence for a man and a woman both over the age of 18 to commit buggery". In the nature of things a woman is incapable of committing buggery. She can be the passive agent in the act of buggery. She can aid and abet the offence. But she cannot commit it. Therefore, technically, it seems to me that the proposed new clause is wrong.

I want to go a little further. In the course of a long life my understanding has been that whatever men may feel about being the passive agents in buggery, women have the very strongest objection to it because of the pain it causes and because of its unnatural character. It would surprise me very much indeed to find that it is realistic to legislate in this way. Therefore, quite frankly, I hope that the noble Baroness will not press Amendment No. 164CA,

With regard to Amendment No. 164CB, I have nothing to add to what my noble friend Lord Campbell of Alloway said.

Lord Monson

Before the noble Lord, Lord Renton, sits down, is he aware that a month or so ago a women's magazine recommended buggery to its female readership on the grounds that it could be a very pleasurable activity? I must say that that astonished me but presumably the editorial staff had done their homework and knew what they were talking about.

Lord Renton

All I can say is that it is the first time that I have heard of that being so.

Lord Wigoder

The noble Lord, Lord Renton, makes two points about the first amendment. One is that by the nature of their being, although a man can commit an act of buggery, a woman cannot do so. She can only be a party to it. Surely two men who commit an act of buggery with each other both commit the act of buggery. In those circumstances, I can see no difference between two men who commit the act and a man and a woman who commit it.

The other point made by the noble Lord is that many women object to the practice. There are many men who object to the practice. So far as the women who object are concerned, the amendment will not apply. It is only where the woman consents—which means freely consents—that this amendment applies.

I do not want to repeat any of the arguments used by the noble Baroness, Lady Mallalieu, or the noble and learned Lord, Lord Ackner. I think it sufficient to say from these Benches that it seems to me that on grounds of logic and fairness the case that they make out for the two amendments is quite overwhelming.

Lord Clifford of Chudleigh

One point that seems to have been lost at the moment is that the plain fact of life that we are talking about is anal intercourse. One can call it buggery but it remains anal intercourse. Whether one is male or female, there is one passage for faeces. If we are to talk about this subject, we must understand that the Government, as we have already heard this evening, have spent a lot of money, taxpayers' money, warning people of the difficulties that will ensue should they practise anal intercourse and should they be bisexual and pass on the disease called AIDS.

There cannot be any discrimination at all when it comes to anal intercourse. Both the male and the female have an anus. I do not feel that we should forget that it is the taxpayers' money that we are discussing at the moment and we are trying very hard to stop such a disease as AIDS spreading in this country.

Earl Ferrers

I am always deeply touched by the words of the noble and learned Lord, Lord Ackner, who sympathises with me and who says that I groan at the sight of lawyers disagreeing. The noble Lord, Lord Monson, also said that I groan. I was not aware that groaned. I never groan at lawyers disagreeing with each other. I enjoy it enormously. It happens constantly because no two lawyers ever agree, not even when the noble and learned Lord, Lord Ackner, is one of them. I am amazed by their silver tongues and how they all manage to produce perfect arguments in total disagreement with each other. I only wish that I had that facility. However, I am a layman and do not.

I wish the sympathy which the noble and learned Lord extended to me this evening had been extended to me last week when he moved the amendment on criminal injuries compensation. There was not much sympathy then and perhaps he might like to extend a little of that to me later on.

Lord Ackner

The noble Earl overlooks that there was total agreement on that occasion and sympathy was therefore not called for.

Earl Ferrers

It seems to me that the noble and learned Lord is less than generous. If there was total agreement then that was the one occasion when sympathy was required.

I understand the position put forward by the noble Baroness, Lady Mallalieu. As usual she made a forceful case and when she does it is sometimes difficult to think that there may be a contrary case. She is saying that it is absurd—a point underlined by the noble and learned Lord, Lord Ackner —that buggery between consenting heterosexuals should be an offence when buggery between two homosexuals should, if not be acceptable, at least not be an offence. In that the noble Baroness has a forceful point.

The noble and learned Lord, Lord Ackner, said that he was amazed by the amount of sexual offence amendments which have cropped up in the Bill. So am I. He said that it would obviously result in it not being necessary to produce a sexual offences Bill later on. That is one view. However, the Government are often castigated for introducing legislation in a hurry and are told that not enough thought was given to it, that it is a knee-jerk reaction and so forth. Yet here we are producing some extensive amendments —we have had a range of them this evening—on a sensitive and deeply complicated subject at the end of the parliamentary process of the Bill. I suggest to the Committee that, important though these matters are—I would not for one moment diminish their importance—they need a little more thought given to them than the time available between now and when the Bill will require Royal Assent.

Amendment No. 164CA would make legal in England and Wales the buggery of a woman with her consent and that would be a significant change in the law. I do not believe it is an issue which has been the subject of wide debate outside this Chamber—no doubt it has been widely debated with vigour by the legal community who are the people who normally come up against these problems. There is clearly a great deal of force in the argument that as it stands the law can catch people who are not prosecuted and, it could be said, should not be prosecuted. But what form any reform should take is more difficult to decide.

The noble Baroness proposes an age of consent of 18. If your Lordships favoured an age of consent for homosexual acts of 21, that might have been the right age at which to allow the buggery of a woman with her consent. Others, including the Criminal Law Revision Committee in 1984, have argued for the age of 16 because that is the age at which a young woman can consent in law to other sexual acts. If a woman can consent to a normal sexual act at the age of 16, it may be said that she ought to be able to consent to an unusual form of sexual act also at 16.

The problem is not as straightforward as it seems. As I explained on earlier occasions, the Government do not wish to see the Bill used as a vehicle for a change to a number of provisions in the sexual offences area. I should like to consider carefully the arguments put forward on both this amendment and the following one. The noble Baroness gave an eloquent exposition of the case for the male victim of a serious sexual assault. There is, of course, a good deal of force in her argument that cross-examination about a person's sexual history may be just as unpleasant for a man as it is for a woman. But the effect of her amendment would be to confer a protection on men which is considerably more extensive than that which the law allows for women, though the law applies only to victims in rape cases.

Some would argue that the protection of women is also too narrow. I certainly would not dismiss that argument. But any extension of the law in this way affects the defendant's right to make his defence in the way in which he chooses. The amendment would therefore restrict the evidence which can be placed before the jury.

I say again that it is a difficult and sensitive matter. These are substantial issues and require closer examination than they have so far received during the passage of the Bill and at such a late stage in its proceedings. I should like to consider what has been said. I cannot give the noble Baroness any undertakings at this stage, for the reasons I have given, to alter so many different facets of the law on sexual offences. However, I should like to give greater consideration to what has been said.

Lord Harris of Greenwich

I welcome the noble Earl's remarks. If he is prepared to look at the matter, that will give many of us a sense of gratification. But I am bound to say that I find it extremely difficult to see how an amendment on these lines can be resisted, given the presence in the Bill of Clause 139.

I understand the Government's difficulty. They would no doubt prefer to introduce a sexual offences Bill. Clause 139 is in the Bill because the Long Title was as broad as it was. The Table Office in the House of Commons accepted Mrs. Currie's amendments and other amendments to the Bill for their debate. The fact that we are discussing this issue therefore is due to the Government's Long Title. That being so, we should look at the question on its merits.

I find it immensely difficult to see how the principle behind the amendment can be resisted, given the clearly expressed decision of the House of Commons in the matter and the decision at which we arrived only an hour or so ago in relation to homosexual offences. I repeat that I welcome the fact that the noble Earl will look at the matter. No doubt many of us will wish to raise the matter again if he is unable to come forward with any proposal at Report stage.

Earl Ferrers

I can understand that. However, the noble Lord, Lord Harris, will recall that he and others —he is not alone in this—criticised the Government for taking decisions too quickly without enough thought and consideration. Yet here we are in June making major alterations to the law regarding sexual offences.

With respect to the noble Lord, because another place decided to alter the age of homosexual consent from 21 to 18—which your Lordships confirmed this evening —does not necessarily affect what happens in regard to the consensual agreement to heterosexual buggery. The two do not necessarily go together.

I shall certainly consider what has been said. But I do not want the noble Lord, Lord Harris of Greenwich, to think that I shall therefore come up with a wonderful answer in a few weeks' time which will solve all the problems. They go much deeper than one simple amendment.

9 p.m.

Lord Harris of Greenwich

There is always a temptation to repeat one's own excellent arguments on this point and I shall do my best to avoid falling into that trap. However, the fact of the matter is that, given the decision the Committee has taken on Clause 139 and the decision taken by the House of Commons by a substantial majority in the same direction, it is an absolute absurdity to keep this offence on the statute book, particularly when it attracts a penalty of life imprisonment.

Lord Annan

I hope that the noble Earl will feel able to take this on a little further. It is an absurdity in the face of the very forceful arguments, as the noble Earl has been so good in saying, put forward by the noble Baroness. I took it that what he meant by that was that the argument is incapable of being controverted, but that he did not know whether he could swing it at the next stage of the Bill. We understand that there are difficulties which the Government might face; but I very much hope that he will be able to take it a little further.

Baroness Mallalieu

I am grateful for the support from noble Lords on all sides of the Committee and also for the limited encouragement which the noble Earl has given. I was troubled to hear him say that he thought that consideration of this proposal so far as concerns the first amendment might require more time than the passage of the Bill to the stage of Royal Assent would allow. When the noble Earl has had time to consider what has been said, I hope that that will not prove to be the case. For tonight I would propose to ask for the leave of the Committee to withdraw the amendment; but I make it clear that I shall return to it at the Report stage if the noble Earl does not have proposals of his own in relation to this and the subsequent amendment to bring before the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164CB and 164CD not moved.]

[Amendment No. 164CE had been withdrawn From the Marshalled List.]

Clause 140 [Extension of Sexual Offences Act 1967 to the armed forces and merchant navy]:

Lord Boardman moved Amendment No. 164CF:

Page 113, line 20, at beginning insert: ("( ) The provisions of this section are subject to subsection (5A) below.").

The noble Lord said: I am in a perhaps happy position of moving an amendment the principle of which I believe has the support of most of the Committee. In effect it says that homosexual conduct in the Armed Services and in the Merchant Navy—to condense my speech I shall not refer specifically to the Merchant Navy—will continue to be a ground for administrative discharge. Unfortunately, I have been unable to persuade the Government as to how this can best be done. To avoid misunderstanding, it is probably necessary and helpful if I briefly run through the procedure which exists at the present time.

Under the Sexual Offences Act 1967 homosexual conduct in private if someone is over 21 is not an offence. However, Section 1(5) says that subsection (1), shall not prevent an act from toeing an offence (other than a civil offence) under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957".

So the exemptions for homosexual conduct being an offence which were extended to private individuals in the 1967 Act were never extended to the Armed Services.

In 1992 the Select Committee on the Armed Forces made a recommendation that the criminal law for members of the Armed Forces and the Merchant Navy should be changed so as to be the same as for civilians. In accepting that, the Minister then responsible said: It is not intended to alter the present disciplinary climate of service life".

The result is that since 1992 this has not made any difference to the administrative discharge procedure which had previously been adopted; but nor have mere been any criminal prosecutions. It may be helpful if I quote from what the Minister of State in another place said on 12th April 1994: Since then"—

referring to the Select Committee report— we have not been prosecuting in such circumstances It remains our policy, however, that homosexual activity is not compatible with the special conditions under which service personnel live and work. Service personnel found to be homosexual or who engage in homosexual activity will continue to be discharged from the services".—[Official Report, Commons, 12/4/94; col. 170.]

I agree, and that is what I am intending, by this amendment, to put on the face of the Bill.

We should address three questions in looking at the amendment. The first is whether the Armed Forces should continue to be able to discharge service personnel who are homosexual and those who engage in homosexual activities. I do not think there is any doubt there, bearing in mind the. Minister's statement that I have just read out, and I do not believe that there will be any argument from the Front Bench that that should not remain so. Homosexual conduct in the Armed Services is completely incompatible with working in service conditions and service life. The question is: how do we do it? One way would be to provide that Clause 140 should not stand part and thus keep the law as it is today whereby homosexual practices in the armed services are an offence which could lead to prosecution but preserving the right to have administrative discharge. However, I think that the pass on that has already been sold. The Government have accepted decriminalisation.

So what can we do? What I suggest we do is precisely what I am seeking to do in the amendment —to make it clear on the face of the Bill that although this is no longer a criminal offence, it is conduct for which service personnel can be administratively discharged. Unless that is done and put clearly on the face of the Bill, then the first time that an administrative discharge is brought about after the criminal aspect has been repealed there will be a massive lobby saying in effect, "You cannot by Act of Parliament say such conduct is legal and then discharge a person for it. If you meant to do that you should have made it clear in the Act that such a change was not to affect the administrative powers to discharge." I am asking that it be made clear on the face of the Bill.

I accept that powers of administrative discharge relate to a great many causes, events and attitudes which are perfectly legal. A man can be administratively discharged for all sorts of things; I imagine that he can be discharged for having flat feet. But what is the difference here? We are repealing a section which says that this matter is a criminal offence. We are saying that it is no longer a criminal offence. We have never had a section of an Act saying that having flat feet is a criminal offence. We are repealing the provision with no reservation or qualification of the Bill itself.

It is reckoned that administrative powers of discharge can be exercised. That may or may not succeed when it is challenged, as I believe it will be, in the courts and perhaps in Europe. Somehow the matter will be challenged. I believe that the Government will have a difficult task to explain why—particularly if they reject this amendment—they were never prepared to put this provision on the face of the Bill. Did they really mean that they intended to go on with administrative discharges when they were not even prepared to say so on the face of the Bill?

I ask the Committee to recognise the problems that would exist. Why not say precisely what is intended; namely, that service personnel can be discharged for homosexual conduct but that they will not be prosecuted in the courts for such conduct? I believe that that is what my noble friend on the Front Bench wants to achieve. So why not be prepared to say so? If that is done, then everyone knows the position. It can be included in the terms of engagement for service personnel. It may well be said that that would create a precedent. I hope it would. It is time (is it not?) when we mean something to be put in an Act of Parliament that we say so. We should not leave it for people such as noble Lords or judges to try to interpret what is meant. We should say so clearly on the face of the Bill. We are not in any way adding to the obligations of the Government. The provision is saying specifically what I believe my noble friend wants to achieve.

There is one other point I wish to raise relating to the constitution. I have been irritated, as other noble Lords may have been, by the media challenging our right to make changes to the Bill. We in this House have a particular right to challenge parts of the Bill, nowhere more so than as regards the part now being debated. A very large proportion of Members of this House are of an age and maturity that means we served in the Armed Forces. In 1967, when the Bill was passed, the Armed Services were exempted from the freedom for homosexual conduct given to private individuals. That is a section which it is now sought to repeal.

At that time, being closer to the war years, a very large proportion of the Members of that House had experience of the Armed Forces. No doubt for that reason they welcomed the exclusion of the Armed Forces from the freedom given elsewhere. Through no fault of theirs, today in the other place there are very few honourable Members who have had the experience which many of us in this House have had or who can be aware of the difficulties of service life such as those of discipline which would arise if homosexual conduct was allowed to go unchallenged.

We should look particularly at what happened as regards Clause 140. That was introduced by an Opposition Back-Bencher at Third Reading at 12.45 a.m. It has never been debated in the other place.

A noble Lord

Good heavens!

Lord Boardman

That is how this clause came in. It was 12.45 a.m. at Third Reading and here we are expected not to challenge it. There was only one question asked. That was whether anyone who was dismissed because of the change proposed to the Bill would be entitled to receive large damages from the European Court. The question was no doubt asked being mindful of what had happened in the case of the pregnant mums. That was the one question asked and it was not answered. I am sure that my noble friend would have a happy answer to it. Even so, it shows the cursory examination which this matter was given. Not only do we have a right but a duty in this House to challenge and examine this clause. I hope that, based on the collective experience of your Lordships to make amendments, we shall support the amendment I have tabled on what I believe to be a matter of the greatest importance: discipline and good conduct in Her Majesty's forces. I beg to move.

Baroness David

In view of what the noble Lord has just said, may I ask whether he would agree that some people were quite right to challenge Clause 138, which was brought in at about the same time of night by Dame Jill Knight?

Lord Boardman

I am sorry. I did not follow the noble Baroness's question. Perhaps she could put it again and I shall try to answer it.

Baroness David

Dame Jill Knight brought in an amendment—about midnight, I think—which is now Clause 138 of the Bill. It was about the use of foetuses, ovaries and so on. I presume the noble Lord would have supported this Committee in opposing and questioning that.

Lord Boardman

I have not considered Clause 138, nor have I read the debate on that clause. I really cannot answer the noble Baroness's question.

9.15 p.m.

Lady Saltoun of Abernethy

I should like to support the Motion that Clause 140 should not stand part of the Bill. Some months ago I had a letter from a neighbour in Scotland, who said: As a practising Christian and father of teenage children, I am totally opposed to this. When I was a teenager I was a Merchant Navy cadet and was constantly exposed to sexual harassment by homosexuals on board ships, railway stations, etc. Every day we read in the media of sexual harassment and the seduction of young boys by homosexual teachers, clergymen, youth leaders, etc. Lowering the age of consent from 21 to 18 will only put our children further at risk". When young people are in a closed community, as happens in the Navy or the merchant navy on board ship, or in an army barracks or camp, or on an RAF station, they are much more vulnerable to unwanted attentions of this kind, particularly from persons senior to them in rank, than they would probably be in civilian life, although one can envisage situations in civilian life where this would not be the case. I shall not go into details of why I think it is important that they should be afforded a degree of protection. The noble Baroness, Lady Young, did all that for me in her splendid speech on the last group of amendments, but I think that protection for young members of the Armed Forces is very important.

Lord Craig of Radley

I support the amendment of the noble Lord, Lord Boardman. Some may choose to argue that it is not in the best interests of the Armed Forces to set themselves apart from the social and moral values which become fashionable and by and large acceptable, and legally so, in contemporary society. Indeed, if the services are not in step on such issues it is incumbent upon them to be able to defend their stance with the force of logic and with a conviction based on far more than mere emotion or prejudice. On these sensitive and highly charged issues we must try to follow such guidelines.

The Armed Forces do not lend themselves to the concept of freedom from discrimination. I am not referring to ethnic discrimination, as will become clear. For very good service reasons we discriminate against, for example, some human handicaps and disadvantages. We insist on certain minimum standards for eyesight, for hearing and for height. We require, depending on the field of employment, special capabilities, motor skills and intellectual attainments. It is thus not reasonable to insist, when it comes to sexual proclivity, a very human condition, that it is wrong for the Armed Forces to discriminate or that it is wrong for them not to adopt the perceived contemporary civilian norm.

The services, for sound operational reasons, can find no place, for example, within their ranks for the physically handicapped, the poorly sighted or the hard of hearing—gunners of maturer years perhaps apart. We judge these discriminations against the operational and other needs of the services. Obviously we must have fit and healthy men and women of courage and commitment to carry out a whole range of demanding and stressful activities, including conflict. Similar tests must surely be made on the issue we are addressing now. To the argument that it is not fair to discriminate against homosexuals, all I would say is that if it is in the services' interests to discriminate, the law of the land and of the European Union should not stand in the way of such discrimination. It is and it should remain lawful for the services to be selective and restrictive in this area. I believe that over the years the services have, as with drugs and infidelity, dealt with these human issues in a sensitive and practical way. Cohesion and trust between individuals of a service unit or platoon are the bedrock of fighting capability, team spirit and morale. We cannot afford gratuitously to jeopardise these fundamental requirements of a fighting force. Decriminalisation of some aspects of homosexual activity per se is not the key issue for the services.

I therefore support the noble Lord, Lord Boardman, because I am anxious to go as far as possible to ensure that what is current service practice in this area is given the force of law. As I understand it, while supporting the legality of administrative discharge, this amendment would in no way weaken the current ability of the Armed Forces to deal with any offence outside the parameters of age, consent and privacy as a criminal act, just as it would be seen and dealt with elsewhere. Secondly, a service disciplinary offence, which may include a homosexual act, may still be dealt with as such if it is likely, for example, to be conduct prejudicial to good order and service discipline. The clearer this position can be made in legislation, as well as to the individual servicemen when they sign up, the better.

Finally, am I right in my concern that we no longer have complete confidence that European law may not one day attempt to rule that discharge on the grounds of homosexuality is discriminatory and illegal, and that this could apply whether discharge was by court martial or administratively and, even worse, be made retrospective and/or liable to compensation? The amendment tabled by the noble Lord, Lord Boardman, may not successfully deal with that eventuality but it strongly sets out to support existing practice. It puts down a firm marker and is thus better than the Bill's present approach, which does nothing positive to protect the services' essential requirement to remove a practising homosexual. I strongly support the amendment.

Lord Vivian

I rise wholeheartedly to support my noble friend Lord Boardman in tabling these amendments. It is worth reminding the Committee that in the early hours of the morning at the end of the Report stage in another place an honourable member tabled the repeal of Section 1(5) of the Sexual Offences Act 1967, thus, if passed, allowing homosexual acts in the Armed Forces. It was accepted with no public debate and without a vote. I therefore believe that we should debate fully the amendments that are now before us.

I understand that Her Majesty's Government have not opposed the repeal of that part of the Sexual Offences Act 1967 which relates to homosexual acts in the Armed Forces because it is deemed prudent to narrow the gap between civil and military law. The Government have stated that in 1991–92 the Select Committee on the Armed Forces Bill 1991 considered the regulations dealing with homosexuality in the Armed Forces and recommended that homosexual activity that is legal in civilian life should not in itself be an offence under military law. However, it has been and still is—and I very much hope that it will continue to be —Ministry of Defence policy that homosexuality is incompatible with service life.

Although in the Armed Forces Acts there is no specific service offence of homosexuality as such, offenders can be charged under provisions dealing with disgraceful conduct of an indecent kind, or conduct prejudicial to good order and military discipline, or possibly but very rarely, scandalous conduct by officers.

However, those formal military charges are seldom used. Normally, administrative discharge procedures are taken to release a homosexual from the services when required. That course is less damaging to an offender's future career than formal charges being preferred with an ensuing court martial.

The Ministry of Defence currently has no plans to change that policy. But once the bedrock of the law is removed from the Armed Forces Act by the repeal of the Sexual Offences Act 1967, before your Lordships in this Bill, the case to sustain administrative discharge for homosexuals will become very weak. It will be so weak that I believe that the intense and strong lobbying which can be expected from a large homosexual community will attempt to do away with the administrative discharge procedure if it is not backed up by law.

Until now, the services have not been particularly concerned that homosexual acts in the Armed Forces might become legal, because the administrative discharge system exists to remove homosexuals from the Armed Forces. At present, it has no reason to doubt that that system will continue. I believe that if it had been aware of what I have just said about the likely removal of the administrative discharge procedure, all three services would be very anxious about homosexual acts in the Armed Forces being made legal by the repeal of the Sexual Offences Act. The amendment now before the Committee should ensure that the administrative discharge procedure becomes law and thus will enable it to continue.

It has become well recognised through the ages that the Armed Forces require a special code of discipline backed by sound military law from which stem the high standards of integrity, loyalty, honour and morals which this country rightly expects from its services.

Like many other noble Lords, I have convened, reviewed and promulgated courts-martial proceedings, and have reviewed and confirmed administrative discharges as and when necessary. I believe that the Select Committee on the Armed Forces Bill 1991 made an unwise recommendation when it proposed that because homosexual activity is legal in civilian life, it should be legal also in the Armed Forces. It would have been far better if it had left matters as they stood and had not raised the issue for public debate.

I should now like to concentrate upon why homosexual activities are incompatible with service life. Members of the Armed Forces are often required to serve in conditions in which, both on and off duty, they are unavoidably living in closed communities, sometimes under stress. Such conditions and the need for absolute trust and confidence between all ranks—an essential ingredient for successful operations—require that the potentially disruptive influence of homosexual practices should be excluded.

Homosexuality causes offence, polarises relation-ships, undermines military discipline and, as a consequence, damages morale and unit effectiveness. It can lead also to bullying—a serious matter which the services have been trying to stamp out. Above all, it is necessary to ensure that those in authority over younger or junior men do not use their position to coerce or persuade those in their charge to perform acts in which they would not otherwise engage.

As a general question, we should ask ourselves whether we should be happy to allow our children or grandchildren to enlist into an organisation within its own confined environment in which homosexual acts are legally permitted. I believe that all parents would be extremely unhappy with that situation, and it could well lead to difficulties with regard to recruitment.

Homosexual acts can lead also to the contraction of AIDS. If servicemen catch that disease, they are liable to be discharged from the Armed Forces. With the recent draconian cuts to services force levels, even one loss of that nature cannot really be afforded. The likelihood of servicemen contracting AIDS would be much reduced if Clauses 140 and 141 were amended in the proposed way.

My noble friend the Minister has informed me that the Bill confers no entitlement to compensation for services personnel administratively discharged by reasons of homosexual activity. However, if Clauses 140 and 141 are allowed to pass unamended, and as they stand in the Bill, anyone who might be discharged in the future could argue that discharge for a legalised activity cannot be sustained and that all service orders and MoD regulations should be changed to reflect the primary legislation. In this instance, I believe that those people would claim for large sums of money in compensation.

All those factors imply that if we wish to keep our Armed Services with the high traditional standards of discipline, honour, loyalty, integrity and morals, I have no doubt at all that Clauses 140 and 141 should be changed in accordance with the amendments tabled by my noble friend Lord Boardman. I strongly urge noble Lords to give him their full support.

9.30 p.m.

Lord Monkswell

I did not intend to intervene in the debate. However, the previous two speakers have almost forced me to do so. The last speaker talked in terms of situations in which we would be happy for our children and grandchildren to be involved. He spoke about the possibility of homosexuals being members of the Armed Forces. I believe that we can all accept that the first experiences that most people in public schools get of homosexual activity is effectively in public schools.

Noble Lords

Oh!

Lord Monkswell

I am sorry, that was not terribly well presented grammatically speaking. However, perhaps I may put it this way. The homosexual experiences that have been the experience of most Members of this place who have had homosexual experiences will arise from their attendance at public schools.

Noble Lords

Oh!

Lord Monkswell

Is the previous speaker saying that in order to protect our children and grandchildren we should actually stop them going to public schools? If he said that, I would welcome the idea for different reasons.

Before the previous speaker made that point—which, I must admit, I found rather bizarre—what concerned me was the contribution of the noble and gallant Lord, Lord Craig of Radley. He talked about the employment or the involvement of disabled people in the Armed Forces in the context of homosexuals being members of those forces. To start with, the concept of equating disability with homosexuality is, I believe, a little perverse, if one can use that rather curious expression.

However, the point that I should like to make to Members of the Committee and especially to the noble and gallant Lord is as follows. We have only to think of one the most heroic figures from the Second World War, Douglas Bader who was an air ace, a hero and very well respected member of the Armed Forces. What was his situation? He was legless; in other words he was disabled. But, by the reckoning of the noble and gallant Lord, Lord Craig of Radley, he should not have been a member of the Armed Forces because it is not right that a member of those forces should have any infirmity of eyesight, of height or, indeed, of hearing unless he is a gunner.

Lord Craig of Radley

I should just like to point out to the noble Lord that his referring to Douglas Bader as incapacitated after he had already learnt to fly and was a very skilful pilot is not quite fair.

Lord Monkswell

That exactly makes the point. How can one define someone as ineligible to be a member of the Armed Forces if he or she has some disability? By the reckoning of the noble and gallant Lord, Lord Craig of Radley, it appears that gunners can be deaf but every other member of the Armed Forces must be sound of wind, limb, eyesight and hearing. We know from our own practical experience that that is not necessarily true. I put it to the Committee that to think that members of the homosexual community are ineligible to be members of the Armed Forces is a palpable nonsense.

Lord Clifford of Chudleigh

I totally support—

Noble Lords

Lord Campbell of Alloway!

Lord Campbell of Alloway

I thank the noble Lord for giving way. I shall be brief. I wish to support this amendment which assumes that Clauses 140 and 141 stand part of the Bill. I agree with the noble and gallant Lord that it should be lawful for the services to remain selective. I agree with the sentiments expressed by my noble friend Lord Vivian, but I wish to try to allay one of his concerns, if I may, in a moment.

It simply is not possible—Members of the Committee have touched upon this—to predict the course or the nature of our future domestic legislation. It simply is not possible to do so for that of the European Community which is supranational, or indeed to predict the course of the decisions from Strasbourg on the Convention on Human Rights where there is no principle of precedent. So surely it is understood that the Government may wish—as it has been put—to close the gap between the civil and the military law, and that they may be unwilling to accept this amendment which I and other Members of the Committee have supported, having regard to what they see as a plethora of imponderables.

However, if my noble friend the Minister were able to give firm and satisfactory assurances from the Dispatch Box that to maintain discipline in our Armed Forces and merchant ships, the current practice of administrative discharge for various types of conduct will remain in place, and that the types of conduct relevant to administrative discharge will be fully explained on enlistment, that could conceivably be acceptable to the Committee because such assurances, as a matter of law—I come to the point of my noble friend Lord Vivian—in any proceedings would serve as an aid to clarification and interpretation of this clause in the UK, in Strasbourg or at Luxembourg. That is because the substance of the amendment of my noble friend Lord Boardman would be subsumed. Since the stain of criminality would be removed, the gap would be closed without in practice putting the maintenance of discipline at hazard.

For my part, as I have said frankly to my noble friend the Minister, for the reasons fully explained by my noble friend Lord Boardman, I believe that the Government are mistaken in not having an amendment along these lines on the face of the Bill. I shall not weary the Committee with my reasons because I have given them to my noble friend the Minister.

However, I accept reluctantly that the distinction in law between the effect of the amendment or an amendment along these lines and such assurances as could be given, although real and of substance, could be not so great when put to the acid test in proceedings, which is what is worrying some Members of the Committee.

There are two aspects which are requisite. The terms of enlistment—which is the contract of employment —should explain not only the process of administrative discharge, on which there is crude entitlement but no compensation but also the full nature of all types of conduct relevant to that process. If that is done, at least there would be a measure of security. I accept that it is preferable that that should be put on the face of the Bill as proposed in the amendment, which I still support. However, there is a distinction which, depending on such assurances as are given, the Committee may be prepared to accept.

Lord Clifford of Chudleigh

I am very pleased that the noble Lord, Lord Boardman, has produced the amendment. I am even more pleased that I follow my noble friend Lord Craig, who spoke so well on this subject.

In this so-called civilised society legislation has been enacted to eliminate discrimination and to encourage responsible behaviour. But where individuals fail in their responsibility to society there is an increasing tendency to attribute that to some broader social cause —to freedom of choice or, dare I say to the Minister, failure of government. That individual freedom has led to a decline in both individual and corporate responsibility, to an erosion of respect for the law. The promotion of individual rights has contributed to an ambivalent attitude towards an individual's responsibil-ity to society.

The aim of military service is to foster group cohesion, a decisive factor in countering terrorism and in battle conditions. Today we have more soldiers on active service duty than we had at the height of the Cold War in, say, 1989. In a group of young, robust, heterosexual people that cohesive factor can easily disappear where there is a loss of trust and confidence in those who lead or operate alongside you in warlike and stressful conditions. If the proposed legislation were to be approved, there would be an adverse effect on the efficiency of the Armed Forces. It would be detrimental to their role.

When joining the Armed Services, where operational duties are a likely possibility, self-sacrifice for one's fellow servicemen is accepted. That accepted code requires self-discipline. To arrive at that position, the Armed Forces insist on a more exacting code of discipline. Clauses 140 and 141 deliberately undermine such a code.

The Ministry of Defence accepts that servicemen and women are subject to both criminal law, applicable to civilians, and military law, which makes certain subjects an offence which may not be so in civilian life. Let us not fool ourselves. Servicemen have leave; they can walk out of barracks, but they have to return by a certain hour. The soldier leaves the barrack gates and automatically is in civvy street; he is subject to civilian law. He can put on an earring. He can be subject to taking drugs. Should Clauses 139 to 141 become effective he can be free to indulge in anal intercourse without fear of being discharged when he returns to barracks at 0800 the following morning.

We have heard, and I reiterate it, of appeals to the European Court. As a result of being rendered ineffective and not fighting fit through pregnancy, certain females serving within the Armed Services have lost their jobs. Subsequently they have been paid thousands of pounds in compensation. Next we shall see girls who join the Armed Services using pregnancy as an excuse to gain a quick buck, if noble Lords will excuse the expression. However, a far more frightening scenario may present itself should Clauses 140 and 141 be accepted. Soldiers infected by AIDS resulting from anal intercourse, whose blood is a river for that lethal, debilitating disease of AIDS, might cut themselves during training, going over an assault course, and subject all their fellow soldiers to the risk of infection and to losing their careers. They would naturally claim compensation for the loss of their livelihood. Those servicemen could be "called out" at a moment's notice for a national or international emergency.

In the four years until 1993 a total of 22 army court martial cases related to homosexuality and 296 service personnel were administratively discharged, of whom 50 per cent. were women. "Administrative action", for noble Lords' information if they do not already know it, may be taken where an officer or another rank receives a civil or a military conviction, whereupon the officer must resign and the soldier will be discharged. Shall we not encourage favouritism, lack of trust—that essential bond in the Armed Forces—if Clauses 140 and 141 remain part of the criminal justice Bill?

I wish to quote from The Military Ethos, the Ministry of Defence Discipline and Standards Paper dated 21st August 1993, which states: Homosexuality, male or female, is incompatible with military service because of the close physical conditions in which soldiers often have to live and work. Homosexual behaviour can cause offence, polarise relationships, induce violence, and as a consequence morale and unit effectiveness suffer. Anyone who admits to, displays the orientation of, or indulges in homosexuality will be required to resign or be discharged. Homosexuality which is illegal under civil law or which has aggravating disciplinary features may also lead to prosecution". Ideally, we all wish to live in peace, to love another, whether a person be of the same or the opposite sex. I recognise and would applaud males and females who may live together helpfully, in harmony. But I abhor the unnatural physical homoerotic relationships that add increasingly to a society physically diseased. Through lack of standards and self-discipline, those relationships lead our society to the same fate as its despotic predecessors, the mighty Greek and the powerful Roman empires, to crumble under the influence of sexually disorientated bureaucrats.

In truth, procreation is a God-given natural gift, the result of normal intercourse. The elected Members in the other place—I understand that in Her Majesty's Cabinet no member has ever been in the Armed Forces —should take note of a statement made by this year's winner of the Templeton prize. He said: Unfaithfulness to truth destroys dignity". I shall add, "and destroys mankind". I support the amendment.

Lord Mottistone

The Army and the Air Force have had their say. Perhaps I may put in a few words on behalf of the Navy.

It is my practical experience of buggery occurring in warships that—and I am happy to say not in warships for which I was directly responsible, but indirectly—it is the most desperate situation when it occurs, even in the biggest of ships. It is a canker in the midst of a ship's company of people working closely together. It is desperate. It is extremely important that it should not be allowed to spread, and one has to deal with it good and fast.

This is not the time to say how desperate it is for the young sailors who are suborned by the older ones, those who were the subject of earlier debates—and that is why I did not speak then—but, by God!, that is terrible too. It is a terrible thing in a sea-going armed service, particularly because people are thrown together for long periods of time. That would apply equally to those in merchant ships, which are the subject of other amendments and which I also support.

For that reason, I very much support the amendment of my noble friend Lord Boardman; but I see it as a fallback position on getting rid of Clauses 140 and 141 altogether. It is dreadful to think that another place let them slip in when no one was looking. God knows what the Government were doing when that happened! I think they ought to be castigated and someone ought to resign. It is terrible to allow this canker to come into the Armed Forces. Look what happened in the United States! Silly little Mr. Clinton said that he would let in the queers, and he was quickly told not to do it.

Lord Harris of Greenwich

Is it really appropriate to make an attack on a foreign head of state with whom this country has the closest relationship? It seems to me highly questionable whether that is in accordance with the general way in which we conduct our business in this House.

Lord Mottistone

I am sure that the noble Lord is pompously correct. Let us return to the subject: whether we allow Clauses 140 and 141, which we are debating together, to remain part of the Bill. I implore Members of the Committee not to leave those clauses in the Bill. That would be the best course. I entirely agree with my noble friend Lord Boardman and other Members of the Committee. The trouble is that, whatever happens, if Clauses 140 and 141 remain, even if my noble friend's amendment is accepted, the provisions will be squeezed out by some hideous legislation from Europe or somewhere, possibly by a government who are not so determined to make sure that the Armed Forces are efficient. Therefore, we could find ourselves very hampered if we allowed the clauses to remain in the Bill. I therefore plead with the Committee as a first step to support my noble friend's amendment so that we have that in the Bill anyhow, and then, when it comes to voting on whether the clauses stand part, to vote them out.

Lord Aldington

I should just like to ask my noble friend one short question. What is it that has changed since 1967, when some of us were here, the Bill was debated and the settlement was agreed? It was agreed on the basis of the decriminalisation of homosexual acts, subject to age and the matters about which we have talked, and on the basis that that would not apply to the Armed Services. It would not apply to the Services in the sense that on the face of the Bill there was a specific reference to the powers of the Services through the Army Act, the Navy Act and the Air Force Act to keep this as an offence. What has happened since then?

If something important has happened since then, why was it that Her Majesty's Government did not move an alteration of the law? Why did they have to wait until 12.45 one morning in the other place, when an honourable gentleman who speaks on home affairs for the Liberal Democrats moved an amendment which the Government at once accepted, with the extraordinary proposition that it is wrong that the Services should have offences which are not civil offences? How did we fight in the war on that basis? It does not matter whether it was the Navy, the Army or the Air Force; looking back 50 years, we were together for six years, the same group of people. How could we have had the sort of situation that is now proposed in the Army and kept the high spirits and high efficiency of that time? Whether it was the Air Force, the Army or the Navy, that would have applied. To decriminalise demoralises in this sense. I beseech the noble Lord, whose grandfather was present when we discussed this matter in the famous debates in 1966–67, to tell us what has changed since those days.

Viscount Mountgarret

I wonder whether I might follow my noble friend Lord Mottistone in what he said. I entirely agree with him, and my noble friend Lord Boardman, except in just one area. I have to say that I do not think that it is quite right to refer to heads of state, on whom we depend so much, in quite such a way on this sort of matter. I am sorry to have heard him speak in that way.

I am getting just a little bit muddled here. So far as I can see, nobody has raised the matter of allowing Wrens on to naval ships. I think that to permit that was a most extraordinary decision on the part of their Lordships in the Admiralty.

Noble Lords

Not relevant!

Viscount Mountgarret

The result has been that it would appear to be incorrect and indeed a disciplinary offence for sailors to fraternise with Wrens; but here we are suggesting that it would be perfectly all right for sailors to fraternise with one another. That seems to me to be rather odd. I would rather have sailors fraternising with Wrens than sailors fraternising with sailors. I entirely support my noble friend's amendment.

Lord Ashbourne

Perhaps I might remind the Committee that in the 1950s, long before I had the honour of being introduced into this Chamber, the late Lord Montgomery of Alamein, whenever the subject was being discussed, used to paint a picture of an aircraft carrier. In those days, as the Committee will appreciate, feelings and sentiments in the country at large about homosexuality were not the same as they are today. We seem to have slipped a long way down a rather desultory slope. The late Field Marshal used to say: "Imagine an aircraft carrier, a tin box, floating around in the Pacific Ocean with 3,000 men locked up inside it, if homosexuality were legalised". In those days, everybody realised that it would be a farcical situation and could not be tolerated.

Lest the Committee should think that I am digging too deeply into the past, yesterday by good fortune I had the opportunity to speak to a senior officer at present serving in one of our aircraft carriers. He told me the interesting statistic that the average age of personnel in the aircraft carrier in which he was serving was 21.7 years. The ship's company was very young. I said to the officer, "What will happen if homosexuality is legalised in the forces down to the age of 18?" He was appalled at the thought because obviously it would be legalised for a large proportion of the ship's company.

I tell the Committee those two anecdotal stories merely to try to show that in the balance of the past and present there is a strong move against homosexuality in the forces. The argument was made most effectively by the noble and gallant Lord, Lord Craig, with all the authority that he brings to the matter as a former Chief of the Defence Staff. I therefore urge the Committee to oppose the Questions that Clauses 140 and 141 stand part of the Bill.

Lord Forbes

I support the amendment of my noble friend Lord Boardman. As one who sets value on moral standards and the Christian faith, I deplore the continual lowering of standards that is taking place. Very often it goes on under the guise of progress.

We are now engulfed by the tide of permissive times, which I believe has brought about many of our troubles and indeed has led to the spread of AIDS. The one bastion and pillar of strength for upholding standards is our Armed Forces. But now, not only is that priceless national asset being eroded by cuts in the Armed Forces but, by Clauses 140 and 141, the Government themselves are condoning the lowering of standards in the services.

If we believe in standards we should call a halt to the lowering of standards, especially in the Armed Forces. I support the amendment and urge the Committee to vote so that Clauses 140 and 141 do not stand part of the Bill.

The Earl of Balfour

I feel very strongly that this Chamber must never allow any legislation to pass which may appear to weaken the discipline and morale of the Armed Forces and our merchant navy.

When I was a merchant navy officer any sexual fraternisation of any kind, male or female, was forbidden. Therefore, I hope that Clauses 140 and 141 do not stand part of the Bill. I should like to add that what the noble Lady, Lady Saltoun, said about young people going to sea is perfectly correct. It is possible for a person to go into the merchant navy as soon as he reaches school-leaving age. If either Clause 140 or Clause 141 stand part of the Bill, I very much hope that the amendment of my noble friend Lord Boardman is accepted.

The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne

) Perhaps the Committee will allow me to intervene at this stage. I am well aware from the number of Members who are still anxious to speak that the Committee would like to pursue the debate on this subject. I have been listening with keen attention to what has been said during these important exchanges. I hope that I am not being unfair when I say that I descry a number of assertions, particularly by several of my noble friends, on which I believe I can reassure them. It may help the remainder of the evening's proceedings if I put the Government's position as clearly as I am able. Therefore, with the Committee's permission, I should like to intervene now.

I recognise fully the anxiety of my noble friend Lord Boardman in this important matter. The amendment proposed to Clause 140 is designed to make it perfectly clear that the repeal of Sections 1(5) and 2 of the Sexual Offences Act 1967 and corresponding provisions for Scotland, will not prevent the continued discharge of homosexuals from the Armed Forces and the Merchant Navy. I listened particularly keenly to Members' strictures in this matter. As my noble friend pointed out, there is probably a higher proportion of experienced noble Lords in this Chamber—I say immediately that I use the word "experienced" in the sense of their having served in the Armed Forces—particularly compared with the denizens of another place. And I want to make it perfectly clear at the outset that in relation to the Armed Forces the Government entirely agree with the aims implicit in the amendment of my noble friend. But Her Majesty's Government are equally clear that the amendments are not needed in order to achieve that aim. Perhaps the Committee will allow me to explain why.

My noble friend Lord Aldington asked what has changed. I can reassure my noble friend and a number of other Members who spoke—particularly the noble and gallant Lord, Lord Craig, to whom the Committee rightly listens with keen attention, particularly on military matters—in respect of the Government's fundamental position. It is perhaps worth restating it. It derives from our clear acceptance two years ago of two recommendations by a Select Committee in another place—something which my noble friend Lord Boardman recognised during the course of his introduction. The first recommendation endorsed the long-standing policy that homosexuality is incompatible with service life. The Select Committee said clearly that the time had not yet come to require the Armed Forces to accept homosexuals or homosexual activity.

I can reassure my noble friend Lord Mountgarret that, although we agree with that, we would go further. I would add that we do not foresee any time when homosexual activity in the Armed Forces would be considered acceptable. I say to the noble and gallant Lord, Lord Craig, and to my noble friend Lord Vivian that it remains the view of the Government that the special conditions of service life preclude the acceptance of homosexuals and homosexual behaviour. As my noble friends repeatedly pointed out, service people must live in close proximity to others in single sex accommodation. At times they have to work under enormous stress and in close physical contact with their colleagues. As many Members of the Committee pointed out during the course of the debate, those factors and the need for absolute trust and confidence—a point specifically made by my noble friend Lord Vivian— within and between all ranks make the circumstances quite different from those in civilian life.

We are aware of the responsibility we have for the many young people who join the services—again a point made by many Members during the course of the debate. We have a clear responsibility to these young people and to their parents which would be undermined by accepting homosexual behaviour in the forces.

The second Select Committee recommendation was that homosexuality of a kind which is legal in civilian law should not constitute a criminal offence under service law. We consulted the three services with very considerable care and we decided that we could accept that recommendation as well. Accordingly, my honourable friend the Minister of State for Defence Procurement, as long ago as June 1992, announced that in another place. He announced that Section 1(5) of the Sexual Offences Act 1967 would be repealed as soon as the legislative programme allowed. Indeed, I gave a similar undertaking to the noble Lord, Lord Williams of Elvel, in this very Chamber as long ago as 1993.I refer noble Lords to Hansard of 9th July last year.

In the meantime, service personnel, it was announced, would not normally be prosecuted if the homosexual act would have been legal in civilian life. My honourable friend's announcement was generally welcomed in another place. So when Clauses 140 and 141 were introduced in another place as amendments to the Bill before us the Government supported them in view of the fact that they were entirely consistent with announced government policy. The question of whether they were sneaked through has to be seen in that context. The amendments were down. They were considered; and they were considered not only by Her Majesty's Government but also by Members of another place. Therefore, the clauses are the means of enacting the 1992 announcement in respect of homosexuality in the Armed Forces and a subsequent similar announcement about the Merchant Navy. It is on that basis that I commend them to the Committee.

I think it is worth setting out again our basic position. Homosexual activity will no more be tolerated in the Armed Forces of the future than it is today or indeed has been in the past. But we do not normally intend to prosecute participants in such activity in cases where the activity would have been legal in civilian law. I have said that it has been the policy of the past two years not to initiate such prosecutions. In fact, it seems on closer research that this has been the general practice for rather longer even than that. In the period between 1987 and 1990 335 members of the services were required to leave because of homosexuality. Of those, 296 were discharged as a result of administrative action—that is to say, by the means we are using today and will use in the future to discharge homosexuals—and only 39 were dismissed as a result of a conviction under the service discipline Acts; in other words, about 10 per year. I understand that this relatively small number of convictions was mainly in respect of offences which the services would still intend to prosecute under criminal law, and if the Committee will allow me, I shall come back to that point in a few minutes.

I should particularly like to address myself to the noble Lord, Lord Campbell of Alloway. He made an extremely valuable contribution to our debate. In order to remove any doubts on the point I should like to emphasise that the repeal which we are considering does not prevent the services from prosecuting when there has been an offence under civilian law; for instance, where there has been no consent; where one of the participants is under lawful age; where the activity has not been carried out in private; or, in addition, where, because of the circumstances surrounding the hom-osexual act, a service offence has been committed—for example (I say this to the noble Lady, Lady Saltoun) —abuse of rank or otherwise legal sexual activity aboard one of Her Majesty's ships. Indeed, we would prosecute heterosexuals in those circumstances. In this respect there will be no change.

I should also like to stress, for the purposes of clarification, that we shall continue with the current policy and indeed the current practice that those who engage in homosexual activity will be discharged from the services. Normally, unless they have been convicted in the circumstances I have just described, they will be administratively discharged. Administrative discharge, as many Members of the Committee with more experience of the services will know, is used as the means of dispensing with the services of several hundred personnel each year, for a variety of reasons connected with the individual's unsuitability for continued service. It is not a novel weapon in the services' armoury of management devices. It is the way in which we have released the great majority of male homosexuals and lesbians for some years now; and it is the means by which we shall continue to do so.

I have laid emphasis on the continuity between past practice and policy and I believe it right that I have done so. It is indeed the practice and policy we shall be adopting in the future. I can therefore commend Clauses 140 and 141 not as legislative shots in the dark, or as some sort of experiment which Parliament is about to foist on three nervously apprehensive Armed Services. We are proposing to bring the law into line with practice, which the services have found to be perfectly workable. Therefore, it is worth considering that this is perhaps not a great new legislative initiative, but a very minor device indeed to bring these two matters into line.

I am conscious of the time, but perhaps I can now turn to the specifics of the amendment of my noble friend Lord Boardman. As I have already said, of course I welcome the intention behind the amendment. I understand clearly that it is to underpin the services' policy on the discharge of homosexuals. Therefore, I am sorry that I must question the Committee on whether it is the right device for doing that; namely, to put the intention on the face of the Bill, as my noble friend suggested.

I believe it is clear that the amendment has to do with the employment relationship between the services and individual members of the Armed Forces. It is seeking to confirm at the same time the services' ability, which I believe derives from prerogative powers, to determine what constitutes grounds for discharge. It is in fact introducing a new concept into the criminal justice Bill which is concerned here with the disciplinary framework of the forces. I suspect that to confuse the disciplinary framework with the employment relation-ship is of itself undesirable and introduces a confusion.

I shall explain a little further what I mean by that. Clauses 140 and 141 concern service discipline—the military equivalent, one might say, of criminal justice and therefore within the scope of the present Bill. On the other hand, my noble friend's amendment is talking about discharge and that is a process which has nothing to do with service discipline. It is an administrative process for releasing unsuitable individuals and a quite separate process from the machinery of service discipline.

It is important that the two aspects should not become intertwined. Again, I apologise for taking up the time of the Committee, but I want to explain why I find it very difficult to accept my noble friend's amendment, much as I would like to do so. We do not want to be put into a position where every time in the future we create or abolish a military offence we would be expected to express a view in the statute—"on the face of the Bill", to use my noble friend's phrase—as regards the effect on employment relationships. I believe I am right in saying—and I say with due diffidence before so many distinguished lawyers—that never before have the two aspects been linked in service disciplinary legislation. We believe that it is a persuasive reason not to set a precedent now. I hope that, in particular, my noble friend will agree.

If that is not argument enough, perhaps I may also suggest to my noble friend that his amendment could perhaps have even the opposite effect of what he intends. The linkage that I have described could just conceivably lead to a future situation which I believe my noble friend and I would wish to avoid; namely, where our present freedom to determine what is tolerable behaviour and what behaviour gives grounds for discharge might be impaired. Because of that freedom we do not need the amendment to enable us to continue with the present policy.

As if I needed to reiterate it, that policy is that homosexual activity is incompatible with service life and that homosexuals will therefore be required to leave the services. In terms of interpretation, the repeal of Section 15 of the Sexual Offences Act 1967 will be interpreted as just that and will not be read across to have implications for the employment relationship. Therefore I would suggest that we do not need the amendment. Perhaps if I may be impertinent to my noble friend, he is pushing at a door which is already fully open. I hope that that encapsulates reasonably clearly what our position is, and I hope that it gives some satisfaction to my noble friend.

However, with the permission of the Committee, I should like to mention two other points which have been raised and on which perhaps I can give some assistance and help, in particular to my noble friends. The noble and gallant Lord, Lord Craig, and my noble friend Lord Boardman were worried about possible European law which might oblige the Ministry of Defence to retain homosexuals in the Armed Forces. I cannot guarantee that the present position will remain because, as your Lordships know, there is no European directive actually in place at present which requires such a course of action. If there should be a change along the lines which my noble friend and the noble and gallant Lord have suggested, without any derogation for the British Armed Forces, we would have to recognise that, just as in the case of pregnant women, European law would override the terms of any domestic legislation on the matter, whatever intended safeguards the amendment might incorporate and indeed whether or not the law carried criminal penalties in terms of British law. There are a number of other matters which your Lordships have raised, but I hope I have said enough to convince my noble friend that he and I are ad idem on our objectives although we may perhaps differ a little as to the most effective way of achieving what we want.

With your Lordships' permission, I should like to cover briefly the merchant navy aspects. My noble friend Lord Orr-Ewing has expressed considerable reservations about certain clauses. The clauses here, and in particular Clause 141, provide that members of the merchant navy should cease to be subject to any special and additional criminal liability for homosexual acts on British merchant ships. The decision to decriminalise homosexual acts by repealing Section 2 of the Sexual Offences Act 1967 was announced in a Written Answer in another place last December. We believe that the clauses here achieve the purpose which was announced then and, as in the case of the Armed Forces, also amend the equivalent Scottish and Northern Irish legislation.

The basis of the decision was essentially to bring the merchant navy into line with the Armed Forces. The fact that the provision appears to have been used very little in the merchant navy is some encouragement to us. The shipping industry, including the unions, had been widely consulted before the announcement was made, and the general consensus within the shipping industry was clearly in favour of repeal. Again I look to my noble friend Lord Aldington when I say that unlike in 1967, the seamen's union—now the RMT —is now clearly in favour of repeal. The Department of Transport is taking steps, in consultation with employers and unions in the shipping industry, to amend the code of conduct for the merchant navy. The effect of these amendments will be to make it an offence against the code to demand or solicit sexual favours from another member of the crew or to make unwelcome sexual advances to another member of the crew. Such offences, which will apply equally to heterosexual and homosexual conduct, will be subject to the industrial disciplinary sanctions provided for in the code of conduct.

My noble friend's amendment seeks—

The Earl of Balfour

Would my noble friend forgive me for asking a question? In respect of ships, the expression has been used of a homosexual act being carried out in private. I would not like two people to engage in a sexual act in a locked cabin on board a ship, if I may put it like that. I should not like that sort of thing to take place.

Viscount Cranborne

I wholly understand what my noble friend says. For that reason we have taken a great deal of trouble over the code of conduct and have had it agreed with the British shipping industry in particular. It has expressed itself wholly satisfied with the code of conduct.

I wish once again to appeal to my noble friend. We want to achieve the same aim. At the same time, technical reasons, which I have endeavoured to explain perhaps at excessive length, make it difficult to accept the amendment, much as I would like to. He and I are ad idem about this. I am advised that it is unnecessary to put the provision on the face of the Bill. I wish also to point out that, under agreements and contracts, the Merchant Navy has sufficient powers of dismissal to meet the points raised by my noble friend.

I am sorry to have to tell my noble friend Lord Orr-Ewing that the amendments are not acceptable to the Government, whose policy to seek the repeal of Section 2 of the 1967 Act was announced last December. I hope that my noble friends will feel able to consider a while the effects of sending the Bill back to another place should they press the Division and persuade the Committee to accept their view rather than that of Her Majesty's Government.

Lord Boardman

I am grateful to my noble friend. I must disappoint him by telling him that, while our objectives remain the same, he has not convinced me that I can let the matter pass. I have had tremendous backing from a great deal of military force. I refer to the noble and gallant Lord the former Chief of Defence Staff and the noble and gallant Lord, Lord Bramall, who had hoped to be here tonight. He had to leave earlier for a Lord Lieutenancy engagement but authorised me to say that he was fully supportive of my amendment. I have also had support from other Members of the Committee who have a great deal of military experience; for instance, the noble Lords, Lord Vivian, Lord Mottistone, Lord Aldington, and so on. They all agree that as the Bill now stands it gives the wrong message to our Armed Forces. I find it impossible to accept that.

My noble friend Lord Campbell suggested that a Statement from the Minister might help to alleviate the position. That cannot be so unless the Bill on the face of it is misleading. Noble and learned Lords will correct me if I am wrong but I understand that reference to Hansard or to Statements can be made only if the Bill is considered to be ambiguous. There is no ambiguity in the clause as it stands.

Perhaps I may remind the Committee of what Clause 140 seeks to repeal. It is: Subsection (1) of this section", that is the section of the 1967 Act which makes homosexual conduct legal if in private and over 21, shall not prevent an act from being an offence (other than a civil offence) under any provision of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957". The clause seeks to repeal that measure and to provide that those acts shall no longer be offences. I accept fully my noble friend's remark that it is the intention of the Government to ensure that military discipline continues as in the past. However, it cannot be sustained against the challenge to come unless we put on the face of the Bill the words suggested in the amendment. They make it clear that military discipline will be maintained notwithstanding the repeal of that section.

I have not tabled a similar amendment to Clause 141. I hope that at a later stage of the Bill we can deal with that clause in the same way as we can now deal with Clause 140. I also understand that the amendment is grouped with the Motion to oppose that Clause 140 shall stand part of the Bill. If, as I hope, this amendment is agreed to, I believe that that will meet the objectives of those noble Lords who wish to oppose that Motion. I believe it should be made absolutely clear on the face of the Bill that military discipline and the requirements of the services shall in no way be prejudiced. I have received a great deal of support, and, therefore, I wish to seek the opinion of the Committee.

10.30 p.m.

On Question, Whether the said amendment (No. 164CF) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 61.

Division No.3
CONTENTS
Ackner, L.	Hanson, L.
Aldington, L.	Harlech, L.
Ashbourne, L.	Harmsworth, L.
Astor of Hever, L.	Harrowby, E.
Balfour, E.	HolmPatrick, L.
Belhaven and Stenton, L.	Jeffreys, L.
Beloff, L. [Teller]	Kimball, L.
Boardman, L. [Teller]	Lindsey and Abingdon, E.
Brabazon of Tara, L.	Liverpool, E.
Bridgeman, V.	Lucas of Chilworth, L.
Brightman, L.	Monckton of Brenchley, V.
Brigstocke, B.	Monson, L.
Brougham and Vaux, L.	Mottistone, L.
Burnham, L.	Mountgarret, V.
Cadman, L.	Moyne, L.
Caldecote, V.	Murton of Lindisfarne, L.
Carr of Hadley, L.	Norfolk, D.
Clanwilliam, E.	O'Cathain, B.
Clark of Kempston, L.	Orr-Ewing, L.
Clifford of Chudleigh, L.	Palmer, L.
Clitheroe, L.	Park of Monmouth, B.
Coleridge, L.	Pearson of Rannoch, L.
Colnbrook, L.	Reading, M.
Courtown, E.	Renton, L.
Craig of Radley, L.	Robertson of Oakridge, L.
Craigmyle, L.	Rodney, L.
Cross, V.	Saint Oswald, L
Cullen of Ashbourne, L.	Saltoun of Abernethy, Ly.
Dean of Harptree, L.	Sharples, B.
Denham, L.	Stanley of Alderley, L.
Dixon-Smith, L.	Stedman, B.
Donegall, M.	Strange, B.
Downshire, M.	Swaythling, L.
Eden of Winton, L.	Tebbit, L.
Elton, L.	Torrington, V.
Faithfull, B.	Vivian, L.
Forbes, L.	Wade of Chorlton, L.
Gisborough, L.	Waverley, V.
Glenarthur, L.	Wharton, B.
Gray, L.	Wynford, L.
Hamilton of Dalzell, L.	Young, B.

NOT-CONTENTS
Addington, L.	Gray of Contin, L.
Addison, V.	Grey, E.
Annaly, L.	Harris of Greenwich, L.
Astor, V.	Henley, L.
Avebury, L.	Hooper, B.
Carmichael of Kelvingrove, L.	Howe, E.
Chalker of Wallasey, B.	Jay of Paddington, B.
Cocks of Hartcliffe, L.	Jeger, B.
Cranborne, V.	Kilbracken, L.
Cumberlege, B.	Lawrence, L.
Darcy (de Knayth), B.	Long, V.
Dean of Beswick, L.	Lucas, L.
Denton of Wakefield, B.	Lyell, L.
Desai, L.	Mackay of Ardbrecknish, L.
Eatwell, L.	Mackie of Benshie, L.
Ennals, L.	Masham of Ilton, B.
Ewing of Kirkford, L.	Monkswell, L.
Falkland, V.	Morns of Castle Morris, L.
Ferrers, E.	Mountevans, L.
Flather, B.	Pender, L.
Gilmour of Craigmillar, L.	Ponsonby of Shulbrede, L.
Goschen, V.	Rea, L.
Gould of Potternewton, B.	Redesdale, L.

Rix, L.	Teviot, L.
Rodger of Earlsferry, L.	Trumpington, B.
Seear, B.	Tugendhat, L.
St. Davids, V.	Ullswater. V. [Teller.]
Stewartby, L.	Wakeham, L. [Lord Privy Seal.]
Strathclyde, L.	Wigoder, L.
Strathmore and Kinghorne, E.	Williams of Elvel, L.
[Teller.]	Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.

10.38 p.m.

Lord Orr-Ewing had given notice of his intention to move Amendment No. 164CFA:

Page 113, line 24, leave out subsection (3).

The noble Lord said: I do not intend to move the amendment as it has already been dealt with by the Minister.

[Amendment No. 164CFA not moved.]

[Amendment No. 164CFB not moved.]

Lord Boardman moved Amendment No. 164CG:

Page 113, line 30, at end insert: ("(5A) Nothing contained in this section shall limit or affect the right of the competent authority administratively to discharge any person serving in H.M. forces or on merchant ships who, but for this section, would have been guilty of a criminal offence.").

On Question, amendment agreed to.

Clause 140, as amended, agreed to.

Clause 141 [Homosexuality on merchant ships and in the armed forces: Northern Ireland]:

[Amendment No. 164CH not moved.]

Clause 141 agreed to.

Lord McColl of Dulwich moved Amendment No. 164D:

After Clause 141, insert the following new clause:

(Promotion of tobacco products

Publication of advertisements for tobacco products.

.—(1) Subject to subsection (2) and section (Defences in proceedings under section (Publication of advertisements for tobacco products)) below, if any person publishes or causes to be published an advertisement for a tobacco product, he shall be guilty of an offence.

(2) Subsection (1) above does not apply to the publication of an advertisement inside a shop used for the retail sale of tobacco products if the advertisement is not capable of communicating directly with persons outside the shop and—

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

1. (i) contains only information as to the price of tobacco products, a warning of the damage to health caused by the use of tobacco products and such other information as the Secretary of State may prescribe by regulations made by statutory instrument; and
2. (ii) complies with such other requirements as may be so prescribed;

• and in relation to any case where only part of a shop is used for the sale of tobacco products or access to a shop ("the inner shop") can only be obtained by passing through another shop, references in this subsection to the shop shall be taken as references to that part or, as the case may be, to the inner shop.

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

1. (a) on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both; or
2. (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or to both.

(4) In this section and sections (Defences in proceedings under section (Publication of advertisements for tobacco products)) to (Power to prohibit or restrict promotion of smoking or tobacco) below "tobacco product" means a product made wholly or partly of tobacco for the purpose of being smoked, sniffed, sucked, chewed or otherwise used orally or nasally.

(5) In this section an "advertisement for a tobacco product" includes any form of communication which might reasonably be considered to promote the smoking or other use of a tobacco product or of tobacco products in general, whether directly or indirectly, other than a communication made by means of the packaging of such a product in a quantity available for retail sale.

(6) In determining for the purposes of subsection (5) above whether a communication might reasonably be considered to promote the smoking or other use of a tobacco product or of tobacco products in general, whether directly or indirectly, regard shall be had to all relevant considerations and, in particular, whether—

1. (a) the name of, or of the producer, supplier or sponsor of, the product, service or event the promotion of which is the ostensible purpose of the advertisement is the same as or similar to the name of, or of a person engaged in the business of manufacturing or otherwise dealing with, a tobacco product; and
2. (b) any word, sign, symbol, picture or other feature which appears in the advertisement or any use of a colour or combination of colours in the advertisement is the same as or similar to any word, sign, symbol, picture or other feature or any use of a colour or combination of colours which is associated with a tobacco product.

(7) A statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 164E to G, 178ZB, 178ZF, 179A and 180A. These amendments are designed to help prevent the uptake of smoking by children. When we debate the advertising of tobacco we must remember that tobacco is still responsible for about one-quarter of all the premature deaths in Britain. Each year almost 50,000 people in their sixties, their fifties, their forties and even in their thirties are killed by tobacco in Britain alone. That is about 1,000 premature deaths each week and these premature deaths from tobacco involve on average the loss of 20 years of life.

Several thousand different chemicals are found in cigarette smoke, 43 of which are known to cause cancer in humans. As the smoke goes into the mouth, throat, lungs and bloodstream these chemicals go all around the body, causing a great variety of different diseases, including cancers of the mouth, throat, larynx, bladder and lungs, chronic bronchitis, emphysema and important diseases of the arteries, including heart attacks, strokes and gangrene of the limbs. Overall, about half of all regular cigarette smokers will eventually be killed by their habit, one-quarter being killed before they reach the age of 70 and one-quarter being killed later on.

Professor Sir Leslie Turnberg, the President of the Royal College of Physicians, informs me that since 1962, when the college produced its first report on the dangers of smoking, over 4 million people have died in the UK because of diseases caused by smoking. This epidemic requires serious attention.

Some have claimed that we have the best record in Europe for reducing tobacco consumption but that does not mean much when one considers how far we are behind the best records in the world set by Canada, New Zealand and Australia. I am sure we all acknowledge the progress that has been made in reducing smoking by the efforts of parents, teachers, doctors, nurses, scientists, and in particular the Royal College of Physicians and by the Government who have set ambitious targets for reducing the percentage of smokers from the current level of 28 per cent. today to a target of 20 per cent. in the year 2000. It is pleasing to note that many of the Government's targets are on course.

The problem is that we are failing to reduce smoking rates among children. The target of the Department of Health was to reduce smoking rates among 11 to 15 year-olds by one-third from 1988 to 1994, but there is no prospect of this being achieved. There has been no significant change in children's smoking rates for the past 10 years. Some 24 per cent. of 15 year-olds were smoking in 1982 and the figure for 1992 is virtually the same.

The problem is that the strategies which have proved effective in encouraging adults to give up smoking, such as price increases, education campaigns and restrictions on smoking in various workplaces, do not seem to be having the desired effect in reducing children's smoking rates.

The child who begins to smoke before the age of 15 is 18 times more likely to die of cancer of the lung compared with someone who has never smoked. However, it is worth pointing out that those who begin to smoke after the age of 25 are only five times more likely to die of lung cancer than non-smokers. So, if the uptake of smoking cannot be prevented altogether but delayed until adulthood, the incidence of lung cancer will be significantly reduced. It is important to emphasise that eight out of 10 regular adult smokers now start smoking before they are 16 years old. If they continue smoking throughout their lifetime half will be killed by diseases due to tobacco. What an appalling waste! We have no moral or practical alternative but to implement a ban both on tobacco advertising and on tobacco promotion in order to provide reasonable protection for our children.

I realise that we are up against the great battalions of the tobacco industry, but that should not deter us from looking carefully at the facts. Smoking causes death, and advertising encourages smoking. To pretend otherwise is absurd. Some have argued that advertising does not affect teenage smoking rates. That is untrue. The Royal Society, our most eminent scientific society, is in no doubt. Last week it issued a message of support saying: Tobacco advertising and related sponsorship are significant factors encouraging children to smoke, and the Royal Society welcomes steps which address this issue".

The president of the Royal College of Surgeons, Sir Norman Browse, said last week: A ban on tobacco advertising and related sponsorship would be a significant advance in the continuing campaign to achieve a reduction in smoking, a major cause of serious illness and premature death".

There is not one eminent medical or scientific society which does not support that initiative.

There is good evidence that a ban on tobacco advertising leads to a reduction in children's smoking. Not only is there a substantial body of peer reviewed scientific research; there is real-life experience in countries where bans have been enacted. Twenty years ago in Norway tobacco advertising and sponsorship was banned and within a few years the smoking rates among Norwegian 15 year-olds fell substantially. Advertising bans have been assessed in three other countries: New Zealand, Canada and Finland. The conclusion of our own Department of Health's review of all four countries indicates a significant fall in smoking which cannot reasonably be attributed to other factors.

When we brief the jury in a British murder trial we ask it to decide whether there is proof beyond reasonable doubt who caused the death. What is appropriate for one death is appropriate for thousands of deaths. We have proof beyond reasonable doubt that tobacco advertising promotes and maintains sales and encourages the uptake of smoking by children.

Many object to the ban on tobacco advertising as an infringement of freedom, and many believe that anything which is freely sold should be freely advertised. In this country we have had a ban on the advertising of cigarettes on television since 1965. We have accepted that because tobacco is so dangerous its commercial advertising and promotion should be limited. The argument that if it is legal to sell it should be legal to advertise was rejected in 1965. Moreover, it is not legal to sell tobacco products to children. There is ample evidence that children see tobacco advertise-ments and they respond to them.

If we are talking about freedom, why cannot we demand that our children be free from the constant bombardment of seductive advertising? It leads so many of them into smoking and premature death—death 20 years before their time.

Successive governments have bowed to pressure from many different sources to proceed carefully and slowly before introducing further bans. We have progressed very slowly indeed and if we now introduce a total ban after a mere 30 years of delay and 4 million unnecessary deaths, we cannot be accused of doing anything in a hurry.

A recent survey indicated that half of all smokers said, "Smoking can't be really dangerous or the Government would ban cigarette advertising". The Secretary of State for Health has said that her department's expert review of the effect of tobacco advertising on tobacco consumption, known as the Smee Report, found that, tobacco advertising does affect total tobacco consumption, not just brand share".

She stated that, further restrictions up to and including a ban could be expected to reduce smoking".

If this measure reduced tobacco consumption by only 1 per cent., it would in time prevent a thousand premature deaths per year.

The noble Lord, Lord Parkinson, has said: I wish tobacco advertising was banned—I think it is an absolute pest. It has only two supporters, the tobacco industry and the Treasury, both of whom benefit enormously from the sales of tobacco but I think it is a curse and I would like to see it discouraged and would welcome a ban on advertising".

I believe that several Members of the Cabinet share his view.

Many hundreds of organisations—medical, health, Church, community organisations, the National Consumer Council, the Royal Colleges, the Imperial Cancer Research Fund, the British Heart Foundation and the Royal Society itself—are making a special plea that the Committee should agree to the amendment. I beg to move.

Lord Rea

The noble Lord, my professional friend, Lord McColl, has outlined the overwhelming scientific evidence of the harm to health which can be caused by smoking. That is now even recognised by the tobacco industry, even if it tries to minimise the harm. Recently a new firm, The Ethical Tobacco Co, has started to market a brand of cigarettes called "Death" in a black packet, and "Death Lights" in a white packet. A recent full page advertisement in a number of newspapers states this to smokers: If you are honest with yourself, you will have to admit that you already smoke death cigarettes. They just happen to be called something else". I understand that the major tobacco companies prevented that firm from advertising its products on billboard sites in the United Kingdom. I wonder why.

It has been said that as smokers choose to smoke products with a health warning on the packet, it is their fault it they suffer. But that argument ignores the fact that tobacco is highly addictive. Its attraction is that nicotine, its active ingredient, not only calms anxiety, making stress more tolerable, but also acts as a mild stimulus to mental function—a fairly unique combina-tion since most addictive substances which calm anxiety slow up mental activity. I refer to alcohol, marijuana, opiates and cocaine, although perhaps not cocaine because it stimulates but does not calm.

On giving up smoking, people feel stress even more acutely than before. Smoking provides an emotional shelter. Giving it up leaves a confirmed smoker feeling exposed, vulnerable and often very irritable. I do not have to describe how difficult it is to give up; many Members of the Committee will have experienced it for themselves or will have friends or relatives who tried many times to give it up before they finally succeeded. Many do not succeed.

This addictive quality, as much as its harm to health, is another strong reason, I submit, for banning tobacco advertising. The Catholic Church, it is said, claims that if it has a recruit by the age of seven it has him for life. If we add a decade, we could say the same for the tobacco industry. Most confirmed adult smokers started well before the age of 20.

As my noble friend said—and in this case he is my noble friend—23 per cent. of 15 year-olds smoke regularly an average of 50 cigarettes a week. Children notice advertising more acutely than adults. The industry knows it and slants its message to them. But selling tobacco products to children is illegal. In so far as advertising affects children—and it does—tobacco advertising is already promoting an illegal product.

Mrs. Virginia Bottomley said in another place on 20th July 1990, when answering a debate on health promotion: There can be little doubt that if cigarettes were introduced today, their production and sale would probably be banned".— [Official Report, Commons, 20/7/90; col. 1340.] The amendment does not attempt to do that; it merely prohibits the advertising and promotion of tobacco products.

Dr. Clive Smee's report, referred to by the noble Lord, Lord McColl, showed that banning tobacco advertising in other countries led to a reduction in smoking of from 4 per cent. to 9 per cent. when accompanied by appropriate health messages. But even if no immediate effect had been demonstrated, does the Committee not think that it is irresponsible to allow the continued promotion of a highly addictive substance which is also a slow but extremely dangerous poison?

The recent voluntary agreement with the tobacco industry, to which the noble Baroness will doubtless refer, moves billboard advertisements a little further away—200 yards —from schools and makes them a little smaller. But as with previous voluntary agreements, I submit that this is a pathetically weak response to the major public health problem of our time.

Lord Glenarthur

I listened with great care to my noble friend Lord McColl and the noble Lord, Lord Rea. I have the utmost admiration for my noble friend in his work as a surgeon: he is noted for his ability in a number of different fields. I am aware that the noble Lord, Lord Rea, is also a doctor and that he speaks from great personal experience of the difficulties caused to many of his patients, no doubt by smoking. I hope that both will forgive me if I say that I find this series of amendments to the Bill about as bizarre—I think that is not too strong a word—as any I have heard over the years in your Lordships' House.

The Bill with which we are dealing is concerned with a number of serious matters connected with the criminal law and public order; everything from secure training orders to rape, sexual offences and prevention of terrorism—a whole raft of different subjects. It deals with a number of issues which are widely regarded not only as offensive but also as dangerous, and a number that are already subject to penalties under the law.

The noble Lord, Lord Rea, referred to the sale of tobacco to those under 16 as being illegal. Yes, it is. But smoking is not illegal. I therefore have to say to my noble friend that I find it quite extraordinary that, notwithstanding the strength of feeling that he brings to this subject, he should seek to introduce these amendments which, among other things, create a penalty of up to two years' imprisonment for someone who publishes or causes to be published an advertisement for a tobacco product.

I must declare a set of conflicting interests, and indeed responsibilities. At a personal level, I dislike smoking—a fact that is not unknown to a number of your Lordships, of whom, occasionally, I try to get upwind in various parts of this building. I have been a health Minister twice, and I am fully aware of the Government's wish to reduce smoking, especially among children which, as my noble friend indicated, is the main purport of his amendment. I very much support the efforts that they are making in this direction. And encouraging efforts they are, as my noble friend Lord McColl explained just now. As chairman of St. Mary's Hospital NHS Trust I am, of course, fully aware of the importance of educating for a reduction in smoking. But I am also alive to the fact that some members of society, be they patients in hospital or elsewhere, will wish to smoke; and I fervently defend their right to do so if they must. I also work for Hanson plc, which owns Imperial Tobacco. That company employs some 2,500 people and generates in excess of £3 billion—£3,000 million —a year for the Exchequer in both excise duty and VAT.

These responsibilities, both to Imperial Tobacco through Hanson and to St. Mary's, are very real and I take them very seriously. But this evening I have an even greater responsibility as a Member of your Lordships' House to state very plainly my very strong opposition to a series of amendments which at the very least simply do not fit the general tenor of the Bill that is before the Committee. Moreover, as I am sure others will say, the amendments are flawed in a number of practical ways.

During the latter stages in another place of the Tobacco Advertising Bill my honourable friend the Parliamentary Under-Secretary of State for Health announced a number of changes to the voluntary agreement on tobacco advertising. That was as recently as 13th May. The noble Lord, Lord Rea, referred to those amendments. But by saying that they cannot be expected to achieve anything like the sort of improvement that he would like to see is going a bit far. These changes can hardly be said to have stood the test of time. It seems to me wholly unjustified to make the claim that the noble Lord, Lord Rea, has just made so soon after they were announced and that it should be part of an attempt to reintroduce the Bill by what some would judge as being the back door.

As well as those arguments of principle, the amendments introduce another very worrying aspect. There are advertisements for countless everyday activities which, if indulged in carelessly, can give rise to risk. What about motor cars? They are widely used and widely advertised, one type competing for market share with another, as is very much the case with tobacco. Yet they are all potentially lethal to third parties as well as to those who are in them. Is my noble friend to try to ban advertising for cars for those very same reasons? And what about alcohol? We know that alcohol abuse is damaging. But even members of my noble friend's profession are unsure where to draw the line, and the vast majority of us, of course, consume it in a responsible way.

Or coming even nearer to home, to a subject with which my noble friend is involved, what about the pharmaceutical industry? It regularly advertises to the medical profession and to others. Can my noble friend say that all those items which are advertised are wholly safe? What about the very large numbers of Pharmaceuticals advertised over the years which have subsequently been found to be not safe, and in some cases to be lethal? I shall largely leave it to others to point to the weaknesses in my noble friend's arguments, particularly his medical arguments. My own belief is that his anxieties—as seriously as he makes the point —are overstated; but he has developed a certain fervour for his cause which I am sure is one to which he will stick.

I end simply by saying that we are all bombarded day in and day out by people who tell us how to live our lives in a more healthy way; and each bombardment is followed by a counter-bombardment, often from within the same profession. Of course we should take my noble friend's remarks seriously in many respects. Of course we should find ways of discouraging smokers. We are already doing so, and the Government have given voice to it. But we certainly should not be party to the kind of heavy-handed, busy-bodying legislation which, frankly, this amendment seeks to introduce, most especially through this Bill.

If the amendment is pressed to a Division, I hope that it is resoundingly defeated. But I hope that my noble friend will be persuaded in due course that the amendments are unsuitable and are out of keeping with the general purpose of the Bill, and that he will be persuaded to withdraw them.

Baroness Seear

I suppose that most, perhaps all, Members of the Committee grew up at a time when nobody had any idea that tobacco smoke was the danger that we now recognise. Therefore it was socially acceptable that we should smoke; and a great many of us smoked a small or large amount with no idea that it carried the health hazards that we now know that it does. If we were starting today from scratch, without that background of smoking as a socially acceptable activity, and with our present knowledge about what smoking does to health, we would find it very interesting to compare the health record of tobacco with the health consequences of drugs which we ban and which we imprison people for taking let alone selling.

I suggest that tobacco smoking does a great deal more harm to health than cannabis. But think of the difference with which we treat the two activities! Because we have been socially conditioned to accept tobacco, we refuse to recognise that it is such a serious hazard. We have to look at it in the light of the knowledge that we now have and not the attitudes with which we grew up when we lacked that knowledge. So I for one very strongly support the amendments put forward by the noble Lord, Lord McColl.

Mention has been made of the loss to the Treasury. I have not done the sums of the cost to the National Health Service of looking after the very large number of people who are ill and have to be hospitalised and given medical treatment because of their response to tobacco advertising. But it must be a very heavy charge indeed. Surely, we are not so "departmentalised" that we cannot put the costs of the National Health Service borne by the Department of Health against the loss to the Treasury of the money that it receives from tobacco advertising.

We need to look at this matter in the light of today's knowledge, given to us by the noble Lord, Lord McColl. It is backed by all the societies that know about the consequences of tobacco to health and the cost to this country in terms of money, lives cut short, consequent family bereavements and all the other consequences, which must be clear to anybody who thinks about the matter.

I very much hope that the Committee will look at this issue not with the memories of tobacco as it was known and thought to be so harmless in the days of our youth, but in today's knowledge of the very dangerous drug that it is.

Lord Ennals

I rise to support Amendment No. 164D and also to support the noble Baroness. Of course it will not be the first time. I declare my interest that I too, as was the noble Lord, Lord Glenarthur, was a Minister with some experience and a smoker with much too long an experience. As was hinted by the noble Baroness, I started to smoke when I was a young soldier. At that time no one argued, as we received our free cigarettes, that this was a danger to our health. We learn more about the danger to our health as every year passes. The figure that it is now possible for the noble Lord, Lord McColl, to bring out could not have been quoted 10 or 15 years ago. When I was a Minister 15 years ago the effect of passive smoking on other people was simply not known. So more and more evidence is being brought before us.

We do not need to convince Members of the Committee that smoking is the most dangerous form of addiction. It is very difficult to break the addiction. As one who has broken it, I know just how hard it is.

Lady Saltoun of Abernethy

Perhaps the noble Lord will give way. Does he think that smoking tobacco is more dangerous than taking heroin?

Lord Ennals

I shall answer that. The number of people who die as a result of tobacco addiction is much greater than the number of people who die from heroin addiction. The number of people who have been treated in hospital as a result of smoking-related conditions is much higher than the number of those suffering from heroin-related conditions. But this amendment, as the noble Lord, Lord Glenarthur, suggested, is not about alcohol; it is not about heroin; it is simply about the smoking of tobacco materials.

The only question before us is whether or not advertising encourages smoking. I am sure that all Members of the Committee would wish to see fewer people smoking, fewer youngsters and children picking up the habit so early in life. Because they pick it up early in life, they are much more likely, as the noble Lord, Lord McColl, said, to continue as smokers and become totally addicted to the habit.

When the noble Lord, Lord Glenarthur, revealed his interest, it was a telling factor. Those who most strongly oppose the amendment are in fact in the tobacco industry. There is no question about that. I know the extent of the pressure.

Lord Glenarthur

I hope the noble Lord will allow me to correct him. I declared a series of interests, one of which was that I have a responsibility towards the health service as well. I hope the noble Lord will balance his remarks—which I believe will go on to criticise the interests I declared—making that responsibility equal with the others.

Lord Ennals

I am glad that that assurance has been given. Certainly when I was Secretary of State—and I have seen it ever since—the tobacco industry was the most powerful influence and the most powerful lobby in trying to stop what the noble Lord is trying to introduce. If we really thought that stopping advertising would substantially reduce smoking, as it has in other countries which have experimented with this proposition— Norway in particular —we would all support the amendment. We must ask ourselves whether or not it would have that effect.

As I say, the evidence from other countries indicates that it does. This is an amendment which was properly accepted and should be properly debated—it is a long time since this Chamber had the opportunity to do so. I therefore support the amendment and the manner in which it was proposed. It would be a great blow against the rising number of youngsters who smoke. There is something illogical in a situation in which we decide we should ban advertising in the cinemas, but not on the public hoardings. What logic is that? If we ban it from the television, we should ban it across the board. I hope the amendment will be carried.

11.15 p.m.

Baroness O'Cathain

Mention has been made of the freedom of the individual to smoke. What about the freedom of the individual who is physically distressed by the smoking of others? And if we are honest, how many smokers do we know who hate the addiction, who wish they had never started and who try so very hard to give it up? Why did they start?

There are all kinds of reasons but I suggest that two particular advertisements have had a profound effect on the young; the Marlboro man and Virginia Slims. The most distressing statistic that we have seen of late is of the increase in young women who smoke. You have to ask why. One reason has to be the widespread view that smoking keeps you slim. How many of us know people who moan that once they gave up smoking they put on weight? The whole fashion industry is slanted towards the image of the slim, trim and brim full of energy young lady. That was well recognised by Virginia Slims. The Virginia Slims advertising linked cigarette smoking to the young lady who excels at tennis and underlined that point by actually sponsoring tennis.

Those of us who have business experience in marketing know full well that advertising works. The late Lord Leverhulme said that only 50 per cent. of advertising works but the trick was to know which 50 per cent. He never, note, said that 100 per cent. of advertising did not work. If even 50 per cent. of current advertising encourages people to start smoking, we are supporting continuing health problems and untold distress to families who watch their loved ones suffer from strokes, heart disease and cancer. I declare my personal interest. I have experience in my close family of all three—all brought about by smoking. The distress that this creates will continue. Why do we allow it? We must support this amendment.

Lord Carr of Hadley

It seems to me that we are in danger of falling into an emotional confusion between ends and means. I am in wholehearted support of the purposes of the amendment. I am not now a smoker myself but I was once. I have done my best to persuade my family of two children—and now grandchildren— not to take it up; and so far with some success although not single-handed in my persuasion of them. However, I think that the argument for this being the right way to achieve our end is, to put it mildly, shallow.

I should have thought that the consumption of unadvertised drugs is rising whereas the consumption among the young of advertised tobacco is at least declining. Therefore, I do not think one can say that getting rid of advertising will automatically lead to a decline. That is a point for argument. All I am saying is that there is no prima facie case for the suggestion.

We need to think about some of the effects. It is very easy—sometimes too easy—to take positions of principle in a free society, but there is all the difference in the world between the control of the amount and the medium of advertising, which has already taken place in tobacco advertising and which personally I strongly support, and actually abolishing it. There is a difference not of degree but of kind and we should be very wary before we embark upon it. It certainly will not stop smoking. It may speed up the decline, which in itself would be a good thing, but people will still be smoking.

What will they be smoking? We ought not to neglect altogether the safety element to the public in any product being supplied by brand names and reputable companies. You cannot support a brand name for any significant amount of time without some sort of advertising. Project yourselves ahead to, say, 10 years from its abolition. People will be smoking. But what sort of cigarettes will they be? With what might they be contaminated? I believe that what will be smoked will be much less safe than what is being smoked already, although that is pretty dangerous, and we should do all we can to discourage people from doing it.

I believe most strongly that intensifying our efforts of education and persuasion, including advertising in that education and persuading, is a better and less dangerous way ahead than just abolishing advertising because that could have side-effects which we do not foresee at the moment and which could be quite unpleasant. We might find that there are very nasty cigarettes indeed being smoked, perhaps in smaller numbers, but causing more deaths.

Lord Avebury

I wonder whether the noble Lord, Lord Carr, has reflected on the fact, as the noble Lord, Lord McColl, said in moving the amendment, that 100 per cent. of the professional organisations involved in looking after people who suffer from the effects of tobacco have made a recommendation that we should pass the amendment. They did not do so without any examination of the evidence. They see the evidence every day in their consulting rooms. If one is asking about statistical evidence, of course there cannot be any from Great Britain. We can only look at the evidence from other countries where a total ban on advertising has resulted in some reduction in consumption. Therefore, it is a reasonable assumption if we did the same we should achieve a similar proportionate reduction in the volume of consumption.

If the noble Lord asks what people will then be smoking and whether such substances will be more harmful to them than those being smoked at present, there is a simple answer. You can legislate to require more information to be put on the packs of those cigarettes which are still to be marketed and sold than there is at the moment. For example, I do not know whether there is an obligation for the total nicotine content to be shown on packs. If not, there ought to be. After this amendment is passed, as I hope it will be, let us proceed with the Department of Health in deciding, on the advice of the medical profession, what are the components of tobacco which cause the most harm and how that should be notified to the potential victims on the packs of cigarettes they buy.

I wish to address one of the arguments which the noble Lord, Lord Glenarthur, put to the Committee— that is to say, that this is not the right place to insert an amendment of this sort into a Bill which is concerned with a number of other matters. Of course it is concerned with a lot of other matters; it is concerned with everything except the kitchen sink. In effect what the noble Lord is saying is that if you are walking along a towpath and you see someone drowning, you might not wish to fish him out of the canal because it is the wrong time of day. Someone has advised you that it is a difficult moment to do it.

Here we have an opportunity to rescue many thousands of people. The noble Lord, Lord McColl, gave the figures. He said that a total of 1 million people have been killed. When the noble Lord, Lord Glenarthur, began to speak, he talked about the "difficulties" caused by smoking. What a mealy-mouthed word to use when talking about the assassination of 1 million people by this wicked industry! I do not know how the noble Lord can reconcile the interests he declared. I have a great deal of respect for him. When he was a Minister at the Foreign Office I was very grateful to him for many replies which he gave me which were of mutual interest. But I cannot understand how, at one and the same time, he can be a director of a hospital trust and have a high position with a company which is selling poisonous products to members of the public.

Lord Glenarthur

I cannot let the noble Lord, Lord Avebury, get away with that. The fact is that all of us have many conflicting interests and responsibilities. I went on to say that one of the greater responsibilities which I felt I had was being a legislator in your Lordships' House. It is all very well for the noble Lord to quote an instance which I certainly did not. He referred, for example, to somebody like myself walking along a towpath and choosing whether it was inconvenient, or right or wrong, to go to help somebody who was perhaps drowning. That is way beyond the point. The fact is that my noble friend has introduced an amendment dealing with one particular subject— tobacco advertising —in so far as it relates particularly to children. This Bill does not seem to make any mention of a number of other issues, of which I cited three examples, which are also dangerous to some degree. That is why I said I believed that this was a busy-bodying piece of legislation introduced by my noble friend and why I dismiss it in the way that I have.

Lord Avebury

The noble Lord has to reconcile his own conscience with the fact that he is involved in the St. Mary's Hospital Trust and also in Hanson plc. I am quite certain that if he has asked for advice from medical experts at St. Mary's Hospital they will have given him the same recommendation as the professional organisa-tions which the noble Lord, Lord McColl, was talking about earlier. He has had to weigh the advice he has been given by the staff of St. Mary's Hospital Medical Trust with that given by the directors of Hanson plc, and the latter have obviously won. It is as simple as that.

Lord Glenarthur

I am sorry to come back once more. The fact is that there are no doubt a number of doctors at St. Mary's—I know of several—who smoke. I am simply trying to point to the fact that I do not believe that this piece of legislation is the right vehicle for my noble friend to pursue this particular angle. The noble Lord, Lord Avebury, is adding somewhat in a rather clever way to arguments which I certainly did not put forward.

Lord Avebury

The noble Lord, Lord Glenarthur, is setting himself up as a home-made "Table Office" to tell us what we can and cannot put into Bills. If this amendment has been accepted it is a legitimate one, and the noble Lord, Lord McColl, has seized this opportunity which is now available to your Lordships to save very many thousands of lives. That is a perfectly reasonable thing for him to do. I should like to quote from a letter I received from the President of the British Cardiac Society in which he said: The House of Lords now has a golden opportunity to make a sensible decision to improve the health of the nation. He goes on to say that coronary heart disease is Britain's biggest killer and over 20 per cent of such deaths are attributable to smoking. There is no argument about that: the medical evidence is conclusive. It is no good the noble Lord shaking his head. He cannot set himself up as superior to the many tens of thousands of professionals who have been telling us these things for many years and whose advice is accepted even by the Ministry of Health. The right honourable Virginia Bottomley does not quarrel with the statistics of the harm that has been caused by smoking. All she is saying is that we have to approach the reduction of smoking by means other than a ban on advertising. Therefore, let all those other means be pursued but let us add the ban on advertising. Let us take the opportunity this evening, suggested by the British Cardiac Society, of saving many tens of thousands of lives.

Baroness Young

Listening to the noble Lord, Lord Avebury, one is only too conscious that having a debate about smoking generates more heat than light. I very much regret that on this occasion I cannot support my noble friend Lord McColl in his amendment. I have admired very much his stand on almost every issue and I am certainly not going to quarrel about the statistics on smoking. The discovery of the link between smoking and cancer came some years ago from a Professor of Physiology at Oxford and I think the evidence is quite clear.

However, in this particular matter I must support the argument that has been put very well by my noble friend Lord Glenarthur. The analogy of the noble Lord, Lord Avebury, about the man walking by the canal is irrelevant. If one were to argue like that one would argue that any piece of legislation considered by your Lordships could be added to because somebody had some idea that we should legislate on a particular issue. We are, after all, a responsible House of Parliament and whether or not one agrees with the principles of this criminal justice Bill it was put forward to meet a very real public concern about law and order in both town and country. Therefore, various provisions within the Bill are put there to deal with that.

Now we have tacked on to the Bill what is a Private Member's Bill in toto. It is brought into this Bill because it has been argued that it is just the opportunity. I am sorry to have to say to my noble friend that this is an abuse of parliamentary time—

Lord Stoddart of Swindon

Absolutely right!

Baroness Young

Thank you very much. Although, as my noble friend Lord Carr said, no one will argue about the dangers of smoking, this Bill is the wrong place to introduce the legislation.

Like the noble Baroness, Lady Seear, when I was young everyone smoked and tried to persuade me to smoke. I tried it and thanks to good fortune I never liked it and never smoked. But almost everyone else certainly did. I have also had cancer so I am well qualified all round to talk on this subject.

The fact is that smoking is not illegal. To legislate to prevent someone from advertising something that is legal—whether one likes it or not—is to run down a very dangerous path. The doctors are always telling us that we should not drink and one might just as well say that for the same reason we should ban the advertising of drink. Members of the Committee might shake their heads but we have only to open a newspaper to read doctors stating that we should not eat butter and so forth. And frequently they change their opinions. I agree that they have not changed their opinions on smoking, but in a democracy it is a very dangerous path to go down. On those grounds too one should be most careful about this piece of legislation.

Lord Mackie of Benshie

Will the noble Baroness say what harm will be done if this amendment is passed?

Baroness Young

The harm is that we shall have tacked into a Bill a provision which does not belong there at all, and that would set a bad example for other pieces of legislation. Secondly, I believe that, as a matter of principle, in a free society if something is not illegal one should be able to advertise it. We have a voluntary code. If the noble Lord agrees that anything he believes to be bad for our health should not be advertised when it is not illegal to take, that would be treading on a dangerous path—a rather illiberal one, if I may say so.

Lord Avebury

The noble Baroness continues to say, as did the noble Lord, Lord Glenarthur, that these amendments do not belong in this Bill. But did they not get past the clerks and is it not for them to decide whether amendments fall within the Long Title? If they have so decided, it is of course legitimate for the Committee to pass these amendments and incorporate them in the Bill.

Baroness Young

The procedures of this House are so designed that we can have a great deal of freedom in debate—far more than we would ever have in another place—and therefore we can have a debate such as this today. However, that does not mean to say that I believe it right or particularly helpful. I very much hope that my noble friend Lord McColl will not press his amendment but will withdraw it. He has made his point and we should now leave the matter. He should introduce a Private Member's Bill and ban smoking, if that is what he really believes. I think that that is what those who support the amendment actually believe in but they do not quite have the courage to say so. If that is what my noble friend wants to do he should get on with it.

Baroness Seear

Does the noble Baroness really stand by her statement that anything which is not illegal should be allowed to be advertised? I think I am right in saying that prostitution is not illegal. Would she like to have that advertised?

Baroness Young

I hesitate to enter into a debate on prostitution at this time of night because I am not at all sure what the position is. I am saying that in the case of tobacco, smoking is legal and this measure relates to the banning of something which is legal. If I did not express myself well I apologise to the Committee but that was the point that I was trying to make.

Lord Rea

Members of the Committee may wish to know about the history of the amendment. Perhaps I may recount a conversation that I had with the noble Lord, Lord Weatherill, with all his experience of the other place. He was commiserating with me with regard to the fate of the Private Member's Bill which this amendment incorporates and also the Civil Rights Bill. He said that he did not believe that Private Member's Bills were the right vehicles to use. He said that it would be better to tack the provision onto a piece of legislation passing through Parliament. He instanced the compul-sory seat belt legislation which, in its first year, saved 370 lives and 24,000 casualties. It has continued to provide a major benefit to the health of this country.

This Bill will save far more lives than that. A careful calculation has put the figure between 95,000 and 140,000 over a period.

Lord Dixon-Smith

I had not expected to intervene in the debate this evening, but we have reached an hour at which even my normally politically incorrect thoughts are at the point at which they are about to burst.

I listened with great care to the arguments advanced by my noble friends Lord McColl and Lord Rea. Indeed, they are most persuasive. I do not believe that anybody in this Chamber would quarrel about the known damage which smoking can cause. But we need to remember that the offence is smoking. It is not advertising but smoking. Therefore, I am afraid that those who have promoted the amendment are at best guilty of intellectual inconsistency; and at worst, they are guilty of something else. I should declare my interest in the matter. It is confined to one box of good cigars smoked over about a 12 month period. I hope that the Committee will reject the amendment.

Baroness Masham of Ilton

I support the amend-ments in the strongest possible way. I hope that your Lordships will not mind if I speak from a personal point of view this evening.

Smoking has always been distasteful to me. As a child, I found that a great many people smoked during the war. My eyes would hurt and I would say how terrible it was. Nobody took any notice. So many children must feel the same today. When I was 18 years-old, I watched my father die of coronary thrombosis. He had been a heavy smoker with a cough. My father died aged 51. There was nothing that we could do.

As your Lordships will know, my noble kinsman, my husband, has smoked cigars for many years. When he developed a cough, I was able to get him off cigarettes. But he has now suffered a stroke and no doubt tobacco has been a contributory factor. A great friend of ours, a past Member of your Lordships' House, had cancer. When our friend left hospital, the first thing that he did was to ring my husband to implore him to give up smoking. He maintained that the tobacco juice from his pipe had run down his throat, contributing to cancer, which has now killed him.

The group which seems to be the most worrying comprises teenage girls and young women. They seem to smoke more than any other group. How can we continue to allow advertising when we know what tobacco does to human beings? Advertising is conducted in a very subtle way. I have no doubt that the argument will be that it is advertising the brand which counts. Whatever it does, it encourages a very dangerous habit which seems to be as addictive as any other dangerous drug. Surely we should do all that we can to discourage, and not promote, such a pastime.

Baroness Trumpington

I am well aware that this is the Committee stage of the Bill. I am well aware also that noble Lords can speak as often as they like and for as long as they like. I just wonder whether your Lordships might like to hear the Minister at this stage. However, I am entirely in your Lordships' hands.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

The amendments proposed seek to make it a criminal offence to publish any sort of tobacco advertising except at the point of sale. I know that the noble Lords who tabled the amendment are motivated by the desire to reduce smoking and the diseases associated with it. Perhaps I may say at the outset that the Government agree wholeheartedly with those objectives and that we are working fully towards them. It is also worth stating that the Government accept that tobacco advertising is one of the many factors which need to be considered in any strategy to reduce smoking—The Health of the Nation White Paper states that quite clearly.

The issue before the Committee is whether the amendments can be justified in terms of their impact on smoking; the restrictions that they would place on a legal product—a point very well put by my noble friend Lord Glenarthur; and the appropriateness of the amendments enacted on the face of the Bill. Those issues were explored very fully and skilfully by my noble friend Lady Young.

We should begin by recognising that Britain has a good record for reducing smoking—the second best in Europe. Only the Netherlands beat us, and of course they too favour a tough but voluntary approach towards controlling advertising. Twenty years ago, 45 per cent. of the UK population smoked; today it is down to 28 per cent. Although that is a good record, it is one which can be improved, as my noble friend Lord McColl said. In The Health of the Nation White Paper, we set out very ambitious targets for reducing smoking—reducing the number of smokers in the population to no more than a fifth by the end of the century.

This Government have always believed that we need to work on a broad front to meet and beat the targets that we have set ourselves. In February, we published our action plan, Smoke Free for Health which set out the essential elements of the Government's approach. They include: action on price; action on parental influence; action on effective health education; action to advise smokers who want to give up; and, lastly, action to control advertising and sponsorship.

We have heard a lot of evidence about the alleged impact that an advertising ban would have on cigarette consumption. I am bound to say that, for us in Britain, none of it is as convincing as the evidence about price and parental influence. Here the facts are clear.

On price, the research evidence shows that a 10 per cent. increase in the cost of tobacco products leads to a cut in smoking of between 3 per cent. and 6 per cent. The Government have an excellent record in that field. Last year alone, the two Budgets led to a 21p increase in a packet of cigarettes. Moreover, the Chancellor of the Exchequer gave a commitment to increase tobacco duties by at least an average of 3 per cent. in real terms in each subsequent Budget. That is unmatched in Europe.

The evidence also shows that children whose parents smoke are two-and-a-half-times more likely themselves to smoke than children of non-smoking parents. Children are seven times less likely to smoke if they perceive strong disapproval from their parents. I agree with my noble friend Lord McColl, we need to do more with 11 to 15 year-olds. However, we have already met the relevant target among children whose parents do not smoke. As we are discussing advertising, perhaps I should also mention that I think that the worst form of advertisement is for children to see the adults in their daily lives—that is, parents and teachers—lighting up.

The Government are campaigning to make parents more aware of the damaging influence smoking has on their children. That message features heavily in our £12 million health education campaign which will run over the next three years. The national curriculum now requires children between the ages of seven and 16 to be taught about the harmful effects of smoking. That is excellent news; but the message has to be hammered home at home—both by explanation and by example.

Those who promote the banning of tobacco advertising frequently use the impact on children as one of their main —if not their central—argument. However, the existing voluntary agreement is specifically designed so that tobacco advertising is not directed at young people, either in its content or where it is displayed. For example, heroes of the young are not allowed in tobacco advertisements; no tobacco advertisements are allowed in magazines where more than 25 per cent. of the readership are young women aged between 15 and 24.

The Government believe that it is prudent to build on the strengths of the existing agreement, especially so far as concerns young people. So the new agreement includes, among other things, the removal of all poster advertisements from within a 200-metre radius of school gates; controls on the content of advertisements which might appeal to young people; and a total ban on advertisements on computer games.

The noble Baroness, Lady O'Cathain, and the noble Lord, Lord Ennals, raised the impact that advertising has on those who see it. The Government do not deny that there is a link between advertising and smoking. If we did not believe that to be the case, there would be little point in pursuing the voluntary controls which have served us so well with the industry. If we denied the link, then we would have an unregulated approach —advertisements on television; at the cinema; in children's magazines. That manifestly is not the case, nor has it been for many years.

The point at issue is whether the evidence justifies taking the further step as set out in these amendments —a total ban and the criminalisation of advertising. This is not a small step. It is a major and significant move which raises issues well beyond simple health matters.

The noble Lord, Lord Rea, and my noble friend Lord McColl drew the Committee's attention to the Smee Report, but that evidence shows that an advertising ban cannot be justified. Using data from 30 years ago, the Smee Report shows that the reduction in smoking associated with an advertising ban in the UK would be around 7 per cent. Studies using data from 20 years ago estimated that a ban would reduce smoking by around 3 to 5 per cent. However, the most recent studies, using data up to 1987, failed to find a significant effect on consumption of banning advertising. Of course, unlike the early studies, the most recent ones have taken into account the major reduction in smoking in Britain in the past 20 years, and the effect of increasingly strict voluntary controls on advertising. It leads to the conclusion that the payback on a ban is not justified and, what is more, it is not supported by looking at the experience of other countries. My noble friend Lord McColl mentioned the international research which shows that in Norway, Finland, Canada—I think he mentioned Canada—and New Zealand bans on tobacco advertising were followed by falls in smoking. Like my noble friends, supporters of a ban have made much of this fact. They have suggested that it shows that a statutory ban would have a similar effect in the UK. But this is far too simplistic. If we look at the experience in Norway and Finland, the two countries where bans have been in place long enough to make sensible comparisons, we see that there were indeed reductions in smoking after the ban was introduced. But in both cases the reductions achieved in Britain over equivalent periods have been greater. In other words, the UK has a better record in reducing smoking using the broad strategy that we have adopted rather than other countries which have simply introduced an advertising ban.

The noble Baroness, Lady Seear, raised the issue of the costs to the NHS of smoking. They are considerable —£160 million a year—but I agree with her that these costs are as nothing compared with the misery and the suffering of disablement and an early death—a point so well put and poignantly put by the noble Baroness, Lady Masham. And that is why we are committed to reducing consumption by 40 per cent. by the year 2000.

My noble friend Lord Carr raised the interesting argument of the benefits that advertising can have on the purity of branded products. That is an interesting view and one which could well have validity, but I must say that at the moment I do not have the evidence on it. It was a point also pursued by the noble Lord, Lord Avebury, who also urged greater information to consumers of the harmful constituents of cigarettes. Already we require tar and nicotine yields to be shown on cigarette packets. They are also required on advertisements. Furthermore, the Government have been working actively with the tobacco industry over the past 20 years to reduce the tar yield. It has been a highly successful policy. The average tar yield has come down from 21 grammes in 1972 to 13 in 1990. The new legal limit will be 12 grammes from the end of 1997.

I believe that Members on all sides of the Committee want to reduce ill health caused by smoking. But it is clear that what we need is a broad approach, which considers the whole range of influences on smoking. That is the approach that the Government have sought to adopt, and one which has been shown to work. It requires an effort from the whole community—parents, teachers, health professionals, retailers, managers of public places and so on. There is no quick fix to this challenge. But with our combined efforts we can drive smoking rates down and meet our targets.

The amendments before us look only at one aspect of this whole problem and invest it with an importance which is out of all proportion to its possible impact. The amendments represent a narrow approach carried too far. I put it to the Committee that the case for the measures set out in the amendments has simply not been made. I urge the Committee not to support them.

Lord Stoddart of Swindon

There has not yet been a speaker from this side of the Chamber against the amendments, and I think that I should put that matter right.

I very much regret that the amendments have been put down. It is intolerable that we should be discussing such an important issue on the basis of an amendment to a very large Bill at ten minutes before midnight. We should have had a Second Reading, a Committee stage, a Report stage and a Third Reading. We should have had a proper Bill, and not an attempt to hijack a criminal justice Bill in this way.

Having said that, I shall try to deal with some of the issues that have been raised. The noble Lord, Lord McColl, is very concerned about children who smoke. So are we all. However, research shows that advertising has very little to do with encouraging children to start smoking. Peer pressure? Certainly. Parental example? Certainly. But advertising? Certainly not. There is no evidence to show that that is the cause.

The noble Baroness, Lady Cumberlege, dealt with the Smee Report, so I do not need to mention that. However, I shall mention that in Russia they have always had an advertising ban, and they smoke a damn sight more in Russia than we smoke here. That is a point that the Committee may wish to take into consideration.

I received a letter from my noble friend Lord Rea. He is a great chap, except on matters relating to smoking. He tried to persuade me of a great many things. He said that banning tobacco advertising is not the thin end of any wedge. I can assure him that it is the thin end of many a wedge.

I am very concerned about alcohol abuse. I believe that alcohol abuse is the greatest social; evil in this country. It is certainly far worse than smoking. When people drink alcohol in excess they do not simply injure themselves, they injure others, sometimes very badly. People who smoke do not fight outside public houses and knife people to death. They do not go home and beat up their wives and children because they have had a cigarette. But people who drink to excess do exactly that. So when we talk of smokers and advertising bans we should think of drinkers too. Smokers do not go out and kill people on the roads, but people who drink and drive kill many people on the roads.

Lord Mackie of Benshie

Has the noble Lord not heard of the saying "Two wrongs do not make a right"?

Lord Stoddart of Swindon

I was dealing with the thin-end-of-the-wedge argument. I was pointing out that if this proposal sets a precedent for banning substances which people believe are harmful, then the very next one could be alcohol.

Lord Mackie of Benshie

Is that not what the noble Lord wants?

Lord Stoddart of Swindon

I am dealing with a letter I have received and trying to point out that the amendment could be the thin end of a very dangerous wedge. I am sure that that will be so. I now refer to air pollution.

Lord Ewing of Kirkford

Before my noble friend leaves the subject of alcohol, is he aware that for many years, because of the high alcohol content of spirits, the advertising of spirits on television has been banned?

Lord Stoddart of Swindon

Yes, as has the advertising of cigarettes on television. The amendment goes further than that. It seeks a ban on all advertising of cigarettes. I am suggesting that a ban on all alcoholic liquor could follow. I am sure that my noble friend would not be pleased with that.

I was about to speak on air pollution, in particular from diesel vehicles. I understand that the PM10s are carcinogens. Benzine from cars is also a hazard. The National Bus Company, London Transport, and others who operate public transport services ban smoking on their buses while belching out poisonous fumes, especially in cities.

Airlines which also have anti-smoking policies dump thousands of tonnes of pollutants every year, especially near airports. Should we ban the advertising of all those products? We had better think about that aspect.

Some people believe that pollution is a bigger enemy than smoking. I cite that from The Times of 12th January. Who was stating that? It was Dr. John Ayres, an adviser to the Department of Health and consultant physician in Birmingham. So some people believe that there are greater dangers than tobacco smoking.

In his letter my noble friend states that tobacco kills one in four users. That is a good statistic. But I also derive from that that three out of four die from something else. Indeed, the statement is contradicted by the next sentence in the letter which states that smoking kills 300 people a day. However, a total of 1,753 people die every day. As a percentage of 1,753, 300 is only 17.1 per cent. Since 30 per cent. of the population smoke, it would appear from the figures quoted by Professor Julian and my noble friend Lord Rea that those who smoke have a better chance of survival than those who do not. I merely quote from my noble friend's letter and the official statistics.

I put a number of questions to the noble Baroness. I went to see her because I was concerned that smokers were being denied treatment under the National Health Service. I therefore put down a number of questions. One of them asked: What proportion of those people who die each year from so-called smoking related diseases smoke tobacco? The Written Answer was very interesting; I must read it to the Committee. The noble Baroness, Lady Cumberlege, stated: There are a number of diseases where smoking is a risk factor. The proportion of deaths which are attributable to smoking for each disease or group of diseases varies. Epidemiological studies suggest that of the 360,000 people who die from diseases where smoking is a risk factor, approximately 110,000 die prematurely from diseases which can be attributed to their smoking behaviour".—[Official Report, 10/1/94; col. WA7]. One is almost not allowed to die of anything but a smoke-related disease in this country. There are only 640,000 deaths a year. If, again, one does one's arithmetic, one finds that 110,000 expressed as a percentage of 360,000 is 30 per cent. You would expect 30 per cent. of smokers to die since there are 30 per cent. of smokers in the population. Once again, we must examine the figures closely. That is an official Written Answer. It comes from the Government, not from me.

It seems that we have now reached a situation where we are told by the Government that 56 per cent. of all deaths have been from smoking-related diseases. The figure is hard to believe; nevertheless, if the Government say it, I suppose it must be true.

Noble Lords

Oh!

Lord Stoddart of Swindon

I also asked another Question. I am sorry that this is taking so long, but we need the facts. On 19th January I asked the Minister how many of the 50 million working days per year which the Minister for Health had recently stated were lost due to smoking related diseases involved people who smoked tobacco. The noble Baroness, Lady Cumberlege, replied: 'The 50 million working days is an estimate from the Royal College of Physicians' Report Smoking or Health. A copy is available in the Library".—[Official Report, 19/1/94; col. WA 49.] Those were interesting figures, so I checked to find out how many working days per year in total were lost through sickness. Unfortunately, the Government did not have the figures, so I had to go to the CBI. What did I find? The CBI published a report on 3rd June 1994. It had carried out a survey. I found that 171,400,000 days were lost through sickness in 1993. If 50 million days are lost through smoking, that represents 29 per cent. of all working days lost through sickness. Since 30 per cent. of the population smokes, those who smoke are rather better attenders at work than those who do not smoke.

Midnight

Baroness Cumberlege

This is very entertaining; I am thoroughly enjoying it. However, I should like to point out to the noble Lord that the figures he uses are not comparable as the Royal College of Physicians' survey occurred in 1977 and the CBI's in 1994.

Lord Rea

The noble Lord's statistics are drawn out of a hat to suit his argument and have no basis.

Lord Stoddart of Swindon

I merely quoted from the Answer which the Minister gave me. There was nothing about 1977 in that Answer. Therefore, since the Question was asked on 19th January 1994, I expected that the figures given were at that date. In any event, let me go on about the CBI report.

Lord McColl of Dulwich

May I ask the noble Lord what his contribution has to do with the amendment before the Committee?

Lord Stoddart of Swindon

It has everything to do with it. The amendments are based on claims made against tobacco smoking. I am trying to put those claims into perspective. The noble Lord may not like it. Whether or not he likes it—and it does not matter what the time is—many statements have been made, not only tonight but on other occasions, and I shall ensure that what I have to say goes on the record. It is about time it went on the record. It is going there tonight, however much noble Lords may object.

The CBI report, Absence Through Sickness, gives all sorts of causes of absenteeism through sickness. There is no mention of smoking as a serious cause. The report mentions drinking and drugs; stress at work in regard to manual workers; and poor motivation. What it does not mention is smoking. Indeed, the report says that in 1990 £964 million was the cost of sickness due to alcohol abuse.

Members of the Committee may not like what I shall say. The other assertion that is made relates to passive smoking. We are told that 300 people a year die from passive smoking. I put down another question for the noble Baroness on 19th January 1994. I asked: Upon what irrefutable evidence the Minister for Health made his recent assertion … that one non-smoker a day was dying from lung cancer caused by passive smoking".—[Official Report, 19/1/94; col. WA50.] The reply, at col. WA50, was: In their Fourth Report (published in 1988) the Independent Scientific Committee on Smoking and Health estimated"— there was no proof, no evidence— the numbers of lung cancer deaths in non-smokers in the United Kingdom exposed to environmental tobacco smoke over most of their lives as 'several hundred deaths per year'". So we are now working, not on the basis of evidence but on the basis of supposition. It really is remarkable that a government Minister should make a statement of that sort, based not on evidence but on supposition. I could go on and on about the subject—

Lord Beloff

Will the noble Lord give way? Does he not know the difference between a scientific estimate and a supposition? They are two quite different things.

Lord Stoddart of Swindon

Yes, indeed. I shall answer the noble Lord's point. The fact is that in the reports that are mentioned the word "supposition" appears. That is why I used the word. But there is absolutely no evidence that passive smoking causes death or injury to other people.

Lord Rea

Nonsense. That is wrong.

Lord Stoddart of Swindon

My noble friend says it is wrong. But he can produce no irrefutable evidence that 300 people a year die from so-called passive smoking. In any event, 11 people per day die—this is absolutely factual information—in road accidents. Why not demand an advertising ban on road vehicles?

Now let us turn to the cost to the health service, which the noble Baroness, Lady Seear, mentioned. I shall tell the noble Baroness what the latest estimate is. It is £600 million a year. But smokers contribute tobacco taxes amounting to £8.25 billion a year, which represents 22 per cent. of the total cost of the National Health Service. I say in conclusion—

Noble Lords

Hear, hear!

Lord Stoddart of Swindon

Yes, it is useful, and I am very glad to have the support of the Committee. I am sure that Members of the Committee have been interested in what I have had to say and will not object to all that going on the record. The fact is that smokers have been treated abysmally. They have been refused treatment under the National Health Service. They have been made social outcasts on the basis of very thin evidence indeed. If the Committee accepts this and the other amendments tonight, I believe that it will be doing a grave disservice to free speech and individual freedom in this country. I hope therefore that the Committee will reject them out of hand.

Lord McColl of Dulwich

I should like to thank all those who have taken part in the debate. It has been absolutely fascinating and I was riveted by the contribution of the noble Lord, Lord Glenarthur. It brought to mind that famous line of Shakespeare: The lady doth protest too much, methinks". What harm would it do to ban the advertising of smoking? It would not do any harm at all. What good would it do? It would save a great number of lives. That is the key.

I understand that the tobacco companies have a problem. My heart bleeds for them. They have to recruit 300 new smokers a day to take the place of the 300 who die every day. So they have a problem. I have to admit that tobacco is unique among commercially available products in that it kills nearly half of its consumers -provided, of course, that it is is used exactly as intended by its manufacturers.

Lord Monson

Does the noble Lord agree that his amendments go much further than banning the advertising of tobacco and tobacco products in this country? They would also ban the importation of certain newspapers and magazines from overseas in exactly the same way as British publications are banned in countries like Iran and Saudi Arabia.

Lord McColl of Dulwich

I thank the noble Lord for that intervention. I thank all Members of the Committee for their contributions. I am sorry that some speakers did not approve of putting the amendments on the back of the Bill. It was a perfectly reasonable device and it would have ensured that the subject was discussed and voted upon in another place. I believe in democracy. If a vote were to take place in another place, I can assure that Committee that the amendment would be passed.

I shall take very careful note of all that has been said. I thank the Minister very much indeed for her very careful contribution. I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164E to 164F not moved.]

[Amendment No. 164H had been withdrawn from the Marshalled List. ]

[Amendment No. 165 not moved. ]

Clause 142 agreed to.

12.15 a.m.

Lord Mottistone moved Amendment No. 166: After Clause 142, insert the following new clause:

("Unauthorised parking of vehicles on private land in England and Wales

Parking on private land

. The Secretary of State shall make regulations requiring local authorities to issue licences for the use of immobilisation devices on private land and these regulations shall include the criteria by which local authorities shall grant a licence.").

The noble Lord said: This is a different subject and I hope that I shall be able to deal with it quickly. The amendment invites the registration by local authorities of the use of immobilisation devices, otherwise called wheel-clamping.

I am advised on this matter by the Magistrates' Association. It is carried on from the point at which it was raised in the Committee stage of the Bill in another place. On that occasion the Minister, my honourable friend Mr Maclean, expressed sympathy for the amendment but thought that licensing would be too bureaucratic. I shall come back to that point in a minute. He went on to say that there was no easy way of finding a decision at the moment. The amendment was narrowly defeated on a Division in Committee.

One could give examples of the frustrations of people who are wheel-clamped, especially the elderly who might be inconvenienced or indeed fearful, or women who might feel vulnerable when they cannot take away their car. My car was wheel-clamped recently in Waterloo Station because I was inadvisedly doing a reconnaissance to see whether or not there was somewhere to park. A sign said one could park at the back of the station, and I left the car for five minutes while I made an inquiry. When I returned, the car had been clamped. I had no objection to that in principle; they released me fairly quickly and it did not cost much money. But it was extremely irritating and could have been very inconvenient.

I only quote that as an example because I can see why people become frustrated and why in due course that leads to trouble, in some cases in the magistrates' courts. The fact is that if my amendment had been in force, unquestionably British Rail—or whatever it is now called—would have obtained a licence and the whole thing would have been perfectly straightforward.

The other factor is that there are certainly cowboy clampers operating and they need to be controlled in some way. The Home Office told the Magistrates' Association in March that it was still considering the matter. Its aim was to ensure that any measure to prevent or deter irresponsible and heavy-handed wheel-clamping on private land did not prevent landowners from taking sensible measures to control genuine parking problems. That is a wonderful statement to excuse somebody from doing nothing at all, even if it is thought that it is something which should be dealt with.

The Magistrates' Association thinks that the position should be clear and that there should be basic rules for clamping which the public understand and which magistrates can apply and apply fairly. The sort of suggestions they are making for rules are that every company or landowner must register with the local authority and have an operating certificate valid for 12 months, a copy of which is to be sent to the local police; every person who carries out wheel-clamping will have to be named and registered with the local authority and the police; every person involved with clamping should hold a certificate of identification, including a photograph, with the name and telephone number of the company or landowner, and actual clampers should wear a company uniform if they are operating for a company; companies must legally keep a register of any complaints against the company and that register should be available to any court on request.

That is all quite simple. There will not be a great many people wanting to register in a given police area and I do not believe the Government are right when they say that the system would be excessively bureaucratic. Local authorities have to carry out many other activities which are certainly no more complicated and sometimes much simpler. There are many good reasons, therefore, why we should have a solution of this sort. Something must be done. The amendment was suggested by both the AA and the RAC at an earlier time and I hope that the Government will give the matter sympathetic consideration as the Bill finishes its passage through Parliament. We may then be able to include in the Bill something on these lines. I beg to move.

Lord Brabazon of Tara

I support my noble friend in his amendment, to which my name is also attached. I am delighted that the noble and learned Lord the Lord Advocate is to reply to the debate. It was in Scotland, back in June 1992, that the Scottish courts judged that wheel-clamping on private land in Scotland constituted extortion and theft. That was a fairly strong judgment made by the courts in Scotland. Following that, and in reply to a debate on this subject in another place on 16th July 1992, the Minister of State for the Home Department said: I, too, am aware of the considerable concerns on the subject … It struck me that many of the attitudes displayed … are akin to acts of piracy". He went on to say: I give him the assurance that we will look at the matter with all urgency".—[Official Report, Commons, 16/7/92; cols. 1260–62] Eight months later—in other words, in February 1993 —no doubt acting "with all urgency", the best the Government could do was to publish a consultation document listing six options for addressing the problem of wheel clamping. In all, some 184 organisations responded to that consultation exercise.

The RAC—noble Lords may be aware that I am a member of its public policy committee although I have no financial interest in it whatsoever—and the AA recommended the statutory licensing of land where wheel-clamping is to be permitted. At the same time the RAC urged the introduction of a code of conduct for wheel-clampers, proposing that clamping on unlicensed land should be a criminal offence and offenders prosecuted with the full rigour of the law. The motoring organisations noted the Government's request to cost recommendations and advocated a self-financing operation—in other words, that licensing fees should be fully adequate to cover all operational overheads.

Following further representations from the motoring organisations about the deafening silence from the Government following the conclusion of the consulta-tion period in May 1993, the Government replied on 4th March 1994 that, the consultation did not produce a consensus of opinion on the six options canvassed. The Government are still considering what action it might be appropriate to take". That was 21 months after giving an assurance to Parliament that they would look at the matter "with all urgency".

Further evidence of the masterful inactivity was given by my right honourable friend the Minister of State at the Home Office when he said during the Committee stage of this Bill on the proposed amendment to establish a licensing regime for wheel clamping: I am still giving thought to what action it might be appropriate for the Government to take. The issue has proved one of the most difficult with which I have had to deal and I have not found easy solutions".—[Official Report, Commons, Standing Committee B, 8/3/94; col. 1264.] The Government have now taken almost two years to reach the conclusion: A local authority licensing regime is not the right solution and we must consider others". The Minister went on to say: I cannot give… an assurance that I shall find the solution within the next few weeks".—[Col. 1264.] We must now really begin to fear that the Government, having spent some 84 weeks getting nowhere, may continue to consider the matter "with all possible urgency". The Government rejected the licensing option on the grounds of bureaucracy. The motoring organisations believe that the Government exaggerate the bureaucracy involved. Regulation could be operated in a simple way and on the basis of a self-financing operation. It may be noted that during these two years local authorities have been given considerable powers in respect of parking. Now, off the main roads, local authorities are responsible for meters, parking wardens and so on. Why is it so difficult to add this aspect of parking—in other words, wheel-clamping on private land—to that regime? Has not the time now come for the Government to agree to cease considering the matter "with all urgency" and simply agree to regulate?

When the courts in Scotland judged wheel-clamping extortion and theft, in June 1992, the Lord Justice General stated: In my opinion, an activity as sensitive to abuse as wheel-clamping requires careful regulation under the law, and if it is to be continued this should only be done under the authority of Parliament, as it is already in the case of the police". I should like to ask my noble and learned friend the Lord Advocate what now is the position in Scotland. Has there been any wheel-clamping in Scotland since that judgment in 1992, or has it all ceased? If that is the case, why is the law so different in Scotland from what it is in England and Wales now? Surely the time has come when we have to come to a conclusion on this matter.

Clamping by the police on the public highway is a carefully regulated matter. For example, you are not allowed to clamp vehicles belonging to disabled owners which display an orange badge. That is not allowed. That can happen now because there is no regulation for clamping on private land. This amendment simply seeks to introduce a regime for the regulation of clamping. I urge my noble and learned friend to give it all consideration and to tell us when we can expect some conclusions from the Government on this matter.

Baroness Darcy (de Knayth)

Perhaps I may say a very brief word in support of this amendment, following on what the noble Lord, Lord Brabazon of Tara, has said. As a disabled driver who would have enormous problems getting unclamped, I am very grateful for the protection which the orange badge gives against clamping in the street and in public places. I hope that the criteria and the regulations will contain similar provisions. I hasten to say that I endeavour not to park in clampable spots, but we all know that that can happen. Therefore, I warmly support the amendment.

The Lord Advocate (Lord Rodger of Earlsferry)

My noble friend Lord Mottistone has raised this matter which is obviously of concern to everybody who has occasion to drive a car or who finds that cars are parked unlawfully on their land. As has been remarked, the position is different in Scotland as the result of the Black case in 1992. Without going into the matter in detail, it is sufficient to say that as regards the general background of the law relating to extortion or blackmail on the one hand, or theft on the other, the law in England is sufficiently different. The Scottish courts have reached one view. I am happy to say that they have reached it since I had occasion to argue a particular case and they supported the view which I argued. They reached that view but the law in England is different. I would not want to say more on that because, as some Members of the Committee are aware, a case is pending before the courts in England and Wales on the matter.

As to whether there has been any wheel-clamping on private land since the Black decision, I cannot say that there has not, but certainly we have no reason to believe that the decision has not been salutary. It is true to say, as my noble friends have said, that consideration of this matter has taken a long time. That is because it is difficult. The question has been raised as to whether or not it would be desirable to have clarity in the matter. As always with the law, it is desirable to have clarity, but it is also true that this is not an entirely straightforward matter.

On the one hand, it is quite clear that the kind of threats to which in particular women motorists, perhaps late at night, have been subjected, are wholly intolerable. On the other hand, it is equally true that people who park unlawfully on other people's land are doing something which is unlawful and intolerable and for which they have a right to a remedy. So one has to balance the various interests. It is that which has caused the difficulty here.

My noble friends have referred to the consultation document which did indeed give rise to a large number of views. As a result, we have had to consider those views. As my noble friends have said, that has taken a considerable length of time. My noble friend Lord Mottistone gave a particular version of regulations which has been proposed by the Magistrates' Association, but other versions have been put forward by other people, with other solutions. The Government are not convinced that the kind of licensing system which has been proposed by my noble friend would actually bring relief to motorists in the kind of situations which cause the most problems to them, and that it would clear the cowboys off the streets.

Nonetheless, it is true to say that the Government have been considering this matter for some time. It is complex, and although I realise that in the light of the time it has taken it may not be entirely reassuring to my noble friends, I can say that the Government will put forward proposals in the near future on this matter. I cannot go further than that, but in the light of that undertaking I would ask my noble friend to withdraw his new clause.

12.30 a.m.

Lord Harris of Greenwich

But what, I wonder, does "in the near future" mean? After all, we had the Minister of State at the Home Office saying that it was going to be looked at with great urgency many light years ago. Now it is "in the near future". Does that mean before the Summer Recess, before this Bill comes for consideration at Report stage or at Third Reading? Really there is considerable public disquiet about this, as I think the noble and learned Lord recognises. He has added that as a result of this decision in the Scottish courts the problem appears to have been eliminated. Why cannot we have similar progress in England and Wales?

Lord Rodger of Earlsferry

It is true that the question of wheel-clamping has been eliminated. Whether the question of unlawful parking has been regulated in an entirely satisfactory manner is a matter which is perhaps open to question, and certainly it has been questioned by some people. I can say to the noble Lord, Lord Harris, that the matter was raised not exactly light years ago but on the 8th March when the remark to which he referred was made. I cannot say—I would if I could—that it will be within the timescale of this Bill. I cannot go further than to say that it will be brought forward as soon as possible and in the near future.

Lord Mottistone

I am sorry that my noble and learned friend has no more guidance than Mr. Maclean had in the other place when he was debating the matter in March. It struck me as we debated this -I throw this out for my noble and learned friend to consider - that I shall probably put down an amendment on these lines for the Report stage to see whether we can push it further. If the Government want this to come into force, it might be helpful if we had in this Bill a little clause giving the Secretary of State powers to make an order relating to wheel-clamping on private land. It need not say any more than that, but that would give the Government the underwritten power to go ahead and issue an order as soon as they had made up their minds. They might make their minds up at the end of the Summer Recess—who knows? People do work during the Summer Recess and so they would have this waiting for them. I shall leave this now, with a view to putting down an amendment on those lines at Report. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 143 to 145 agreed to.

Earl Ferrers moved Amendment No. 166A:

After Clause 145, insert the following new clause:

"Access to computer material by constables, etc.

Access to computer material by constables and other enforcement officers

. —(1) In section 10 of the Computer Misuse Act 1990 (offence of unauthorised access not to apply to exercise of law enforcement powers), after paragraph (b), there shall be inserted the following words—

• "and nothing designed to indicate a withholding of consent to access to any program or data from persons as enforcement officers shall have effect to make access unauthorised for the purposes of the said section 1(1).
• In this section "enforcement officer" means a constable or other person charged with the duty of investigating offences and withholding consent from a person "as" an enforcement officer of any description includes the operation by the person entitled to control access of rules whereby enforcement officers of that description are, as such, disqualified from membership of a class of persons who are authorised to have access."

(2) In section 17(5) of that Act (when access is unauthorised), after paragraph (b), there shall be inserted the following words— but this subsection is subject to section 10." ").

The noble Earl said: I beg to move Amendment No. 166A and I should like to speak to Amendment No. 179AA at the same time. These amendments make it clear that any notice purporting to prevent a police officer from gaining access to a computer system does not in itself make access unauthorised under the Computer Misuse Act 1990.

It is possible to gain access via the telephone network to stores of electronic information known as "bulletin boards". Telephone numbers are advertised in computer magazines and members of the public with the appropriate equipment can dial into these systems. Many of these bulletin boards are operated by private individuals for perfectly innocent purposes. Some bulletin boards, though, have been used to convey obscene material, including child pornography. The police have drawn our attention to a possible impediment to the investigation of this problem.

Some bulletin boards have built into them a notice purporting to deny access to law enforcement officers. Such notices are deliberately intended to attract the protection of the Computer Misuse Act 1990, which makes it an offence to gain unauthorised access to a computer.

The notice would not of course have any effect where the police had obtained a search warrant and had entered the premises concerned. However, it may apply where police are monitoring these systems or where they are carrying out preliminary investigations remotely; for instance, in a police station. The police would like to be able to gain access to these systems—in the same way members of the public can—without the fear that they may be committing a criminal offence.

This amendment does not give the police special powers to access private computer systems. Members of the public will remain entitled to operate computer systems to which they control access. The amendment simply makes it clear that the computer system's owner cannot invoke the provisions of the Computer Misuse Act in order to deny access to police officers while allowing access to every other member of the public.

Viscount Colville of Culross

I took the Computer Misuse Act 1990 through this House. At the time I had no idea that there would be a misuse of the Act, as referred to by the noble Earl. I am certain that it is correct to put the matter right. I support the amendment.

On Question, amendment agreed to.

Clause 146 agreed to.

Lord Windlesham moved Amendment No. 167:

After Clause 146, insert the following new clause:

("The Parole Board

. —(1) The Board which at the commencement of this section is known as The Parole Board shall be, by that name, a body Corporate and as such shall be constituted in accordance with, and have the functions conferred by, this Act.

(2) Schedule (The Parole Board: Supplementary Provisions) to this Act shall have effect with respect to the Board.").

The noble Lord said: This group of amendments concerns two important matters which relate to the Parole Board, of which I was chairman for six years in the 1980s. I am pleased to see in the Chamber, even at this hour, my predecessor and my immediate successor. In view of the hour, I shall deal with the amendments as briefly as possible.

Two unconnected matters are raised in this series of amendments. The first relates to the proposal to establish the Parole Board as a non-departmental public body. Amendments Nos. 167, 170, 176 and 178 deal with that. The second matter, to which I shall speak separately, relates to a flaw that has emerged in the legislation relating to recalls to custody.

Amendment No. 167 is a paving amendment for the substantial proposal contained in Amendment No. 170. I speak also to Amendments Nos. 176 and 178, which are consequential. In the Criminal Justice Act 1991 Parliament conferred significant new powers on the Parole Board. The two most significant were the responsibility to review and to take final decisions on the release of life sentence prisoners serving discretionary sentences of life imprisonment. The board was also given the duty to decide whether to release on licence prisoners eligible for parole who are serving sentences of four to less than seven years.

Moreover, because the local review committees are being phased out, the Parole Board is taking responsibility for some 5,500 interviews each year— about 100 interviews a week—of prisoners applying for parole. As a result of these and other factors, it will be seen that the Parole Board is becoming less of an advisory body and more of a decision-taking body. At the same time, its work is becoming increasingly diverse.

These amendments would establish the board as an executive non-departmental public body. Noble Lords may feel that that status is appropriate. It would mark the independence of the Parole Board from ministerial action, which has always been a hallmark of the system of parole since its inception.

I should be the first to admit that the drafting of this series of amendments, and in particular the very detailed drafting of Amendment No. 170, which is a new schedule, may not be perfect. I shall understand completely if the Government wish to take away the amendments to consider them before the next stage of the Bill. But an indication of support in principle from the Front Bench would be very welcome. I beg to move.

Earl Ferrers

I am grateful to the noble Lord for drawing attention to the need for these new clauses and the new schedule. The first new clause and the new schedule appear to be intended to give the Parole Board status as a non-departmental public body. The Government accept the need for that.

Before the introduction of the Criminal Justice Act 1991, the Parole Board was a purely advisory body offering recommendations to the Home Secretary on the early release of determinate and life sentence prisoners. As a result of changes introduced by the 1991 Act, it has now become more of an executive body, taking decisions on the early release of certain categories of prisoner.

In view of those changes to the role of the Parole Board, the Government agree that it should now become a non-departmental public body reflecting fully its independence and accountability in decision making. I understand that the board itself welcomes the prospect of becoming a non-departmental public body.

The other new clause suggested by my noble friend is, I believe, an attempt to rectify the current unsatisfactory arrangements concerning the recall to prison of people on parole. We welcome that. Where offenders misbehave while on parole, there is discretion to revoke their licence and to recall them to prison.

Until recently decisions to recall people on parole to prison in out-of-office hours were taken by officials on behalf of the Home Secretary. However, because of the way in which the Criminal Justice Act 1991 was constructed, two systems of recall are now running in parallel: one by the Parole Board; and the other by my right honourable friend. That is obviously not satisfactory. It is clearly desirable that there should be clarity and simplicity over a matter of this nature, and it has therefore been decided, in agreement with the Parole Board, that the decision to recall any people on parole should rest with my right honourable friend the Home Secretary.

We therefore welcome the new clause which my noble friend has tabled to try to achieve that. Unfortunately, the drafting of the amendment is, as he suspected, not perfect. If my noble friend will agree to withdraw the amendments, I shall ensure that the Government will consider the matter and will table suitable amendments to achieve those aims at Report stage.

Lord Harris of Greenwich

As a former chairman of the board, I welcome what the noble Earl said. As the noble Lord, Lord Windlesham, indicated, the Parole Board has changed in character very dramatically. When I was chairman, it was an advisory body. It now has clearly defined executive responsibilities. That being so, it is sensible for its constitution to be reviewed in the way proposed by the noble Lord, Lord Windlesham, which the Government have now accepted. Therefore, I welcome both what has been said and what is to be done in that regard.

The hour is now after 12.40 a.m. When this discussion began, there were 12 Members of the Committee in the Chamber, three of them former chairmen and one the current chairman of the Parole Board. Later this morning, there are before us a whole series of other criminal offences proposed either by Members of the Committee or the Government. In my view, that is no way to conduct public business.

The reason for the problems is the Long Title of the Bill—over 450 words. As a result of that, so far as I can see we can have a debate on any issue in the general area of criminal justice policy. But it is the Government's Bill. As it stands at present, it has over 150 clauses. I do not believe that this is a responsible way in which to consider legislation.

We expect people outside to obey the law of this country when it has been passed and adopted by both Houses of Parliament. That being so, it behoves us to ensure that, when we are considering that legislation, we do so in a responsible fashion. I do not believe that we are doing so when we are sitting here in an almost deserted Chamber discussing major changes to the law of this country.

12.45 a.m.

Viscount Colville of Culross

I see that the noble Lord, Lord Belstead, is about to rise to speak, but perhaps I may just precede him for a moment as I did in another capacity. I presided over the transitional stage when the 1991 Act was being put into effect by the Parole Board. It appears to me that the logic of what is now being suggested by the noble Lord, Lord Windlesham, and accepted by the Government is overwhelming. I am extremely glad to see it being put on the statute book.

Lord Belstead

I have just a brief few words to say. I listened with interest to the noble Lord, Lord Harris, and the noble Viscount, Lord Colville of Culross, who are both in favour of two amendments in the group. I should, first, declare an interest in the matter as I am the present chairman of the Parole Board. Having heard the response of my noble friend the Minister in which, as I understand it, he was good enough to say that he accepts the first two amendments in principle, I feel that we must now prepare ourselves.

However, perhaps I may ask my noble friend just one question. I looked with some care through the schedule to which some of the amendments in the group refer. In that schedule there is provision for pensions for both members and employees of the Parole Board. As my noble friend has already said that he wishes to take the amendments away for consideration there is no need for him to answer me tonight, but perhaps I may put to him the following point. I wonder whether the pension provisions need to be spelt out more fully; for example, to state that no pension scheme to which employees or some of the members may transfer should leave them worse off than they were previously. Of course, that is the kind of subject about which argument has raged during the passage of many Bills that have passed through this Chamber. I simply question whether that part of the schedule to which some of the amendments tabled in the name of my noble friend Lord Windlesham refer perhaps needs some fleshing out.

Having said that, I simply thank my noble friend Lord Ferrers for his reply. However, before I sit down I should like to congratulate my noble friend Lord Windlesham on, if I may say so, getting a first in managing to get a group of amendments accepted which, in fact, is the second group of amendments to which he has not actually spoken. That is a remarkable achievement and shows the strength of his quiet, persuasive powers.

Earl Ferrers

I am all for expediting things where it is possible. With regard to the question raised by my noble friend Lord Belstead regarding pension pro-visions, I must say that they are always very important matters. When there are changes, it is important to ensure that the kind of pensions that people had been anticipating do continue. That is the kind of matter that we shall have to consider. As I explained previously, the amendments are not perfect and I shall certainly bear in mind the remarks made by my noble friend.

I turn now to the points made by the noble Lord, Lord Harris of Greenwich. The noble Lord said that there were only 12 people in the Chamber when the debate started, four of whom were previous members of the Parole Board. If I may say so, I believe that to be a very concentrated membership of people with an interest in the subject. The noble Lord then went on to complain vigorously about conducting the Government's business at this hour of night. All I can tell the noble Lord is that, if it is disagreeable for him, it is also disagreeable for a number of other people, including myself.

However, the noble Lord will realise that we have made arrangements, which were agreed through the usual channels, that the Bill should be continued and finished today. We had a fascinating debate a few hours ago on tobacco which went on for about one-and-a-half hours; and, indeed, we had an equally fascinating debate much earlier for about eight hours which concentrated on sex and all its capacities and varieties.

If Members of the Committee wish to speak upon these matters, no one can stop them, but the result is that it then makes it difficult for other people who speak later. I am sure the noble Lord, Lord Harris of Greenwich, will agree that all governments must have their plans and the way that we deal with these is agreed through the usual channels. It was agreed to proceed in this manner and I think that we should continue in this manner. I only hope that Members of the Committee will be slightly more restrained in their contributions than possibly was the case earlier today because obviously the longer people talk, the longer the proceedings will last. However, I think we are right to continue.

Lord Harris of Greenwich

I have just two comments following that, the first of which is about pensions, which the noble Lord, Lord Belstead, raised. If there is any question of moving towards a resolution of this particular problem before the Report stage, perhaps the noble Earl could write to a number of us indicating the Government's thoughts on the matter. Of course it is, as he rightly recognised, a matter of considerable importance.

As regards the hour at which we are sitting, the problem is not some agreement reached through the usual channels—my own Chief Whip has not in fact assented to this arrangement; let me make that quite clear—but the length of the Long Title of the Bill. Once the Government decide to legislate on such a broad area as they have chosen to do for their own reasons—that is a decision by the Government, not by this House—and to produce a Long Title of such immense complexity, it is inevitable that there will be a prolonged Committee stage, particularly if there are going to be 150 clauses to the Bill. I must make it quite clear that, in my view, this is wholly unreasonable. I wish to say no more tonight but if this goes to the Report stage, when we are discussing similarly important questions in the early hours some of us will complain most vigorously.

Earl Ferrers

I do not think the noble Lord has done too badly this evening by complaining and I do not think it is really fair that the noble Lord, Lord Harris, should complain about the Long Title and say that, because we have been stupid enough to produce a Long Title, we have to take the blame for everything that has been added to it. The noble Lord will realise perfectly well that, for instance, the matter of the age of consent was never part of the Bill when it started. It was added in another place and Members of the Committee today have tried to add more things. The result is that the Bill has become longer and longer. Any business of the Chamber can be conducted only by mutual consent and by mutual restraint. I can only say to the noble Lord that if Members of the Committee speak at considerable length—that is their right—then of course that prolongs the proceedings for other people. I just hope that we will be more expeditious in our work.

Baroness Seear

I agree but I should point out to the noble Earl, Lord Ferrers, that most of the people who spoke at great length have now gone and left it to those who did not speak at great length to carry the can. Is it really absolutely impossible to move some of this onto a Friday? It really is extremely difficult to deal in a Committee of this size with matters of this importance when a great many of us are practically asleep anyway.

Earl Ferrers

The noble Baroness does not look as if she is asleep at all. I think she is very much awake. Of course that is what happens—people come in the earlier part of the day, make their great speeches at quite substantial length and then buzz off. That then makes it very difficult for everyone else. I understand the frustration of the noble Baroness, which I share, but one cannot control the Chamber. I think that if we were to try to move this business to a Friday that would cause as many complications as it would resolve.

Lord Windlesham

In view of the satisfactory nature of the reply given by the Minister on the Front Bench, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Windlesham moved Amendment No. 168:

After Clause 146, insert the following new clause:

( "Amendments of the Criminal Justice Act 1991

.—(1) Subsection (4) of section 50 of the Criminal Justice Act 1991 (which provides for the transfer by Order of certain functions to the Parole Board) is hereby repealed.

(2) Schedule 5 to that Act (The Parole Board) is hereby repealed.").

The noble Lord said: As the noble Lord, Lord Belstead, pointed out, the Minister was good enough to accept this amendment in principle before it had been moved. I am very grateful to him for that. I simply ask him to bear in mind when further consideration is given to the proposal that the purpose of Amendments Nos. 168 and 177 is to amend the procedural arrangements for the recall of prisoners who have been released on licence, particularly in emergencies—which are highly unsatisfactory as the result of an unintended provision in the 1991 Act—and not the substantive decision on whether to confirm or reject the actual decision, which properly belongs to the Parole Board. It is not proposed that that should be altered. I beg to move.

Earl Ferrers

I offer my apologies if I have inconvenienced the Committee. I spoke to that amendment merely because the amendments wen; grouped together and I thought that that would be a convenient way of dealing with it. I apologise if I inconvenienced my noble friend.

Lord Windlesham

There is no need for my noble friend to apologise. I am delighted with the way he has handled the amendments. As a last word in relation to the Parole Board, perhaps I may point out that such is the interest and importance of the subject that the audience in the Chamber has been increasing steadily. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Flather moved Amendment No. 168A:

After Clause 146, insert the following new clause

( "Visual recordings of public events

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

1. (a) providing apparatus for recording visual images of events occurring on any land in their area;
2. (b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;
3. (c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.

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

(3) Before taking such a step under this section, a local authority shall consult the chief constable of the relevant police authority.

(4) In this section "local authority" means a county council or a district council.").

The noble Baroness said: This is a very straightforward amendment. Its purpose is to provide local authorities with specific power to spend money on closed circuit television (CCTV) surveillance schemes. The clause is designed to help prevent crime and anti-social behaviour, and it should also reduce fear of crime. As such it accords entirely with the purpose of the Bill.

There are no public expenditure implications. The amendment does not seek additional financial resources for local authorities. It seeks only to give local authorities throughout England and Wales a clear legal power to install and maintain the provision of CCTV surveillance in the council's area.

These schemes are often the product of partnerships between local authorities, the police and local businesses. However, local authorities are finding that they are restricted in the extent to which they can contribute to CCTV schemes, particularly comprehen-sive town centre schemes which provide protection for property and visitors on the streets of our towns. There are currently no specific legal powers under which local authorities may encourage expenditure on these schemes, which extend wider than protection of the council's property or functions.

A scheme which covers only a council's housing estate would be permitted as incidental to the council's housing management. Similarly, one restricted to its leisure centres or its car parks would be incidental to those functions. However, that does not extend to town centre surveillance. Those cities which have received funding under central government initiatives—for example, Safer Cities or City Challenge—have been able to fund CCTV from that source. Where CCTV is not strictly for the protection of the council's own property the only power under which a local authority can incur expenditure on such schemes is under the general power to help communities under Section 137 of the Local Government Act 1972. Expenditure under that section is strictly cash limited to £1.90 per head of population, such that many authorities, particularly smaller district councils, are quite unable to use that power to fund CCTV schemes.

This clause is not a brand new innovation. It is modelled on a legislative provision in the London Local Authorities (No. 2) Act 1990, which the Government did not oppose during the passage of the Bill. In other words, the London boroughs already have the power that this clause seeks to give to our local authorities elsewhere in England and Wales.

As I have already said, the clause has no financial implications. It enables the council to choose to fund such a scheme within its overall budget considerations and reflecting its own local priorities. I hope that my noble friend will be able to take a generous view of the clause because it is causing some anxiety and the district councils outside London would like to be placed on the same footing as the London boroughs. I beg to move.

Earl Ferrers

My noble friend asks me to take a generous view of the clause; and indeed I can tell her that I shall do that. The Government are sympathetic to the aims of the amendment which my noble friend has put down. I am bound to tell her that we could not accept the amendment at this stage. We could not accept that the new clause is necessarily the right way to remove the uncertainty which appears to exist. However, I can assure my noble friend that we shall consider the amendment. I shall report back to the House as a result of the considerations. I hope that on that basis my noble friend will be good enough to withdraw her amendment in order to allow me to consider the points that she has made.

Baroness Flather

I thank the Minister for his words of hope and expectation. I look forward to the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 147 [Sale of tickets for designated football matches by unauthorised persons]:

Lord Donoughue moved Amendment No. 168B: Page 119, line 27, leave out from second ("a") to end of line 29 and insert ("sporting event for which 6,000 or more tickets are issued for sale").

The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 169ZA to 169ZD.

Clause 147 makes it an offence, for an unauthorised person to sell, or offer.… for sale, a ticket for a designated football match in any public place".

The proposed amendments seek to extend the coverage of that from just football to all sporting events where more than 6,000 tickets are offered for sale.

I begin, first, by praising the Minister and the Government for introducing in Clause 147 the ban on football touting. As a spokesman on sport, I should add that a number of measures have recently been implemented—restricting racial chanting, invading the pitches, and now the ticket touting—which have made football safer and more enjoyable to watch. Together with the excellent reforms on VAT for bloodstock and on Sunday racing, to which we look forward, the Government's record in relation to professional sport is really quite good. Most of the measures have been in response to pressure from the Opposition and Back-Benchers on all sides. I wish not only to congratulate the Government on their concessions, but to promise to keep up the pressure.

The amendments in my name are supported by noble Lords from the Cross Benches, the noble Earl, Lord Carnarvon, and the noble Lord, Lord Weatherill, and noble Lords from the Government Back Benches, the noble Marquess, Lord Zetland, and the noble Lord, Lord Orr-Ewing. They will not themselves delay the Committee tonight. They fully support the amendment but do not wish to speak at this late hour.

We do not seek to criticise the Government's approach in the Bill, but simply to make a logical extension of the legislation to cover all sporting events at which more than 6,000 tickets are sold. That figure is not accidental. We do not wish to burden the police and authorities with regulating smaller events where there is normally no problem. But 6,000 is a number which covers both the No. 1 Court and the Centre Court at Wimbledon. It also clearly involves Twickenham, Cardiff Arms Park, Lord's, top golf, horse race and motor race venues. So it is targeted just to the areas where the problems exist.

I gather from previous discussions that some Ministers believe that ticket touting is a law and order problem only in football, and that elsewhere in sport it is simply a case of the free markets operating. That is deeply mistaken. There is much evidence that ticket touting has been taken over by professional criminals in other sports. It does not mean that all other sports are identical to football; we are not saying that it is an identical problem. This problem takes a different form in different sports. But the common element is the criminal element. The sporting bodies have documented the tactics used by touts to get tickets. Their actions regularly include fraud, theft, deception, forgery and intimidation. Those involved are often organised into Mafia-style gangs; and to obtain tickets they steal in the post, they mug ticket-holders in the street and steal from the hands of children.

I have the support for this view and for these amendments from the relevant governing bodies of the various sports from the All England Lawn Tennis Club, from the Test and County Cricket Board, the MCC, the Rugby Football Association and the Professional Golfers' Association. I have plenty of material available.

If the Minister has doubts about the criminality of touting elsewhere than in football, he should go and look for himself: talk to the police at Wimbledon, go there this week and see the criminals in action. As a reward, he might drop in at the Centre Court as part of his observations.

Sporting bodies such as Wimbledon have been forced into self-policing, including making tickets non-transferable and invalidated if transferred. But this transfers the penalty to the customer, the ordinary tennis-lover, often a tourist, who pays a high price for a ticket which is then worthless. That is deception and fraud, but currently not clearly a pursuable offence. That is surely wrong.

Wimbledon has done what it can through self-policing, but now confesses that this cannot be enough. The club has stated: We now look for further protection. A senior official of the club has stated that there is clear evidence of organised crime moving into this area". We have every indication that the people who are involved in ticket-touting in New York, who had to be driven out by the authorities there, have moved their activities across the Atlantic because there are such large sums of money to be made".

Today a man was before the courts in Wimbledon charged with deception. He was in possession of 100 tickets. But it is much more effective to stop this if there is a clear offence of touting. The officer in charge of policing Wimbledon tennis championships, Chief Inspector Coates, last week publicly called for new laws against touting in all sports, not just football. He said: The ticket touts will operate anywhere where there is money to be made, not just at big football matches. I would like to see the Government take the opportunity to legislate against touting per se".

That is precisely what we are seeking.

Ticket touting is a public order issue, not just in relation to football. There is evidence from the Police Federation that the police are concerned at the growth of criminality, at the extent of public nuisance involved and that under the present law they can do little about it. The answer is not a jumble of self-regulation, growing up in various sports introduced by various governing bodies and backed by private security agents. That is not desirable and not effective.

The answer is to deal with this serious and growing law and order problem and to deal with the criminal elements increasingly involved in it and to do so, I suggest, by these simple amendments. The Government have conceded the principle that ticket touting is a matter for criminal law, by applying it to football. There is in my view no logical or practical distinction between the criminals who tout tickets at Wembley and the gangs —so far legal—who tout at Wimbledon, Twickenham, Lord's or York Races. The amendment makes that logical improvement. I trust that the Minister will accept it in the positive and helpful spirit in which it is moved. I shall listen very closely to his reply. I beg to move.

1.15 a.m.

Viscount Mountgarret

I support the amendment moved by the noble Lord, Lord Donoughue. In my view it does not go quite far enough. The noble Lord has shown how places like the All England Tennis Club, the cricket clubs, rugby football and so forth suffer badly from ticket touts in general and the illegal sale of tickets.

I should like to extend the: thought for one moment to the field of the theatre. As the Members of the Committee know, there are some excellent productions in London, and indeed elsewhere, for which tickets are extremely hard to come by. The sale price of such tickets is whatever is thought to be the right price. But in relation to, for instance, "Phantom of the Opera", for which I understand one cannot get tickets even now for some nine months ahead, it is possible for ticket touts to sell tickets at considerably more than face value.

The net effect is that if people are prepared to pay, say, £100 for a ticket which has a face value of some £25 or £30, then money which should go into the arts, the support of the theatre, the artistes taking part, and so on, will be diminished. Therefore it would be desirable if the principle of these amendments might perhaps be accepted. I ask my noble friend Lord Ferrers whether the question of the theatre and that sort of touting (not at sporting events) might perhaps be looked at.

Lord Williams of Mostyn

The Minister said earlier, in justified self-defence, that we had spent many hours discussing various sexual practices —most of which seemed to be buggery. Not having the same intense interest in buggery as some other Members of the Committee who were then present, I thought that I might productively occupy myself by looking at Clause 147(1). I took an example for myself: if I had a ticket for a football match for which I had paid £20 and was not able to go, and met the noble and learned Lord the Lord Advocate in a public house and said: "My Lord, would you like this ticket for £25?" I believe I would be committing an offence under Clause 147(1). The serious point I make is that Clause 147(1) as presently drafted makes it, an offence for an unauthorised person"— me in my example, because I am not, authorised in writing to sell tickets for the match by the home club or by the organisers"— to sell to the noble and learned Lord the Lord Advocate, or offer or expose for sale, a ticket for a designated football match"— a designated football match of course being a match designated under the Football (Offences) Act 1991. Is this offence really intended to catch that sort of innocent activity? I rather doubt it.

Lord Burnham

Obviously at this hour of the morning I shall be brief. I find it extraordinary that a clause should be sent to us from another place with this very curious and inadequate wording. I have to confess that I have not read Section 1(1) of the Football (Offences) Act, but it seems curious that it would be an offence to offer for sale tickets for an association football match, a rugby football match, an American football match or the wall game, but not, on this the second day of Wimbledon, a ticket for Wimbledon. Therefore I ask my noble friend the Minister to look at this clause again. My noble friend Lord Mountgarret raised the question of theatrical events, but the amendment that we are debating, on which I give the noble Lord, Lord Donoughue, my fullest support, talks about sporting events.

In asking my noble friend the Minister to look again at this matter, will he consider the question of 6,000 seats? I am not certain whether Wembley Arena, Olympia, Earl's Court, whatever the place is called in Sheffield, and the NEC in Birmingham have in fact more than 6,000 seats. I understand that they are on the borderline. However, at all of them events are conducted from which one would hope that ticket touts would be banned. Therefore, in support of the noble Lord, I ask that this clause be looked at in detail in order that it may cover a wider field of sporting events.

Earl Ferrers

I was very excited when the noble Lord, Lord Donoughue, rose to move this amendment, as indeed I always am excited when the noble Lord gets to his feet. He started by praising the Government for what they had done about ticket touting and VAT on horses. He said that the Government had done very well for the sports part of the world. I am deeply grateful for that. He then claimed credit for all that had happened just because the Opposition had prodded the Government to do it. Well, he is entitled to obtain his credits where he can.

Lord Donoughue

Perhaps I may correct the noble Earl. I included Back-Benchers from all other sides. I do not wish to take away from them the great credit.

Earl Ferrers

The noble Lord is always generous. He has been generous again this evening in claiming that not all the credit was due to him—which, of course, it was not. Quite a lot of it is due to the Government. He continued with the intriguing suggestion that perhaps we would like to go to Wimbledon this week to see what would happen. I should be delighted to do so. But noble Lords like to keep the Front Benches here until 1 o'clock in the morning and so we cannot always go to Wimbledon.

I appreciate that for quite a lot of people ticket touting is rather offensive and a disagreeable and unpleasant activity. People do not like it. My noble friend Lord Mountgarret suggested that tickets for "The Phantom of the Opera" are very hard to come by and that the money that goes into the purchase of such tickets does not go to where it should; namely, on the arts.

I do not believe that that is true. I travelled in a taxi the other day and saw on the partition a note that there were two tickets for, I think, "The Phantom of the Opera", for £120 each. I was rather surprised to see it and asked the taxi driver about the tickets. He said that he, his wife and two friends intended to go to "The Phantom of the Opera" (if it was that show) and he had bought four tickets, not realising that his friend had also bought two tickets. So he was going to sell them. He had paid £120 each for them. Therefore he had two extra tickets which he wanted to get rid of. I cannot see anything basically wrong in that. The £120 for those tickets would not have gone to the theatre because the tickets were bought from the theatre at the original price. In that instance the market price was what people were prepared to pay. Therefore, from that point of view I do not feel that touting itself is wrong. If there is a market for a ticket for Wimbledon or a ticket for "The Phantom of the Opera", it is the same kind of market as there may be for a piece of antique furniture and it has to find its own level.

I do not believe that it would be appropriate to apply the criminal law to prohibit people reselling tickets which they had perfectly lawfully obtained. If people want to buy tickets from touts, they should be able to do so. After all, nobody is obliged to pay the price that the tout asks. But that is very different from tackling a public order and public safety problem when ticket touting is made an offence in relation to football. There is very little evidence that the same circumstances apply to other forms of sport or recreation as they do to football. The fact is that Lord Justice Taylor identified two evils over Hillsborough. He said first that the presence of ticket touts outside football grounds can act as a focus for disorder since it encourages those without tickets to travel to the ground hoping to obtain them which can sometimes result in unruly behaviour.

Secondly, he was concerned about the effect of the indiscriminate sale of tickets by touts. Ticket touts are in no way fastidious as to whom they sell their tickets. That can result in supporters of one team finding themselves propelled into the middle of the opposing team's fans with all the potential for mayhem and public disorder which that would have. Action was therefore necessary for reasons of public order and public safety.

That is the reason we introduced this part of the Bill. The conditions that apply to football matches do not apply, for instance, in the circumstances of Wimbledon, a cricket match or indeed Henley. Of course, should public disorder occur during the cricket week at Canterbury or the Henley Regatta, or for that matter the ice dancing championships, then we could take appropriate action. But frankly that is not very likely.

The noble Lord, Lord Williams of Mostyn, was perfectly correct. He said that if he met my noble and learned friend the Lord Advocate in some place and my noble and learned friend offered him a football ticket at above the appropriate price, he would be touting and creating an offence. As one might expect of a lawyer, the noble Lord, Lord Mostyn, is perfectly correct; my noble and learned friend would be indulging in an offence and I dare say that in accepting the ticket the noble Lord, Lord Mostyn, would be also. The fact is that that is touting of a football ticket and the reason one does not want touting of football tickets is because of the mayhem and public disorder which can result from such touting. But that does not apply in cases such as cricket matches, Henley, Wimbledon or anywhere else. That is the reason the Government do not feel moved to go along the road suggested by the noble Lord, Lord Donoughue, because it is not a public order problem.

Viscount Mountgarret

Before my noble friend sits down perhaps he would be kind enough to explain to me —I seem to have very little brain at the moment—the difference between a tout for the sale of tickets at a football match and a person who touts the sale of tickets to the theatre, Ascot and so forth. Are they not all ticket touts?

Earl Ferrers

I can quite understand my noble friend finding that his brain cells are not working too well at this hour of the morning. I tried to explain the difference. Lord Justice Taylor indicated that a problem of public order may arise at a football match. At football matches sometimes the problem of fights and mayhem occur. That does not normally happen at Ascot—at least not while I have been there—or at "The Phantom of the Opera" or the ice dancing championships. That is the difference.

Lord Harris of Greenwich

When the noble Earl refers, for understandable reasons, to the report of Lord Justice Taylor, as he then was, and says that that is what differentiates football from any other sport, the obvious answer is that Lord Justice Taylor was invited to produce a report on Hillsborough; he was not asked to adjudicate on wider issues involving other sports. The implication therefore that Lord Justice Taylor was opposed to widening this area of concern is entirely mistaken.

Earl Ferrers

That is one of the most extraordinary interventions I think I have ever heard. Of course Lord Justice Taylor was not asked to look at the village cricket match; there was no outbreak of violence at the village cricket match. There was terrible violence at Hillsborough and that is why Lord Justice Taylor was asked to look at that specific problem. As a result of looking at it, he made various suggestions. He made suggestions for football in general because that is where the problems arise; they do not arise outside the theatre showing "The Phantom of the Opera".

Lord Harris of Greenwich

One must not get too excited. The fact that it is 1.25 a.m. is probably why the noble Earl is beginning to jump up and down. The point was clear. The noble Earl constantly said, "Lord Justice Taylor says this, that and the other", the implication being that he was making proposals in relation to football and was not making them in relation to other sports. The point is an obvious one: he was only asked to look at the situation involving football.

Lord Williams of Mostyn

Is not the true explanation that what the Minister said was perfectly correct; namely, that he is not objecting to the selling of tickets per se but to the consequences in a particular area? It seems to me—I am sorry to be helpful —that that is a sensible explanation. However—and now the barb—I seriously question, again seeking to be helpful, whether the Government want to make the kind of informal transaction to which I referred earlier a criminal offence. It is very similar to the example of the taxi driver with the two legitimate tickets that he wants to sell on reasonable grounds. If he was doing that in a place to which the public have access—namely, a taxi —and the noble Earl had been sufficiently misguided to yield to temptation and sufficiently in funds to be able to afford to yield, they would both have been committing an offence. I respectfully suggest that the provision does need looking at.

Viscount Mountgarret

I am sorry to intervene yet again, but is my noble friend really suggesting that we have to wait until there is a disturbance or unacceptable rowdyism at the All England Tennis Club, at the Marylebone Cricket Club, and so on, before Lord Justice Taylor or some other Lord Justice is invited to comment on that? We have the opportunity here in the format of these amendments to deal with the matter of touts in general. That is all I am trying to say. I ask my noble friend whether he would be kind enough to look at this rather more seriously as I and many others think it is a very serious matter.

Earl Ferrers

I do not want to keep on, as the noble Lord, Lord Harris, would say, jumping up and down., and I am not getting at all excited about it. I am just getting rather frustrated having to say the same thing time and time again because my noble friend does not seem to understand it. If people want to pay £120 for a ticket, they are entitled to pay £120 for a ticket. If my noble friend wishes to buy a pair of shoes from a shop, he can pay £50. If he wants to have them specially made, he can pay £1,500. The choice is his. If because he buys a ticket that is likely to cause a riot, as a result of which people will be hurt and damaged, we have to take other steps.

In all the instances which have been given—whether it is tickets for "The Phantom of the Opera", Wimbledon or any of these other places—there has been no evidence of public riot, public trouble or public mayhem, and therefore there is no point in introducing controls. In the case of Hillsborough, this matter was looked at. One forgets that when that happened football was going through a very dangerous time. Thank goodness it has become a lot better. One of the reasons for the problem was touting. People came to football matches because they hoped to buy a ticket, at some exorbitant price, and hoped to get in. If the touts were indiscriminate they might feed into one part of the football ground the supporters of the other side, and therefore there could be trouble. That is why it was suggested that touting should not take place.

I quite agree with the noble Lord, Lord Williams of Mostyn, that if one has a ban and one takes an absurd example like, if I may suggest so, the noble Lord did, of course one will produce an absurdity. But the point is that there should be a ban to prevent touting If he buys a ticket from my noble and learned friend the Lord Advocate and that creates an offence, that by itself sounds absurd. But that is because the noble Lord takes an absurd example.

Lord Donoughue

I want the Minister to concentrate on the points which I made and which he has not focused on. He seems preprogrammed to focus on Hillsborough and public mayhem. I believe that the criminal law is not only concerned with public mayhem. We have a good deal of consideration of legislation here which is not wholly public mayhem. It may be between two young individuals.

I was quoting something for which there is evidence —criminal behaviour in relation to ticket touting. That includes deception, fraud, physical intimidation and theft. It is irrelevant whether there are not 500 people doing it. What is relevant is that there is criminal behaviour in relation to touting. In some areas it encourages corruption in the provision of tickets which, if there was not touting, there would not be the temptation to corruptly make tickets available.

The Minister has focused on one narrow area. He has focused on the Taylor Report. I agree wholly with the noble Lord, Lord Harris, that Taylor was not asked to look at anything else. Had he been asked to look at tennis and Wimbledon he might have come up with further shocking revelations and recommendations. The fact that he did not look at it and the fact that he was looking at public mayhem mean that it is fairly marginal to the points which I am raising.

There are serious issues here of concern to the Committee; of concern for public order and the criminal law. The evidence is available. AH the authorities in these sports have asked for something to be done. In my experience these are not wild bodies. I have in mind Wimbledon, the MCC and even the authorities of rugby football. They wish for something to be done because they feel that there is a matter of serious concern which requires the law to intervene. We are proposing a simple way. It is being done for football. We are simply saying that there is no logical distinction at this level between football and the other sports. It is quite simple to apply this proposal to the others.

I found the Minister's reply very unhelpful. He may underestimate the amount of support for these amendments. That would be demonstrated if it were a more reasonable hour. I would like the Minister to examine the points made.

Earl Ferrers

I do not want to prolong the matter much longer, but I must say this. The noble Lord, Lord Donoughue, said that I was pre-programmed on to Hillsborough and public mayhem. I can only say that at this hour I am glad that I have been pre-programmed on to something because otherwise I would be completely speechless.

The fact is that matters such as forgery, theft and fraud are already criminal offences. So too is misleading information about the face value of a ticket, which is an offence under the Consumer Protection Act. Those matters are already offences. My understanding is that Wimbledon has done a great deal over the past few years to organise itself and its tickets so that there is as little touting as possible. I disagree with the noble Lord when he says that there is no logical distinction between football and other sports. I believe that there is, because it is only as regards football that there has been public order trouble. It has not occurred with rugger, cricket, rowing or tennis.

I shall consider all that has been said. I am bound to tell the noble Lord that the only reason why this measure is in the Bill is because of the public order part of it which does not appear in other forms of sport.

Baroness Seear

I do not want to prolong this matter. If it is to be considered any more I am on the side of the Minister on this occasion. Surely, we need a definition of touting. I can see a distinction between selling which arises out of illegal activity through fraud and stealing and so on and what is simply creating a market by having the foresight to buy up tickets and then sell them at a profit. It may not be a very nice habit but I see very great difficulty in banning it when other forms of making a market are perfectly legal.

Can we have a definition of touting, if we are to continue along this line, which distinguishes it from the straightforward process of forming a market and selling tickets at a profit because the middle man, so to speak, has anticipated a rise in price? That is how markets have always operated, is it not?

Earl Ferrers

The noble Baroness is quite right. I do not know whether it would be particularly helpful to get a definition of touting. What happens is a perfectly acceptable transaction.

If the authorities, at Wimbledon, Henley or anywhere else, are prepared to sell tickets at £10 and somebody else then sells those tickets at £100, it is perfectly logical to conclude that possibly they should not be sold at £10 but at £100 if that is what the market takes. That is where one enters the area of what the market will sustain. I do not believe it would be helpful to have a definition of touting: it is not the definition that is important but what actually happens. I come back to the argument I have used previously. Where touting takes place at football matches, that is where you get public order trouble. It does not happen in other places. It may be disagreeable to some if people are walking around saying, "Would you like a ticket for Wimbledon for £200?" However, they would not do it if somebody was not prepared to pay £200.

Lord Donoughue

I am still not at all happy with the Minister's response. I have explained why. I do not think it is simply a market operating. If you were to go to Wimbledon and see the touts operating, or operating as they operate in some other places, it is not just some happy little country market. There is often physical intimidation and the cornering of the market. At this late hour I will not seek to take the opinion of the Committee but I shall come back to the matter again at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 169 to 169ZD not moved.]

Clause 147 agreed to.

Lord Rodger of Earlsferry moved Amendment No. 169ZE: After Clause 147, insert the following new clause:

Touting for hire car services

(" .—(1) Subject to the following provisions, it is an offence, in a public place, to solicit persons to hire vehicles to carry them as passengers.

(2) Subsection (1) above does not imply that the soliciting must refer to any particular vehicle nor is the mere display of a sign on a vehicle that the vehicle is for hire soliciting within that subsection.

(3) No offence is committed under this section where soliciting persons to hire licensed taxis is permitted by a scheme under section 10 of the Transport Act 1985 (schemes for shared taxis) whether or not supplemented by provision made under section 13 of that Act (modifications of the taxi code).

(4) It is a defence for the accused to show that he was soliciting for passengers for public service vehicles on behalf of the holder of a PSV operator's licence for those vehicles whose authority he had at the time of the alleged offence.

(5) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(6) In this section— public place" includes any highway and any other premises or place to which at the material time the public have or are permitted to have access (whether on payment or otherwise); and public service vehicle" and "PSV operator's licence" have the same meaning as in Part II of the Public Passenger Vehicles Act 1981.

(7) In section 24(2) of the Police and Criminal Evidence Act 1984 (arrestable offences), after the paragraph (i) inserted by section 137 of this Act there shall be inserted the following paragraph— (j) an offence under section (Touting for hire car services) (touting for hire car services);".").

The noble Lord said: Amendments Nos. 167ZE and 178ZEA are complementary and, with your Lordships' permission, I shall deal with them together. The purpose of the proposed new clause to be inserted after Clause 147 is to enable the police to take effective action against the people who tout for passengers for vehicles acting as unlicensed taxis. This is a serious problem, particularly in London.

There are two aspects to the problem. The more serious is the tout who preys on strangers and tourists, especially at railway stations and at airports, in particular Heathrow. Such people set out to fleece their victims and if they protest about the charges that are eventually levied, then the passengers are likely to lose their luggage, if nothing worse. The police at the London stations and at Heathrow have struggled to deal with the problem. They have had a degree of success but it has been at a high cost in resources. The aim of the amendment is to focus on this activity and to simplify the procedure of dealing with the offence.

The other aspect is where the touts do not own the cars concerned but offer the services of minicabs or private hire vehicles in the street or where the vehicle drivers themselves offer their car services outside pubs and clubs at closing time. In those circumstances the car is being used as an unlicensed taxi and there is always a risk that the driver may have no valid insurance. If something goes wrong and the passenger is injured he may have no redress against a person who is not insured. That is clearly undesirable and the clause would seek to make it an offence. The complementary amendment, Amendment No. 178ZEA, would mean that the new clause came into force immediately on the passing of the Bill.

Lord Harris of Greenwich

I am in favour of the amendment. Undoubtedly, there is a great deal if dishonesty among a limited number of people who are involved in this trade. As the noble and learned Lord said, the problem is significant, in particular in London and at Heathrow. Such people prey upon visitors, whose knowledge of English is inadequate, and present them with bills of a monstrous size.

I am entirely persuaded of the desirability of the amendment, even though it has the effect of lengthening an already very long Bill.

On Question, amendment agreed to.

Clause 148 agreed to.

[Amendment No. 169A had been withdrawn from the Marshalled List.]

[Amendment No. 170 not moved. ]

Schedule 9 [Minor Amendments]:

Lord Stanley of Alderley moved Amendment No. 170A:

Page 151, line 49, at end insert:

"Forfeiture of dogs.

4B.—(1) In section 4 above (provision as to seizure and forfeiture) there shall be added "any dog used for the purpose of committing or facilitating the commission of the offence" to the list of items which a police constable may seize, and which a court may direct be forfeited.

(2) Where a dog has been used or was present at the commission of an offence, the court, on convicting the offender, may in addition or in substitution for any other punishment, make either or both of the following orders—

1. (a) an order for the destruction or other disposal of the dog;
2. (b) an order disqualifying the offender, for such period as it thinks fit, for having custody of a dog.

(3) Any dog which has been seized and removed by a constable under section 4 may be retained in accordance with regulations made by the Secretary of State under subsection (4) below.

(4) The Secretary of State may make regulations regulating the retention and safe keeping of any dog seized under section 4, and may prescribe charges in respect of the removal, retention, disposal and destruction of dogs.

(5) Any authority shall be entitled to recover from a person from whom a dog has been seized such charges as may be prescribed in respect of the removal, retention, disposal and destruction of the dog by the authority.

(6) Any charges under subsection (5) above shall be recoverable as a simple contract debt.

(7) Any authority having custody of dogs under regulations under subsection (4) above shall be entitled to retain custody until any charges under subsection (5) are paid.

(8) Any person who has custody of a dog in contravention of an order under subsection (2) above is guilty of an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").

The noble Lord said: Sadly, many Members of the Committee will be only too familiar with the problems of poaching and illegal coursing and the violence associated with that. These poachers are not the charismatic characters that history portrays. They are ruthless, cruel and selfish. They damage property during their illegal activities. They inflict cruelty on the deer or the hare because they seldom kill cleanly. They are particularly violent, often threatening and assaulting anyone attempting to control them, including the police. In fact, they disturb the peace.

The amendment would allow dogs, usually of the lurcher type, which have been used for poaching to be seized by the police and, if the court so rules, to be destroyed. That would be a real deterrent because the lurchers used are highly-prized, demanding high prices not least because large sums of money are waged on them. Therefore, large fines are a relatively small deterrent compared with the seizure of the dogs and the possible destruction of the prized lurchers.

Moreover, if the police have to hold the dogs that they seize the owners would be more than prepared to pay for their kennelling in order to try to gain repossession. The amendment to the Game Laws (Amendment) Act 1960 would bring the law into line with the Protection of Badgers Act 1992. Section 13(1) (a) of that Act states that the court may make: an order for the destruction or other disposal of the dog".

I suggest that what is right for the badger is also right for the deer or the hare. The amendment is strongly supported by the NFU, the CLA and the RSPCA. I believe that my noble friend Lord Ferrers, if he were here, would find that the police support the amendment because it provides that they do not have to pay for the kennelling of the seized dog.

I realise that due to the earliness of the hour the Committee will not now wish to discuss the matter in detail. I very much hope that my noble and learned friend Lord Rodger will be prepared to say that he will consider this increasingly serious problem. I beg to move.

Viscount Mountgarret

I support the amendment tabled by my noble friend Lord Stanley. I am sure that not many Members will speak on it tonight. However, I hope that my noble and learned friend realises that there is a strong belief that these provisions should be included in the Bill. Instead of digging in their toes, as I understand the Government have been inclined to do, it would be helpful if they would think more seriously about this matter between now and Report stage.

I do not wish to waste the time of the Committee by citing examples, but it must be obvious that where a fairly unpleasant animal is taken by somebody in order to commit an offence—whether it is a break-in, poaching or whatever—it has a direct effect on those activities. It is wrong that those people should not be penalised if caught. I hope that this amendment will receive a great deal of consideration.

1.45 a.m.

Earl Peel

I too support the amendment. I believe that my noble friend has identified a problem which is increasing at an alarming rate in rural areas. It is occurring not just in the urban conurbations; it is a problem which is reaching way into the countryside. There are far too many cases in which employers and employees, when confronting gangs of those people, are met with increasing levels of violence.

The laws on poaching in the Game Act are complicated and, in many cases, outdated. However, I believe that this amendment gives us the opportunity to put right what I would describe as an obvious error without opening a can of worms. It seems to me quite logical.

I should like to raise another point in connection with game management. That is an extremely precise business. The culling of deer is conducted indiscrimi-nately by those individuals with their dogs. That makes it extremely difficult for the owner of the land to manage his deer in a way which is sustainable both in terms of quantity and quality. That is a very important point which should be taken into account when considering this matter. The same also applies to hares. Although it has been demonstrated clearly that the demise of hares has been caused largely by road accidents and what I may describe as unsympathetic cropping, there are areas in which hare populations are very low indeed and where they should not be killed by any method whatever, whether through poaching or non-poaching.

My noble friend has identified a problem which needs to be dealt with. I am sure that the only effective way in which to prevent the problem is through the control of the dogs. The dogs are the mainstay of the poachers. Although we welcome the increase in fines for poaching provided by the Government, I do not believe that that will be enough. I am quite convinced that my noble friend is right and I urge the Committee to support the amendment.

Lord Kimball

I hope that my noble and learned friend the Lord Advocate will look favourably upon the amendment moved by my noble friend Lord Stanley. This is a particular problem throughout the eastern counties and Lincolnshire where there is a host of disused airfields to which those people drive their vehicles. They stage illegal coursing matches with illegal betting. A large number of police are needed to disperse them. By the time sufficient numbers have arrived to try to disperse them, they have finished their sport, killed their hares, paid their debts and vanished. Those people are extremely violent and intimidating, and it is a growing and serious problem.

Lord Mancroft

I support the amendment. Points have been made which cover the issue very well indeed. This is a serious problem; it is not a marginal problem. It is a growing problem and most important, the solution which my noble friend suggests—the confiscation of the dogs—could nip the problem in the bud.

It would be dreadful were we to miss the present opportunity to deal with the problem. In five or 10 years time it may become a major, serious problem and then we should have to look again at the matter. The present Bill provides us with an opportunity to deal with a problem which will obviously worsen if it is not dealt with. The amendment provides a sensible and easy solution. There is no break in principle and I hope that the Government will look very seriously at this amendment.

The Viscount of Oxfuird

I support my noble friend's amendment from the point of view that there is a genus of the wolf coming into this country. It may be only 0.25 per cent. of the dogs breeding but the genus of the wolf must be controlled, not necessarily from the point of view of its containment but from the point of view of awareness. If that continues, we must be very aware of anything that happens in the future. We need the support of the amendment.

Lord Monkswell

I am sorry to forestall the Minister before his reply, but we have had a most interesting debate with many contributions. However, I wonder whether the amendment actually attacks the symptoms of a problem rather than its causes. During the course of the debate, we heard that poaching is a serious problem; that dogs are involved, and also that it is an increasing problem. But have Members of the Committee opposite considered why poaching is an increasing problem? I suggest that part of the reason is that the people involved in it have no other means of gainful employment.

As in so many spheres of illegal activity, part of the reason for the engagement of people in such activity is due, unfortunately, to the fact that we have mass unemployment and high levels of poverty in this country. It may be useful for noble Lords opposite to consider what could be done about those problems rather than just introduce new laws and penalties to tackle what I see as being the symptoms and not the causes of the problem with which we are beset.

Earl Peel

The noble Lord opposite may well have a point when he states the reasons for people wanting to go into the countryside and carry out such activities. However, with the greatest respect to the noble Lord, I do not think that poverty is really an issue in this question. Some of the prices that are paid for such dogs are very considerable. Moreover, the amount of betting that takes place between poachers is also at a very high level. Therefore, whereas the noble Lord may have a point about the reasons why some people cannot employ themselves in other matters, I can assure him that poverty is not a reason in this case.

Lord Rodger of Earlsferry

I hope that Members of the Committee will forgive me if I do not venture at this late hour into a deep, philosophical debate as to the causes of the matter, but simply address the particular issue raised by my noble friends in the amendment. As has been acknowledged, the position is that paragraphs 1 and 3 of Schedule 9 contain provisions which increase the penalties for poaching and also introduce powers in connection with the forfeiture of vehicles. It must be acknowledged that they are very substantial measures to deal with the kind of behaviour with which noble Lords are concerned.

The question is whether one should go further and introduce a particular provision such as that contained in the amendment. According to my information, I have to say that the police would not actually welcome the power of seizure contained in the amendment. In addition, a power exists at present in terms of the Powers of Criminal Courts Act 1973 to forfeit dogs if they are used for the commission of a crime. Therefore, I believe that Members of the Committee would wish to reflect on whether it is necessary in the circumstances to introduce such an amendment.

The amendment contains other provisions—for example, to disqualify people from the ownership of a dog—which seem to go too far. It is one thing perhaps to disqualify someone from owning a dog if that person has been cruel to a dog; but to disqualify him from owning any dog in these particular circumstances seems, prima facie, to go too far. Nonetheless, I have heard what the Committee has said; and without giving any undertaking at all as to what the outcome of my reflection will be, I shall bear in mind what has been said and will reflect upon it between now and Report.

Lord Stanley of Alderley

First, I wish to thank all Members of the Committee for their support, particularly at this early hour of the morning. As my noble friends Lord Peel,, Lord Mancroft and Lord Kimball have said, the only way to deal with this problem is actually to seize the person who is committing the crime, which in this case is the dog. Very often a gun is being used, in which case it can be seized, but in this case one cannot seize the dog if it has acted incorrectly or outside the law. I am afraid that the noble Lord, Lord Monkswell, did not listen to my opening remarks—I understand how easy that is to do —but he was put right by my noble friend Lord Peel.

As regards my noble friend on the Front Bench, I must say that he did not answer the vital question, which is: if it was right for the Badgers Act in 1992 why was it not right for the game Act in 1960? My information is that the police would welcome this power provided they do not have to pay for it. The amendment deals with that. I shall certainly check (as I am sure my noble and learned friend will) with the police between now and Report. In the meantime, I am glad that my noble: and learned friend said he will look at the measure again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rodger of Earlsferry moved Amendment No. 170AA:

Page 153, leave out lines 19 to 23 and insert: ("(2) In Schedule 2 to the Firearms (Northern Ireland) Order 1981 (punishment of offences under the Order)—

1. (a) in the entry for Article 6(1) (possessing or distributing prohibited weapons or ammunition), in the entry in column 4 specifying the punishment on conviction on indictment, for the words "5 years" there shall be substituted the words "10 years"; and
2. (b) in the entry for Article 6(1 A) (possessing or distributing other prohibited weapons)—
1. (i) in the entry in column 4 specifying the punishment on summary conviction, for the words "3 months" there shall be substituted the words "6 months"; and
2. (ii) in the entry in column 4 specifying the punishment on indictment, for the words "2 years" there shall be substituted the words "10 years".").

The noble and learned Lord said: This amendment will ensure that offences relating to the possession or use of prohibited weapons in Northern Ireland continue to be dealt with on a similar basis to those offences in Great Britain. I beg to move.

Lord Harris of Greenwich

Yes, but we are talking about a remarkable acceleration in terms of the penalties. Under heading (b) of this amendment a sentence of three months becomes six months; two years becomes 10 years. Under heading (a) the punishment for conviction on indictment goes up from five to 10 years. Certainly in the light of recent occurrences in Northern Ireland one is disposed to agree with propositions of this kind.

I apologise for being tediously repetitive, but I draw the attention of the Government Chief Whip, who is present, to the fact that it is now nearly two o'clock in the morning and we are doubling a whole series of criminal penalties. I say this to him in the most restrained tones—there are not 30 people here in the Chamber, I can assure him of that. If my noble friend and I now moved that the House be resumed, the business this evening would be suspended because there would not be a quorum present. He is sitting now entirely as a result of the restraint of those on these Benches who have not been consulted about the way in which the Government have made their business plans. This is wholly unacceptable behaviour for which he must accept a measure of responsibility. I hope he will reflect on this matter between now and the Report stage because if he does not in the future my noble friends and I will move that the House be resumed and he will find himself in a rather disagreeable situation.

We work together normally in this Chamber in a rather satisfactory manner. I hope that will continue but that will only continue if proper consultations take place, and on this occasion I am afraid they have not taken place. But coming back to the point of substance, I would be grateful if the noble and learned Lord the Lord Advocate would just respond to this because I am not in any sense challenging the desirability of this measure but I find the doubling of the penalties a matter which deserves slightly greater attention than it has so far received.

2 a.m.

Lord Rodger of Earlsferry

The purpose is to keep this particular piece of legislation for Northern Ireland in line with the position which will obtain in the rest of Great Britain. This particular matter has not been dealt with appropriately for Northern Ireland, and therefore this amendment is put forward.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 170AB:

Page 154, line 10, at end insert:

"Anonymity of victims of certain offences

. In Section 4 of the Sexual Offences (Amendment) Act 1976 (anonymity of victims in rape etc. cases), after subsection (6) there shall be inserted the following subsection— (6A) For the purposes of this section, where it is alleged or there is an accusation that an offence of incitement to rape or conspiracy to rape has been committed, the woman who is alleged to have been the intended victim of the rape shall be regarded as the alleged victim of the incitement or conspiracy or, in the case of an accusation, as the complainant.".").

The noble and learned Lord said: The purpose of the amendment is to extend the protection which is provided of anonymity for victims of rape to situations where the person concerned is not actually a victim of rape but is the victim either of the crime of incitement to rape or of a conspiracy to rape. In those circumstances, where the crime itself is not rape but incitement or conspiracy to rape, it seems that the existing protection of anonymity afforded in cases of rape should be extended to people in that position. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 170B:

Page 154, line 41, at end insert: ("The amendments made by this paragraph shall cease to have effect on the coming into force of the amendments made by paragraph 22 of Schedule 4 to this Act.").

The noble and learned Lord said: In moving Amendment No. 170B, I should like to speak also to Amendment No. 170C. Both amendments are consequential on the provisions in Clause 40 and Schedule 4 to replace committal proceedings with a transfer for trial procedure. The substantive clause stands part of the Bill. I ask the Committee also to accept these essential amendments. I beg to move.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 170C:

Page 155, line 15, at end insert: ("The amendments made by this paragraph shall cease to have effect on the coming into force of the amendments made by paragraph 23 of Schedule 4 to this Act.").

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 170D:

Page 156, line 30, at end insert:

("Confiscation orders in drug trafficking cases: variation of sentences

. In Section 1A of the Drug Trafficking Offences Act 1986 (inserted by Section 8 of the Criminal Justice Act 1993) (power of court to postpone determinations required before a confiscation order can be made), after subsection (9) there shall be inserted the following subsection— (9A) Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 1(5) (b) (ii) or (iii) of this Act so long as it does so within a period corresponding to that allowed by section 47(2) or (3) of the Supreme Court Act 1981 (time allowed for varying a sentence) but beginning with the end of the specified period.".").

The noble and learned Lord said: In speaking to Amendment No. 170D, I shall speak also to Amendments Nos. 170E and 171G. Again, these are purely technical amendments. They rectify an unintended and unwanted consequence of the postpone-ment provisions in the Criminal Justice Act 1993 and in the Northern Ireland (Emergency Provisions) Act 1991.

Unless the Members of the Committee wish, at this time of night I shall not detain the Committee with too much detail. In brief, the amendments ensure that the courts will be able to impose a fine or to make a forfeiture order in those cases where they decide to postpone the making of a confiscation order. There are various reasons why it may be appropriate to postpone the actual making of a confiscation order. The present terms of the legislation make it impossible for the courts to impose, for example, a fine or an order of forfeiture. The purpose of the amendments is to enable the courts to impose a fine or order of forfeiture in those circumstances. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 170DA:

Page 157, line 5, at end insert:

("Competence of children

. In Section 33A of the Criminal Justice Act 1988 (inserted by Section 52(1) of the Criminal Justice Act 1991), after subsection (2) there shall be inserted the following subsection—"(2A) A child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony." ").

The noble Lord said: I declare an interest. I am a trustee of the NSPCC, which for a number of years has been seriously troubled by the difficulties of the admissibility of children's evidence, particularly when they are complainants in allegations of sexual abuse. I ought to say how grateful we are to the noble Earl the Minister, who has been helpfulness itself in assisting with the drafting of the amendment.

The short purpose of the amendment is virtually self-evident. It is to enable a court to hear a child's evidence where that child can give an intelligible account of relevant events. It is then up to the court to determine what weight to give that evidence in the light of that evidence and all other material before the court. In recent years there have been varying decisions by courts about the admissibility of children's evidence. With the assistance of the Minister, the amendment is designed to give children an appropriate opportunity to give their evidence. I beg to move.

Lord Rodger of Earlsferry

I am pleased to be able to accept the amendment which the noble Lord moved. It replaces an earlier attempt to put the meaning of Section 52 of the Criminal Justice Act 1991 beyond doubt. This version is an improvement and we are happy to accept it.

On Question, amendment agreed to.

Lord Rodger of Earlsferry moved Amendment No. 170E:

Page 157, line 26, at end insert:

("Confiscation orders: variation of sentence

. In Section 72A of the Criminal Justice Act 1988 (inserted by Section 28 of the Criminal Justice Act 1993) (power of court to postpone determinations required before a confiscation order can be made), after subsection (9) there shall be inserted the following subsection— (9A) Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in Section 72(5) (b) or (c) above so long as it does so within a period corresponding to that allowed by Section 47(2) or (3) of the Supreme Court Act 1981 (time allowed for varying a sentence) but beginning with the end of the specified period.".").

On Question, amendment agreed to.

Lord Tordoff moved Amendment No. 170F:

Page 157, line 26, at end insert:

("Infringement of copyright: increase in powers of seizure

( ) After Section 109 of the Copyright, Designs and Patents Act 1988, there is inserted the following section—

"Infringement of copyright: increase in powers of seizure.

109A.—(1) The functions of a local weights and measures authority include the enforcement in their area of section 107 of this Act.

(2) The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of this section as in relation to the enforcement of that Act—

• Section 27 (power to make test purchases),
• Section 28 (power to enter premises and inspect and seize goods and documents),
• Section 29 (obstruction of authorised officers).
• Section 33 (compensation for loss &c. of goods seized under s. 28).

(3) Subsection (1) above does not apply in relation to the enforcement of Section 107 in Northern Ireland, but the functions of the Department of Economic Development include the enforcement of that section in Northern Ireland. For that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.

(4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 107 was contained in that Act and as if the functions of any person in relation to the enforcement of these sections were functions under that Act." ").

The noble Lord said: I endorse what my noble friend Lord Harris of Greenwich said. It is ludicrous that at five past two in the morning we should be debating matters which although perhaps not of great criminal importance are of importance to parts of the industry of this country that I believed the Government were anxious to support.

I have to say that were rny late lamented friend Lord Lloyd of Kilgerran present he would have moved the amendment with a considerable amount of knowledge, which I do not have, and with much greater force. The Copyright, Design and Patents Act 1988 introduced criminal offences where copyright was infringed because the Government recognised how serious the offence was. Copyright infringement is a matter of grave concern to a number of companies and organisations in this country. Unfortunately, that Act gives powers only to the police to act, and it is proper that the police should act.

Until early this year the trading standards officers were able to rely on their powers under the Trade Descriptions Act 1968 to seize counterfeit goods. However, I understand that under a decision in Regina v. Price in the Divisional Court earlier this year the use by a trader of a disclaimer provides a defence under the Trade Descriptions Act. As a result, trading standards officers have been unable to take action under that Act.

That is not such a problem where trade mark goods are involved. They have a specific trade mark and it can be defended. But it is a problem with general packaging and art work which sells a number of goods—it applies to tapes and CDs—where the trade mark is routinely removed by traders. The content of the tape or compact disc is important.

If this important part of our trade in this country, in particular our export trade, is to prosper trading standards officers need to be empowered to search and to seize under Section 28 of the Trade Descriptions Act as they were before the Regina v. Price decision to which I have referred. No additional resources will be required if the amendment is accepted.

At this stage this is largely a probing amendment. However, I hope that the Government are prepared to accept that the principle is correct. If the amendment as drafted is not acceptable to the Government I hope that they will either put forward an amendment themselves or will give us assistance in putting forward a proper amendment at a later stage. I beg to move.

Lord Rodger of Earlsferry

The Government are sympathetic towards the concern underlying the noble Lord's amendment. We are aware of the importance of the battle against such crimes as he mentioned and that in some respects there is an anomaly. Some matters can be dealt with by trading standards officers and others, which are very close in kind, cannot. Therefore, we think this is a matter which is worth examination and we would wish to consider the amendment further. In the light of that, perhaps the noble Lord will withdraw it at this stage.

Lord Tordoff

I am grateful to the noble and learned Lord. Perhaps we may have discussions before we reach the next stage and if the Government would come forward with an amendment, no one would be more delighted than I. In the light of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 171 to 17IB not moved.]

Lord Harris of Greenwich moved Amendment No. 171BA:

Page 159, line 45, leave out paragraph 35.

The noble Lord said: The issue which is raised in this amendment relates to curfew orders. This part of Schedule 9, paragraph 35, relates to a power given to the Secretary of State to introduce the curfew orders when, as the schedule puts it: arrangements for monitoring the offender's whereabouts are available in the area".

That means electronic tagging. We discussed the matter during the passage of what became the Criminal Justice Act 1991. As I indicated on that occasion, I did not approach the issue in a particularly negative spirit, simply on the grounds that those of us who argue that the prison population is far too large should not immediately rule out some alternative proposal which could have the effect of limiting the size of the prison population.

However, the more one looked at the American experience which was argued by the enthusiasts for change, the more sceptical one became. The Florida case was perhaps the most relevant. When one considered the cases there where people had been tagged, it was clear from the outset that they were the kind of people who would not have been remanded in custody in this country. I cite the Florida experience as a simple example, it did not seem to me, when one examined the matter in detail, to provide a strong case for moving in that direction.

As the noble and learned Lord the Lord Advocate will have been told, the last Home Office experiment involved three courts: Tower Bridge, Tyneside and Nottingham. The Home Office hoped at that stage that there would be 150 tags. In fact, there were only one-third that number. Forty-nine individuals were covered and one was tagged twice, making the number 50. In 29 of the cases, the individuals either breached their house arrest condition or they were charged with further offences. In all, there were 217 violations—in other words, more than four for every person who was tagged. There were 159 equipment failures or more than three for every person tagged. That seems to me a pretty high casualty rate. I look forward to the explanation that the noble and learned Lord will give us as to how, given this sad story, it would be appropriate to move further in this direction.

In the light of the experience that I have described the Home Office evaluation report used remarkably restrained language. It stated: Magistrates and judges did not seem to have much confidence in the applicability of electronic monitoring as an alternative to a remand in custody and commented on the difficulties of finding suitable candidates for it. They were willing to countenance a trial with a limited timespan, but if monitoring were to be introduced on any national basis then much greater confidence in the system on the part of both of these groups would be vital".

I am sure that the noble and learned Lord will tell us that the situation has been transformed since that unhappy experience. He will assure us that the manufacturers have dramatically improved the quality of their tagging devices. Well, they would—wouldn't they?—because there are some potentially very lucrative contracts involved.

We can see remarkably little justification for this policy. So far it has involved a substantial waste of public money. It is seen by many to have been little more than an expensive folly. It seems to me that on good value-for-money grounds it should be rejected. I beg to move.

2.15 a.m.

Lord Rodger of Earlsferry

The noble Lord, Lord Harris, said that he had not argued against this matter as a matter of principle when it came before your Lordships previously, but rather as a matter of practicality. Although with his remarkable powers of foresight he has predicted all that I have to say and has therefore perhaps made my remarks redundant, I think that nonetheless I should briefly give the position.

As the noble Lord will realise, the position is that the power to use curfew orders exists in legislation in the 1991 Act as it stands, so this Bill does not introduce that power. He will also of course recall that it was used, as he explained, in the previous experiment in connection with bail. The particular matter in the Act relates it not to bail but to a sentence. There is that difference.

We then come to the part that is all too predictable: that it is the case—however remarkable the noble Lord may find it—that technology has moved on in the intervening years. The position is that over those intervening years the technology has been used in the United States, not just in the jurisdiction to which the noble Lord referred. According to Home Office figures, as many as 200,000 offenders have been tagged over that period in the United States. During that time the technology has been developed. In those circumstances it is anticipated that the technology is now much more satisfactory than, admittedly, it was on the previous occasion when the experiment was conducted.

It is for that reason that it is desired to proceed with testing the technology. It is also for that reason that this particular provision in paragraph 35 of Schedule 9 is contained in the Bill. As the Committee will see, it in fact allows the introduction of curfew orders over different parts of the country to be introduced at various times. That provision is designed in order to allow the use of the technology to be tested in different places.

It is anticipated that there will be three trial areas. One will be Manchester, because there is a high density of population there and rather a lot of high-rise building. That will be one particular aspect of the test. Another area is Reading, where again there is a high density of population, but low-rise building. The third area will be Norfolk, because it is a rural area. In that way it is anticipated that we shall have a representative sample.

So the purpose of this particular paragraph is to allow the matter to be tested in various areas and not to be introduced and used throughout the country at the one time. In the light of those experiments it will be seen whether this measure works—as we hope that it will work—efficiently. In that event, it will provide a sentence which will be useful and allow us to dispose of cases without necessarily using custody, which I am sure that the noble Lord would not wish to do unnecessarily.

Lord Tordoff

I wonder whether the noble and learned Lord could assist the Committee. I am no longer a member of your Lordships' Science and Technology Committee and I suspect that not many members of that committee are in the Chamber tonight. For the record, I wonder whether the noble and learned Lord could assist the Committee by telling us the way in which the technology has improved. This is a learned Chamber in these matters and just to say that it has improved is perhaps not adequate. Could we have a description of the way in which the technology has improved in this matter?

Lord Rodger of Earlsferry

I do not think that I can give the Committee details of that. In America over the years it has been used. As a result, it has been found to be more reliable over that period. Its size has been reduced and in that way it has been found able to be used in a flexible way. For example, it is waterproof and so on and therefore people can wear it to the bath or in the shower and so on. In many ways it is more reliable. It does not need to send out a continuous signal and that kind of thing. In various ways it has been improved over the years. I cannot give the noble Lord the exact details, but if I can find any more detail on the matter I shall write to him.

Lord Harris of Greenwich

I am afraid that that does not persuade us that this is a sensible thing to do. The noble and learned Lord has said that the last experiment or project—call it what one will —took place in relation to bail. That is right. It was an abject failure. So, on the basis of an abject failure we are now to extend the scheme; on the basis of a rather less adequate description (if the noble and learned Lord will forgive me for saying so) of that huge advance in technology, which is supposed to have taken place, we are to extend it.

It seems to me that this is a piece of ideological nonsense. A junior Minister in the Home Office was the enthusiast for it. I certainly did not oppose the principle of an experiment. But the experiment was a failure. On the basis of the failure of the experiment, the Government have now decided to extend the scheme still further. That seems to me to be wholly wrong and I should like to test the opinion of the Committee.

2.23 a.m.

The Chairman of Committees (Lord Ampthill)

The Question is, Whether the said amendment (No. 171BA) shall be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". Clear the Bar.

Division called.

The Chairman of Committees

My Lords, Tellers for the Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Not-Contents have it.

I apologise to the Committee. Apparently I misread the note. I thought tellers for the Not-Contents were appointed and therefore I said the Not-Contents have it. The Not-Contents have it.

2.27 a.m.

Lord Rodger of Earlsferry moved Amendment No. 171BB:

Page 161, line 50, at end insert:

("Discretionary life prisoners

. —(1) In Section 34 of the Criminal Justice Act 1991 (duty to release discretionary life prisoners after they have served the relevant part of their sentence and the Parole Board has. directed their release)—

1. (a) in subsection (6), for the words after "sentence" there shall be substituted the following words—
2. "—

1. (a) account shall be taken of any corresponding relevant period; but
2. (b) no account shall be taken of any time during which the prisoner was unlawfully at large within the meaning of Section 49 of the Prison act 1952 ("the 1952 Act")."; and
3. (b) after that subsection, there shall be inserted the following subsection-

(6A) In subsection (6) (a) above, "corresponding relevant period" means the. period corresponding to the period by which a determinate sentence of imprisonment imposed on the offender would fall to be reduced under Section 67 of the Criminal Justice Act 1967 (reduction of sentences to take account of police detention or remands in custody).".

(2) In paragraph 9(2) of Schedule 12 to that Act (application of early release provisions of the Act to existing life prisoners), after paragraph (b) there shall be inserted the following paragraph, preceded by the word "and"— (c) in Section 34 of this Act, paragraph (a) of subsection (6) and subsection (6A) were omitted.".").

The noble and learned Lord said: Amendment No. 171BB allows remand time to be taken into account when calculating the "relevant part" of a discretionary life sentence. Remand time counts towards determinate sentences and was always taken into account in calculating tariffs in discretionary life sentence cases before the introduction of the new statutory arrange-ments governing these sentences in 1992. These arrangements, however, did not include any provision for that established practice to continue. It is desirable that it should continue and the amendment simply puts right that position. I beg to move.

On Question, amendment agreed to.

[Amendment No. 171BC not moved.]

[Amendments Nos. 17IC to 171E had been withdrawn from the Marshalled List.]

Lord McIntosh of Haringey moved Amendment No. 171F:

Page 162, line 42, leave out paragraph 44.

The noble Lord said: I beg to move.

2.30 a.m.

On Question, Whether the said amendment (No. 171F) shall be agreed to?

Their Lordships divided: Contents, 2; Not-Contents, 14.

Division No.4
CONTENTS
Morris of Castle Morris, L.	Tordoff, L. [Teller]
[Teller]

NOT-CONTENTS
Annaly, L.	Clanwilliam, E.
Brougham and Vaux, L.	Ferrers, E.
Burnham, L.	Goschen, V.

Harlech, L.	St. Davids, V.
Mackay of Clashfern, L. [Lord	Strathmore and Kinghome, E.
Chancellor.]	[Teller.]
Oxfuird, V.	Trumpington, B.
Rodger of Earlsferry, L.	Ullswater, V. [Teller.]

The Chairman of Committees

Before announcing the result of this situation, I should report to the House that as regards Amendment No. 171BA, it was told to me first of all that Tellers for the "Not-Contents" had not been appointed and then that Tellers for the "Contents" had not been appointed. It seems that Tellers for both sides were appointed and therefore the matter has been unsatisfactorily resolved.

I now turn to Amendment No. 171F. It appears that fewer than 30 noble Lords have voted. In accordance with Standing Order No. 55 I declare the Question not decided, and, pursuant to the Standing Order, the House will now resume.

House resumed.