Lords Sitting of 24 March 1994

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

Organophosphate Compounds
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Whether they have established that acute or long-term low level exposure to organophosphate compounds cannot cause chronic ill health.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, the Government rely on independent scientific advice from the Veterinary Products Committee and the Advisory Committee on Pesticides on the safety of organophosphate compounds. Products cannot be marketed unless they are shown to be safe to human health when used in accordance with the recommended instructions.
The Countess of Mar: My Lords, I thank the Minister for that Answer. I understand that a panel of scientists and medical specialists is being set up to study the long-term effects of organophosphates. Will the Minister confirm that under Section 118 of the Medicines Act 1968 the people chosen to serve on the panel have been asked to sign an undertaking not to disclose any information they receive during the process? Will he also indicate whether papers in respect of its committee meetings are to be placed in the public domain?
Earl Howe: My Lords, prospective members of the panel are currently being invited to accept appointment. The letter of appointment makes clear that the panel's papers and its discussions are confidential. The panel, as a sub-committee of the Veterinary Products Committee, is bound by Section 118 of the Medicines Act 1968 and members cannot disclose information on the grounds of commercial sensitivity.
With regard to the noble Countess's second question, the panel will report is findings to the VPC, which will in turn advise Ministers about the findings. The Government will then decide how and in what form to make those findings publicly available.
Lord Gallacher: My Lords, will the Health and Safety Executive be represented on the panel of medical experts which will advise the Veterinary Products Committee about the links between organophosphorous sheep dip exposure and long-term health effects? We welcome the establishment of the panel but we believe that the role of the Health and Safety Executive is such that it should have a representative on the panel.
Earl Howe: My Lords, we have not yet decided who will serve on the panel, although the chairman has been appointed. I take note of the noble Lord's anxieties, and I shall convey them to my right honourable friend.
Lord Stanley of Alderley: My Lords, does my noble friend realise that continual adverse publicity about OP dips has resulted in shepherds not dipping their sheep? That has resulted in sheep scab becoming widespread. Unless immediate steps are taken, that will decimate our flocks and seriously harm our exports.
Earl Howe: My Lords, the Government have sought to introduce an acceptable balance between promoting operator safety and enabling sheep farmers to have access to the licensed products that they need. We recognise that these products are effective. Furthermore, we have consistently stressed that OP products are safe when used properly.
Perhaps I may remind my noble friend that other products are on the market which are not subject to the new certificate of competence legislation; for example, Flumethrin dips can be used to treat sheep scab. Last month a new injectable product was licensed for the treatment of sheep scab. That will be on market in time for the dipping season.
Lord Ashley of Stoke: My Lords, is the Minister aware that the noble Countess, Lady Mar, is right to continue to raise these issues, which cause her and other people anxiety, regardless of whether there is publicity? Does the Minister recognise that the term "commercial confidentiality" is used far too easily and frequently in order to disguise or hide facts which should be in the public domain? Will he assure the House that he will look carefully at every aspect of what is called commercial confidentiality?
Earl Howe: My Lords, I fully recognise the noble Countess's right, as a Member of your Lordships' House, to ask questions of the Government. In so far as I am placed here to answer them, I do my best to do so. I am sure that the noble Lord will appreciate that where prospective proprietary products are placed before the Veterinary Products Committee for evaluation, commercially sensitive elements are involved. While I take note of his anxiety and will follow it up, I am sure he accepts that these matters are serious for the manufacturers involved.
Baroness Masham of Ilton: My Lords, from the point of view of safety, it is necessary to be careful when dipping sheep. However, will not the need to take an expensive examination be a deterrent to small sheep farmers? With the increase in the incidence of sheep scab, would it not be better to provide encouragement to small farmers safely to dip their sheep?
Earl Howe: My Lords, I do not accept that it is expensive to acquire the certificate of competence. En fact, for a day's training the all-in fee represents extremely good value for money. As a result of the Veterinary Products Committee report, which was published last autumn, the Government found that as a

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matter of fact many sheep dippers did not take the necessary precautions. That is why we felt it necessary to introduce the certificate of competence.
Lord Bruce of Donington: My Lords, while I support the insistence of the noble Countess, Lady Mar, on this subject, will the noble Earl give the House an assurance that we are not getting dangerously close to the issue of private interest immunity?
Earl Howe: My Lords, I am sure we are not.
The Earl of Swinton: My Lords, is it not the case that very often a shepherd must take some risk in looking after his sheep? Was there not somebody, who was very great and very good, who once suggested that people might even have to lay down their lives to look after their sheep?
Earl Howe: My Lords, my noble friend always has a very apposite quotation or comparison to bring before your Lordships. I shall take that one away with me.
Earl Russell: My Lords, is there not a difference because is it not fair to say that the shepherd mentioned by the noble Earl, Lord Swinton, did not take his risks in ignorance?
Earl Howe: My Lords, I am grateful to the noble Earl.

Hospital Construction by Charities: VAT
3.15 p.m.
Baroness Robson of Kiddington Baroness Robson of Kiddington asked Her Majesty's Government:
What arrangements they are making for the refunding of VAT on hospital building costs paid by charitable organisations between 1991 and 1994.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley): My Lords, none. There are no plans to refund to charities any VAT that has been paid on the construction of hospital buildings. The Government already provide reimbursement of the VAT paid by hospitals on their capital projects within the overall annual NHS funding. That calculation includes an element of VAT paid on buildings funded by charities.
Baroness Robson of Kiddington: My Lords, I thank the noble Lord for that very unsatisfactory reply. I know that he is aware that since April 1990, health authorities have been awarded £187 million per annum to compensate them for the imposition of VAT on hospital construction. However, they have been charging charitable bodies, such as the leagues of friends, VAT on their voluntary contributions towards the costs of building hospitals. Therefore, they have compensated themselves twice. Are the Government not prepared to do something about that?
Lord Henley: My Lords, I believe that that is a matter for the two parties—the health authorities on one side and the charities on the other. It is a matter for
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discussion and agreement between those two parties at the planning stage. I believe that the noble Baroness will be aware that the Department of Health has recently issued a reminder in the form of guidance to the health service that funding includes VAT on buildings, including those wholly or partly provided by charitable donation. That £187 million added originally and added to the base line since then includes a certain amount to cover VAT paid on charitable works with regard to the building of hospitals.
Lord Eatwell: My Lords, is it not clear that the levy of VAT on charities to fund the construction of hospital buildings is likely to be a major deterrent to charitable giving? Therefore, that will act to the severe detriment of the National Health Service. Given that the Treasury has made those compensatory payments to health authorities, would it not be appropriate to issue an instruction that charities should not be invoiced for VAT so that everything is clear; there is no confusion; and charitable giving is encouraged?
Lord Henley: My Lords, I do not believe that it will discourage charitable giving. We believe that the guidance that we have given to health authorities is sufficient. As I have said, we have made available considerable extra resources to the health service to deal with the VAT which will have to be paid on new buildings. That also includes an amount for any charitable building which takes place. That can be taken into account as and when charities offer to fund any building work in their area. As I said, I believe that it should be a matter for discussion between the relevant health authority and the charities at that stage.
Lord Swinfen: My Lords, my noble friend will be aware that the Government really extremely heavily on charities to implement their care in the community policy. In order to make certain that that policy works properly, does he not consider that charities should be exempt from value added tax?
Lord Henley: My Lords, charities are exempt from value added tax in certain circumstances. However, following a decision of the European Court of Justice in 1989, it was decided that all hospital buildings would be subject to VAT. I am afraid that the Government have no say in that. For that reason, the Government added £187 million to the funding available for capital projects in the National Health Service. That includes an amount to cover buildings provided by charitable organisations.
Lord Murray of Epping Forest: My Lords, will the Government not consider extending to local authorities the same capacity to compensate charities which provide public buildings for the use of local authorities as is provided as regards respite care provided by charitable organisations? If it is done for that category, why can it not be done also for the category that has been referred to?
Lord Henley: My Lords, I am not sure that I heard the noble Lord correctly as regards the kind of building to which he was referring. If he was referring to buildings used for residential purposes—for example, care in the form of sheltered housing—I understand that

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they would not attract VAT. I shall read carefully what the noble Lord said. If I am wrong, I shall write to him. Only hospital buildings are mentioned specifically in the European Court of Justice judgment, and we are bound by that.
Lord Skelmersdale: My Lords, is there any rule that says that charities in that particular situation—for example, the leagues of friends of hospitals—should not be registered for VAT and therefore be able to claim it back?
Lord Henley: My Lords, I shall have to take advice on that and in due course write to my noble friend.
Lord Stoddart of Swindon: My Lords, is it not unfortunate that Parliament's ability to determine who shall be liable to tax is now decided not by Parliament but by the European Court of Justice sitting in a foreign land?
Lord Henley: My Lords, the noble Lord's views are well known in the House. We are members of the Community. We went into the Community many years ago, and we agreed 10 be bound by the decisions of that court. 1 believe that most people would agree with that sentiment.
Baroness Elles: My Lords, is the noble Lord aware that the finding of the European Court of Justice was an interpretation of the sixth VAT directive, which was adopted in 1977 by a Labour Government?
Lord Henley: My Lords, my noble friend is absolutely correct. However, to be fair to the party opposite, I did not notice any particular dissent from its Front Bench. It is only certain elements on the Benches behind.
Baroness Robson of Kiddington: My Lords, will the Minister accept from me that those involved in charitable fund-raising for hospitals are grateful for the memorandum published on 9th February and sent to health authorities explaining the situation as regards VAT? Does he further accept that that memorandum was sent as a result of two years' work by the chairman of Blandford Community Hospital League of Friends? Can the Minister tell the House what happened to the VAT that was paid by charitable authorities up to the time that the memorandum was published?
Lord Henley: My Lords, the noble Baroness is perfectly correct about the memorandum. However, before the memorandum went out, it was entirely a matter for discussion between the two parties—that is, between the health authority and the charitable organisation that wished to make appropriate provision. As I said, Her Majesty's Government made £187 million available in 1990. That money has since formed part of the base line, has been up-rated and includes an element for the VAT paid by charities.
Lord Peston: My Lords, can the Minister further clarify the matter because he has left some of us completely puzzled? I assume that the Treasury is receiving the VAT that it believes it ought to receive. There is no problem in that respect. However, the noble
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Baroness, Lady Robson, is suggesting that the health authorities are claiming from charities something that is called VAT but that it is not going to the Treasury. Therefore, it looks as if something is being done which, to say the least, sounds like sharp practice; but I take it that that cannot be the case. Can the Minister tell us what happens to that VAT?
Lord Henley: My Lords, a charity will offer to build a building for an individual hospital. It will then pay for the building work and, in the way of things, VAT will be levied upon it and will come back to the Treasury. To compensate for that, Her Majesty's Government made the money to which I referred available to the health authorities some years ago so that they could pay part of the bill. As I said, it is for the health authorities and charities to agree such matters beforehand. I hope that the issue is now clearer. The noble Lord still looks slightly puzzled. If he wants, we can discuss it outside the Chamber.

Personal and Commercial Information
3.23 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
Whether they consider that the activities of companies offering to sell commercial and personal information, including confidential commercial intelligence, are legal and in the public interest.
The Minister of State, Home Office (Earl Ferrers): My Lords, a number of statutory provisions have a bearing on the lawfulness of such activities. They include the Data Protection Act, the Theft Act and the Computer Misuse Act. Some personal and commercial information is publicly available. Whether an unlawful act has been committed will depend upon the circumstances of each case.
Baroness Nicol: My Lords, I thank the Minister for that Answer, which of course leaves the situation rather wide open. Is the noble Earl aware that several Members of this House have received an offer of services from ACT Investigations Group offering, among other things, to supply for payment details of personal telephone calls, of mortgage repayments, of bank balances and of arrears on electricity and other bills, in addition to a great deal of commercial intelligence? At the end of the offer form, the group says:
"More sensitive areas of intelligence are available upon request".
That has caused a great deal of distress to some noble Lords. If it is impossible to safeguard such information, is it not time to make either the obtaining of it or the use of it a criminal offence?
Earl Ferrers: My Lords, know that a number of people have received the leaflet to which the noble Baroness refers. I agree with her: I thought that what it was proposing sounded pretty awful. The fact is that any person or business is entitled to carry out such work provided that it is done within the law. I believe that it would be wrong to start banning inquiry agents or any such company because, after all, many of them are

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wholly acceptable and undertake much good work; for example, tracing missing people. What we must do is ensure that the law is correct.
A number of those agencies use different techniques. If such an agency uses a technique which is illegal, it is important that that should be discovered. But, as in all such matters, sufficient evidence would have to be found which would stand up in a court of law.
However, I can tell the noble Baroness that, on the whole, the Data Protection Act is an adequate safeguard. It is possible that there is a small loophole whereby information is obtained by deception. We have to make it clear beyond doubt that a person who obtains unauthorised access by deception to personal data is guilty of an offence. We shall be seeking the necessary legislative provision to make amendments to the law in that particular case.
Lord Wigoder: My Lords—
Noble Lords: Cross Benches!
Noble Lords Noble Lords: This side!
Lord Boyd-Carpenter: My Lords, can my noble friend say whether any legal proceedings have been instituted in respect of such an offence?
Earl Ferrers: My Lords, I am not aware of any such legal proceedings being instigated. Of course, it would be up to any individual who is so offended to take the necessary action against those who perpetrated the offence.
Lord Wigoder: My Lords—
Noble Lords: Cross Benches!
Earl Ferrers: My Lords, I believe that there will probably be time for both speakers. However, perhaps the noble and learned Lord, Lord Brightman, would like to put his question first.
Lord Brightman: My Lords, is the Minister aware that, paying a sum of money which varies between £245 and £1,000, I am able to find out the balance on his banking account; I can get his last statement; I can get the average balance on his banking account over the past six months; I can get confirmation of his overdraft facilities; and I can get a sweep search for other accounts, together with his overseas tax haven, and a copy of his itemised telephone calls? Therefore, is there not a strong case for considering the introduction of some amending legislation to prevent such an appalling intrusion into his private affairs?
Earl Ferrers: My Lords, I am grateful to the noble and learned Lord for having carried out such voracious homework. I can only say that, if he got all of that for about £200, it is cheap at the price. However, perhaps I may tell the noble and learned Lord that I was in fact subject to precisely that process by one Sunday newspaper which was investigating the matter. Those involved thought that it would be quite exciting to find out such information, and, indeed, they did so—although they did not quite ascertain all the details
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outlined by the noble and learned Lord. Moreover, they published the fact that they had done so in their Sunday newspaper. I took action and went to the Data Protection Registrar. I told him that I thought it was unfair. The registrar took such steps as he could. But we were unable to find out how the information had been acquired. If you cannot find out whether an illegal act has been perpetrated, it is impossible to take those concerned to court.
Lord Hailsham of Saint Marylebone: My Lords, is there not something to be said for considering more seriously the adoption into the law of the United Kingdom of Article 8 of the European Convention on Human Rights which provides a civil right of privacy over which the individual can take action?
Earl Ferrers: My Lords, we shall certainly consider any such suggestion. Of course, there is no general right of privacy in England and Wales at present, although the law provides remedies in relation to certain specific activities. Following the recent report of Sir David Calcutt, Her Majesty's Government undertook a consultation exercise to assess whether there should be a new civil tort of infringement of privacy. We are still considering the matter. Nevertheless, I agree with the drift of your Lordships' views; namely, that it is pretty unsavoury that people can gather this kind of information.
Lord Jenkins of Putney: My Lords, having regard to what the noble Earl has just said, is it not the case that this is one of those activities which is not satisfactorily dealt with after the event but needs a licensing process so that those who are exercising a legitimate area of business can be separated from the large number of cowboys? I know that it is against the Government's philosophy to regulate anything, but while they are deregulating in some areas will they not recognise that there are areas which need regulation? Will they not consider this matter?
Earl Ferrers: My Lords, I am entirely happy to consider anything of that nature. A number of inquiry agents operate perfectly respectably and a lot of information is in the public domain. It is acceptable to some people to pay an individual to obtain information which they could obtain on their own account but do not know how to.
Lord McIntosh of Haringey: My Lords, the Minister's answer to the noble and learned Lord, Lord Brightman, was fascinating. My first question has to be: was the information which the Sunday newspaper obtained correct, and, if it was, is there no implied contract between the Minister and his bank which would enable him to sue the bank for allowing such information to be given out?
Earl Ferrers: My Lords, this is all getting a spot personal. I did as the noble Lord, Lord McIntosh, said. I asked the staff at the bank what on earth they thought they were doing in allowing such information to be given out. They said they were equally horrified that such information had been given out because it was not the bank's philosophy to allow that to happen. Quite a

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lot of information can be obtained quite simply by people ringing up and saying, "I am so-and-so. Can you tell me what is in my account?" I believe that the improvements that we intend to make will help in that area.
Lord Wigoder: My Lords, it is of no help to say that the individual may have a right of privacy which he can enforce when the difficulty is that the individual never has the opportunity to discover that his privacy has been invaded.
Earl Ferrers: My Lords, the noble Lord is quite right, but the fact is that anyone who carries out any business, or indeed any private individual, is entitled to take action, proviced he keeps within the law. If he keeps within the law, no offence will have been committed. Where a person has committed an act that is outside the law, that is an offence upon which the courts can take action, but that means that there must be evidence which will stand up in a court of law. I agree that it is difficult to obtain such evidence, but that is also the case in plenty of other criminal cases.

Education and VAT
3.32 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
Whether they have yet reached a decision on the need to continue current VAT exemptions for education and training.
Lord Henley: My Lords, as I made clear on 10th March most education and training will continue to be free of VAT. The current review of this exemption seeks only to aid clarity and consistency and there will be no widescale change in VAT liability. It is hoped the final results of the review will be available shortly.
Baroness Castle of Blackburn: The Answer of 10th March was encouraging but it had gaps. Will the Minister give a categoric assurance that VAT will not be levied on adult students and graduates of overseas universities who are studying on the campuses of universities in this country? Is he not aware that these people, who come here to study us and to find out more about us, do not at present pay VAT and to re-impose it would not only constitute a tax on knowledge but also on closer relationships with other countries such as America?
Lord Henley: My Lords, the noble Baroness makes two points. First, adult local authority classes are not exempt and the proposals do not exempt them. But nearly all are subsidised and are regarded for VAT purposes as non-business and therefore VAT free as opposed to VAT exempt. There is no intention whatever to change that position and I hope that unnecessary confusion has not been caused by some answers given in the past. As regards United Kingdom campuses and foreign students, I accept the points that the noble Baroness makes. I can give an assurance that Customs
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are giving sympathetic consideration to the representations received and those will be taken into account in the final decisions which, as I say, will be announced shortly.
Lord Cledwyn of Penrhos: My Lords, that is a helpful reply. However, is the Minister aware, and will he confirm, that establishments such as Wroxton College, Oxford would be bound to close if VAT standing at 17.5 per cent. was imposed upon them? Does the Minister further agree that colleges like Wroxton are an important bridge between universities in the United States and British universities?
Lord Henley: My Lords, I do not know the exact status of the college to which the noble Lord refers. As I said, if it is one which takes foreign students, I understand that it is a matter which has been given careful consideration. The changes that we are proposing are really matters of detail to aid clarity. We do not intend to make any major changes which will cause problems to particular individuals. However, we believe it is necessary to assist and improve the clarity of the arrangements that exist at the moment.
Lord Eatwell: My Lords, on 10th March the noble Lord, Lord Henley, said that driving schools were likely targets for VAT under the review. Is any distinction to be made between those who are learning to drive as training for employment, such as heavy goods vehicle drivers, and the rest of us? If that distinction is to be made, how will it be done?
Lord Henley: My Lords, the point I was trying to make is that driving schools are already subject to VAT. That will continue in that all commercial training organisations are likely to continue to be subject to VAT if they are arranging their processes for profit. One has to be careful about suggesting that all such bodies should be exempt. There are many such bodies which would far prefer to go on paying VAT for the reliefs it gives them and reduce the costs to their customers who are themselves able to claim VAT back, if the noble Lord's noble friend Lord Peston can understand that.
Earl Russell: My Lords, will the Minister bear in mind that overseas students and scholars make a significant contribution to our balance of payments and such contributions are not so rare that we can afford to neglect them?
Lord Henley: My Lords, I can only repeat that Customs are giving sympathetic consideration to the representations already received.

Education Bill [H.L.]
3.37 p.m.
The Minister of State, Department for Education (Baroness Blatch): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order—
Clauses 1 and 2,
Schedule 1,
Clauses 3 to 22,
Schedule 2,
Clauses 23 to 25.—(Baroness Blatch.)
On Question, Motion agreed to.

British Railways Order Confirmation Bill
Read a third time, and passed.
British Railways (No. 2) Order onfirmation Bill
Read a third time, and passed.
British Railways (No. 3) Order Confirmation Bill
Read a third time, and passed.

Police and Magistrates' Courts Bill [H.L.]
3.39 p.m.
Read a third time.
Clause 4 [Functions of police authorities]:
Lord Gisborough Lord Gisborough moved Amendment No. 1:
Page 3, line 29, at end insert ("and in making arrangements for obtaining the views of people in each police area under this section the police authority shall have regard to the particular circumstances of the area, including its geographical and demographic circumstances, and to any current trends in the incidence of crime in the different parts of the area."").
The noble Lord said: My Lords, I should apologise that this amendment did not appear on Report. Although it was tabled, I had duties elsewhere and was unable to move it. There has been much debate about the setting of objectives for the police, and in particular the wisdom or otherwise of establishing national objectives. This amendment is concerned with the setting of local objectives.
Under Clause 3 of the Bill it is proposed to amend the Police Act 1964 so as to oblige police authorities to determine local policing objectives on an annual basis. In so doing the authority must consider any views obtained by it in accordance with the community consultation procedure for which provision is made in Section 106 of the Police and Criminal Evidence Act 1984.
While that is welcome in principle, the 1984 Act gives no guidance to police authorities on the manner or extent of the arrangements to be made for obtaining local views. It is clearly desirable that the local police plan should take proper account of the views of people living in different parts of the police area, having regard to local conditions. For example, the policing of rural areas should not be afforded a low priority because police officers might perceive it to be easier to attain performance targets by concentrating most of their efforts on urban crime or because the rural community is in a numerical minority.
The amendment would ensure that the police authorities would have regard to the nature of their areas: for example, any problems of physical
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communication caused by local topography or distribution of local population. Authorities would also have to consider trends in the incidence of crime in the areas.
Recent Home Office figures indicate that the number of notifiable offences recorded by the police has increased by as much as 13 per cent. over the past year in some shire areas such as Cambridgeshire, Cheshire, Devon, Cornwall, Humberside and Yorkshire. A disturbing trend is the "away day" crime committed by criminals based in urban areas who drive out into the countryside for easy pickings in less intensively policed areas.
Everybody agrees that police authorities should be responsive and accountable to their local communities. With this amendment I am seeking to ensure that the duty to consult the local people is carried out in an equitable fashion which reflects the nature of the area and takes account of recent developments in criminal activity in the locality. I commend it to your Lordships. I beg to move.
Baroness Hilton of Eggardon: My Lords, this amendment has not been before the House previously, but it appears to be eminently sensible. We therefore support it, for all the reasons put forward by the noble Lord, Lord Gisborough. There has been a considerable increase in rural crime, and clearly any plan should take account of different crime patterns in different parts of the police area.
Lord Renton: My Lords, I agree broadly with what my noble friend Lord Gisborough has submitted. As he referred to Cambridgeshire, and in view of the increase in population there, perhaps I should mention that since the large new county of Cambridgeshire was formed in the early 1970s there has been one police force for the whole of that area, whereas formerly there were four police forces. Although many of us hope that the revision of local government boundaries and the establishment of unitary authorities will lead to Cambridgeshire being divided into perhaps four separate unitary authorities, there is a broad opinion that the police force should remain as it is now. The police authority should therefore include members representative of each of the future local authorities.
I hope that that point is not irrelevant, but I thought that it ought to go on the record.
Lord Campbell of Alloway: My Lords, the amendment would impose a duty which is not readily enforceable in the courts. Although I agree with the sentiments behind it, I question whether it is right to include in a statute a duty which is not readily enforceable.
Earl Ferrers: My Lords, I understand the intention of my noble friend Lord Gisborough. He had the support of my noble friend Lord Renton, who referred to the composition of police authorities. He hoped that it would be acceptable to mention that point in the context of this amendment. Of course it is acceptable for my noble friend to mention anything of that nature, but it was not the subject of the amendment, which is concerned with how the police consult in their localities.

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I agree with many of my noble friend's observations and with what he has set out in the amendment. In carrying out their responsibilities police authorities have to have regard to Section 106 of the Police and Criminal Evidence Act 1984. However, those are not the only considerations which the police authority should have in mind.
The amendment covers much the same ground as Section 106 of the 1984 Act. Perhaps I may weary your Lordships by quoting from that Act, which states:
"Arrangements shall be made in each police area for obtaining the views of people in that area about matters concerning the policing of the area and for obtaining their co-operation with the police in preventing crime in the area".
That wording is very similar to what my noble friend has put in his amendment. Those are the statutory requirements upon police authorities in carrying out their responsibilities. I suggest to your Lordships that it would not be desirable to accept my noble friend's amendment, which would merely duplicate the requirements already set out in the 1984 Act.
While I accept the spirit of my noble friend's amendment and endorse entirely the validity of some of the points which he made in support of it, I believe that it is undesirable to gloss the requirement which I have just quoted. It complicates a simple provision by referring to geography and demography. The considerations to which my noble friend drew attention will already be firmly in the minds of police authorities if they are discharging their responsibilities properly under Section 106.
Lord Gisborough: My Lords, I thank my noble friend for that explanation. Since he considers the amendment to be a duplication and that the case is covered, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 2:
After Clause 6, insert the following new clause:
Other members of police forces
(".—(1) Section 7 of the 1964 Act (Other members of police forces) shall be amended as follows.
(2) In subsection (1)—

(a) leave out "shall be such as may be prescribed by regulations under Part II of this Act and the ranks so prescribed", and

(b) for the words "superintendent, inspector, sergeant and constable" there shall be substituted the words "constable, sergeant, inspector and two other ranks between inspector and assistant chief constable which may be designated by the Secretary of State.".").

The noble Baroness said: My Lords, in moving Amendment No. 2 I shall speak also to Amendment No. 6, which would extend the same rank structure to Scotland as to England and would therefore provide uniformity between the two parts of this United Kingdom.
At both Committee stage and Report stage we addressed the question of how many ranks there should be within the police service to ensure that it is effective and efficient. We now bring before the House an amendment which is a suggested compromise between
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retaining the current number of ranks in the police service, which is nine, and the Home Secretary's intention to reduce it to six.
Last week the noble and gallant Lord, Lord Bramall —and I regret that he is unable to be with us today—said (at col. 172 of Hansard for 15th March):
"I am amazed and indeed dismayed that the Government should have incorporated into this Bill a tinkering-about with the very limited number of ranks of the police".
He went on to say that in each of the armed services there are about 18 ranks, three times the number proposed for the police service.
Among the three ranks which the Home Secretary proposes to eliminate is that of deputy chief constable. That is not addressed by this amendment. Although in my view it is important that that should remain a designated post so that there is continuity arid clarity of command at that level, it is not essential that it should remain a separate rank.
The other two ranks which are threatened are those of chief superintendent and chief inspector. The amendment would provide that one of those ranks would be retained at the discretion of the Secretary of State, so that the ranks would in effect be reduced from nine to seven rather than to six as is proposed by the Secretary of State.
I have a clear preference for the rank of chief inspector, as I have made clear in previous debates. The rank of chief superintendent is largely managerial and; although in my view is a useful rank, it is not an essential layer in the chain of command.
I have always been an enthusiast for delegating authority to the lowest possible level and for reducing bureaucracy wherever one can in the police service. However, the rank of chief inspector, as I have argued at earlier stages of the Bill, is essential to the effective organisation of the police service, in particular on any large-scale occasion.
In the police station, and for day-to-day coverage of a police area, policing is provided by constables, sergeants and inspectors working in teams. In theory, discipline, welfare, career development and allocation of resources could also be devolved to that level. But even in day-to-day management of the police station, the chief inspector is an essential link between the various operational units of the station which provide a 24-hour service. It is easy for items to fall into the gaps between one reliefs performance of an eight-hour tour and the following tour of duty unless there is a chief inspector who is aware of matters such as those to which the noble Lord, Lord Gisborough, referred: the patterns of crime; which particular pubs are causing trouble; and the general overall need for deploying different levels of resources within the divisional area.
Without someone in that vital position, which is a link between the operational and strategic roles in the police station, teams of police officers on divisions will tend to develop their own objectives and, more dangerously, will often develop their own styles, in their own culture of policing, under their own inspectors arid sergeants. The chief inspector ensures uniformity as well as strategic control.
Although I believe that police divisions could struggle on without chief inspectors, there are many policing situations which would not work without that vital rank. They are largely those in the public arena. The consequences of the Secretary of State's proposals will be obvious to us all. There would be loss of control and confusion. There would probably be a quite spectacular collapse of command and control on large public order occasions.
I have spoken previously in the House about the problems of policing football matches without chief inspectors, of running state visits, controlling the policing deployment in Victoria Street and managing large-scale occasions such as the Nothing Hill Carnival where one may have many hundreds or thousands of police officers on the streets of London. Without the vital links in the command structure, I am sure that those events would not work well.
Today I put before your Lordships a different scenario: that of the sudden disaster. Perhaps we may turn our minds back to an occasion such as the bomb in Harrods with the initial chaos and confusion. About 100 or so constables, sergeants and inspectors who happened to be on duty in the locality arrived, each of them in their own team and from their own station. Essentially one needs chief inspectors to co-ordinate the efforts of those officers. They need to be present to cut off streets, set up cordons and ensure the free passage of emergency vehicles. All those issues will require more than the half dozen or so officers who may arrive from each station. The noble Earl referred to the gold, silver and bronze system of command. That works when one has a public order situation planned in advance and one can designate which ranks will occupy the gold, silver and bronze. But it cannot apply in a sudden emergency.
I also direct noble Lords' attention to the King's Cross station tragedy four years ago. It occurred in my area in north-west London. It was the chief inspectors who managed to restore some order out of the initial chaos. It was a chief inspector who undertook the excellent briefing of the media. He appeared on television to tell us what was happening; and he had an overall vision of the situation at an early stage.
Another sudden disaster—it is my own particular nightmare —might be a crash involving a plane on its way to Heathrow. One can imagine the chaos and disaster that such a crash could cause in a crowded residential area of London. In the first half hour, or even hour, there would be ill-coordinated, small groups of police officers (mostly constables and sergeants) arriving at the scene, together with some inspectors. Some officers would need to remain at their station to ensure that policing continued in other parts of London. We need those semi-operational, semi-strategic links which chief inspectors provide in such situations to ensure that some order is created out of the initial chaos. I believe that the rank of chief inspector is absolutely essential for that purpose.
As the noble and gallant Lord, Lord Bramall, said last week,
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"Altogether this petty tinkering with ranks seems to be a totally needless exercise, introduced for what purpose is not at all clear".—[Official Report, 15/3/94; col. 173.]
I support that sentiment. It is quite clear that in some of the retail outlets which we have seen recently stripping out layers of management—W.H. Smith stated last week that it would take out two managerial layers—they can do so because they are not managing large numbers of staff in any one location. It is therefore possible to push responsibility downwards while ensuring that the system continues to work well. But the police service is not a series of retail outlets. It is an organisation which has to come together with many different numbers of officers on many different occasions, some of them emergencies.
The current rank structure of the police service has been well tried and tested over many years. The amendment that we put before the House today eliminates two ranks leaving seven of the original nine ranks. But I am sure that any further reduction in formal layers of police service would lead to the setting up of informal grades, with all the consequences of confusion and incoherence that that would create. It would also mean that on large, critical public order occasions, the policing would collapse.
It is not an ideological or party political issue. It is a question of what will work in practice. I am sure that with fewer than seven ranks in the police service, effective command and control of large-scale incidents and public occasions would no longer be possible. I beg to move.
Lord Harris of Greenwich: My Lords, I support the amendment proposed by the noble Baroness. In responding to an amendment which sought to maintain two of the ranks—Amendment No. 2 retains one additional rank—at col. 178 of Hansardon 15th March the noble Earl stated:
"The purpose of removing these ranks is fairly straightforward … It is to enable the further streamlining of the management hierarchy by simplifying the structure".
Two points may be made on that. First, I echo a point made by the noble Baroness. The noble Earl's argument might be entirely persuasive if one were discussing the affairs of an engineering company or a supermarket chain, but one is not. One is discussing the situation which will apply to a disciplined force. It is the only one, incidentally, which is in any sense comparable with the Armed Forces. As the noble Baroness reminded us, there are 18 ranks in the services; in the police there are now nine. Even if the amendment were carried, there will in future be only seven. Quite apart from anything else, there has already been substantial progress in reducing police hierarchies, as I pointed out on the last occasion we debated the issue. Since 1990 there has been a reduction of rather over 350 officers from the rank of chief inspector to chief superintendent. That process is, if anything, accelerating.
I know that the noble and gallant Lord, Lord Bramall, is extremely sorry that he is unable to be present today. It is worth reminding the House of what he said at col. 173 of the Official Report on 15th March. He stated:
"I believe it will seriously reduce operational flexibility and will harm morale and motivation without any consequent benefits to the organisation".

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I believe that that is right. The effect of declining to accept an amendment on these lines would be profoundly damaging.
My second point is this. As the Government are aware, the Association of Chief Police Officers is opposed to what the Government have proposed so far as concerns rank structure. Many chief officers take the same view as the noble Baroness; namely, that if there is no additional rank in the way that we propose in the amendment, a dangerous degree of confusion could arise if there is a sudden disaster situation.
The noble Baroness gave two good examples: the Harrods explosion and the King's Cross disaster. The response of the noble Earl on the last occasion was to point out what operates in a planned public order situation where the police have to respond and where there is, as he rightly said, the gold, silver and bronze badge arrangement. Through it, officers have defined responsibilities according to the badge which they possess on that occasion. But that does not deal with the sudden emergency situation which could have catastrophic consequences and raises the most serious issues of public safety.
On a whole series of issues so far, the Government have decided not to accept the opinion of the professional heads of the service on the matter. They have refused to accept the views of the Association of Chief Police Officers on a whole range of matters. On this one, it seems to me, the issue is clear cut and the House will he taking an immense risk regarding public safety—quite apart from all the other considerations which have been put forward—if it does not accept the amendment. I profoundly hope that even now it will.
4 p.m.
Lord Allen of Abbeydale: My Lords, I wish to add a word in support of the amendment to which I was glad to put my name. The Government's mind seems to be basically inconsistent with all that they said in the White Paper about the new responsibilities of the chief constable to organise his force as he thinks fit. I realise that the White Paper was then followed by the Sheehy Report which recommended the reduction in the number of ranks to six. Before today's debate, I thought it right to read again the lengthy chapter in which the report argues the case for that conclusion. Leaving aside the fact that it was hard to believe that they were writing about a disciplined service which might have to cope with large-scale emergencies at short notice, to my mind the report's arguments simply do not stand up against the practical experience which the noble Baroness, Lady Hilton, so ably explained and to the points made by the noble Lord, Lord Harris. I therefore strongly support the amendment and hope that it will meet with the approval of the House.
Lord Carr of Hadley: My Lords, I also wish to say a word in support of the amendment. My experience has been outside the police service, it has been within the world of business and industry. As the years have gone by I have come to see more and more clearly the advantages of a flat structure rather than a steep structure. In other words, I have been in favour of
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reducing the levels of authority rather than increasing them or reducing the ranks in a uniformed service, Therefore, I am in favour of reductions in principle.
However, to reduce the ranks from nine to six is overdoing it: one can have too much, even of a good thing. Over the past few weeks I have found an opportunity to discuss the matter informally and at length with chiefs of police. I have been convinced by the lengthy talks that I have had that we would be wise to leave the ranks at seven and not reduce them to six.
Lord Campbell of Alloway: My Lords, I support the amendment. It appears to have arisen from the embers of an all-party amendment in a debate which reflected the anxiety of the three Scottish police federations that a reduction in ranks from nine to six would affect efficient policing, especially in the larger areas such as Strathclyde. The all-party amendment had my support and inevitably I had to support this amendment on the basis that half a cake is better than no cake at all, and I suspect that is the position of the noble Baroness, Lady Hilton. It is understood that the all-party amendment may well be tabled in another place.
The amendment deals with the proposal on the face of the Bill for a reduction of only one rank for England, the intention being, it is understood, to abolish two further ranks by regulations under Section 7 of the 1964 Act. The Scottish police federations accept that parity of ranks must exist, but they wish, if possible, to retain the existing structure. Surely it is desirable that the parity of rank structure should be achieved on the face of the Bill rather than by a regulation. Furthermore, an extra two middle management ranks are proposed by the amendment, and that would go some way to meet the anxiety expressed by the three Scottish police federations, as requisite to maintain a wholly efficient service, especially in the large areas such as Strathclyde. Those points have already been expressed during the passage of the Bill, arid repetition is wholly unnecessary.
It may well be that in small areas such as the central region, the two middle management ranks may not be requisite and that one would suffice and only one appointment would be made. But surely it would be unwise to jeopardise efficiency in the larger areas.
There is one small matter: the "carpentry" of the amendment requires some slight adjustment to accommodate a "be" which has gone missing after "shall".
Lord Mottistone: My Lords, I too support the amendment. I supported the previous one; and until I examined it, I was worried that this amendment was going a little too close to the previous one, which was defeated on a Division in the previous debate at Report stage. However, I am satisfied that this proposal is sufficiently different, making an optional addition of a rank and not even specifying the name it might have. It gives all the flexibility the noble and gallant Lord, Lord Bramall, and I sought to provide to the chief constable so that if he had the right size of police force and the right kind of activities to consider, he would be able to expand on the precise rank structure which is in the Bill. It is that flexibility that is so important.

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Finally, I was convinced of the importance of the matter by the splendid speech of the noble Baroness, Lady Hilton, in making her contribution to the debate clearly from her practical experience of how policing is carried out. It seems to me that even though it is late and we have debated the subject before, your Lordships should give consideration to including the amendment in the Bill. I hope that my noble friend the Minister will be able to consider that the amendment is a worthy addition to those we have so carefully put into the Bill during its passage through your Lordships' House.
Earl Ferrers: My Lords, I can quite understand noble Lords in various parts of the House and people outside the House getting worked up at the prospect of one, two, three or any number of ranks disappearing. Everyone knows the ranks; they become attached to them and have pride in them. Therefore, no one likes to see them go. However, wherever I have been throughout the country during the consideration of the police Bill, I have found a variety of views. Some people such as the noble Baroness, Lady Hilton, say they would like chief inspectors. Others say that they want chief superintendents. I talked to a chief constable who said that he was quite happy to have none of them. So there is a variety of views. It is only right therefore that I should try to give noble Lords the reasoning behind the proposal. My noble friend Lord Campbell of Alloway said that the Scottish Police Federation is in favour of having the ranks. It may be. I can tell my noble friend that the British Police Federation is against having them. Again, that represents a variety of view.
The noble Lord, Lord Harris of Greenwich, asked why we do not take the advice of our advisers and said that the ACPO is not happy with the abolition of the rank structure. But Her Majesty's Chief Inspector of Constabulary and Her Majesty's inspectors generally are happy with the Government's proposals. They are my right honourable friend's advisers. I do not diminish one iota the views of those who feel that they would like a continuation of the existing rank structure. But I ask noble Lords to consider the proposal.
The purpose of removing the ranks of chief inspector and chief superintendent is to enable the further streamlining of the management hierarchy by simplifying the structure. That will provide clearer and more direct lines of communication. It will enable those police officers with the greatest ability to move more quickly through the ranks, and it will provide chief constables with the opportunity of exchanging middle management posts for more police officers on the beat. I agree with my noble friend Lord Carr. He said he thought that on the whole a flatter structure was better than a more pointed structure.
The need for streamlining force management structures has been accepted for some time by the police service. Many forces have already gone a great way to reducing the number of middle management posts. But the existing rank structure, which has five separate ranks from sergeant to chief superintendent, hinders forces from achieving the optimum management restructuring.
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I recognise that Amendments Nos. 2 and 6 do not propose the same arrangement for middle management ranks as did amendments at Report stage which dealt with rank structure and with which, I remind the House, noble Lords disagreed. The noble Baroness's amendment would require the Secretary of State to designate, in addition to inspector, two middle management ranks instead of one, as the Bill suggests, and instead of three, which is the present position.
I think that reforming the middle management rank structure will benefit the police service and will contribute towards maintaining and improving the quality of service that is provided to the communities that police forces serve. Within each of the two middle management ranks—inspector and superintendent—there will of course be posts which will vary. Some will carry heavier and some less heavy responsibilities. But there is no need to restrict the freedom of chief officers to move officers between posts by imposing an additional rank.
Experience from all walks of life, when reform of hierarchies has been proposed or has been implemented, is that, unless the tiers of responsibility are streamlined, the management functions expand to fill the available rank structure. It is against that that we have tried to work.
It is predictable that, unless clear and decisive steps are taken to slim down the rank structure, to provide for the clearer and more direct communications to which I referred, posts will be graded at each of the available levels and police officers will be expected to serve in those ranks as they progress through the management hierarchy. The existing rank structure provides too many hurdles for even the best officers to negotiate before they reach the senior management posts. That creates a barrier to quick and good progress. The removal of two of those hurdles will enable the best officers to move quickly through the middle management ranks and provides an appropriate balance between the need for officers to spend some time gaining experience as middle managers and not unduly hindering advancement to the top posts. That will ensure that the best and most capable officers will get to the top rather than languishing too long at one or more of the intermediate levels.
The noble Baroness's amendment would, in fact, improve the position relative to the current arrangements. It would be an improvement on the amendment that she put down last time. She would nevertheless be adding yet another hurdle to that proposed by the Government. Her Majesty's Chief Inspector of Constabulary and the Inspectorate of Constabulary generally are in agreement with the Government's proposal that there should be only one rank between inspector and assistant chief constable. They recognise that individual superintendents will have varying responsibilities but feel that that can be reflected in their pay rather than the rank structure.
The noble Baroness referred to instances such as riots and so forth. It is perfectly true that one has the gold, silver and bronze structure with which the noble Baroness will be all too familiar. That also occurs when there are emergencies. All forces have contingency

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plans which are put into operation immediately an incident occurs. But it is the allocation of the roles and responsibilities in an effective manner which gives clear leadership, and not simply a proliferation of ranks. Effective leadership is dependent on the quality of the person entrusted with the responsibility and does not depend simply upon his or her rank.
The noble Lord, Lord Harris, and the noble Baroness, Lady Hilton, made the comparison with the Army. They quoted what the noble and gallant Lord, Lord Bramall, said on the last occasion. I can quite understand people using the Army as a comparison. But there is not really that much of a comparison to be made. There are 18 ranks in the Army; at the moment there are nine ranks in the police service. It is proposed that there should be six ranks in the police service. I find it difficult to see any correlation between the fact that it is perfectly acceptable for the Army to have nine more ranks, as it does, than has the police service but that it is unacceptable for it to have 12 more. There is no great comparison. The Army's basic command unit is that of a platoon of some 30 people. The police service operates mostly on the basis of the individual constable—singly, although sometimes in pairs. Therefore, the comparison between the Army and the police is a thin one other than the fact that both are disciplined services. I do not believe it right to conclude that because the Army already has so many more ranks than the police service it is wrong for it to have more or for the police to have fewer. The police rank structure should be determined by the requirements on the police.
I come back to the point I made at an earlier stage; namely, that what is important in relation to the police is putting into the position of responsibility the correct person, and not necessarily that person's particular rank. I hope that noble Lords agree that it would be better for the proposals of the Government to remain as they are, directed to the elimination of the two positions of rank referred to in the amendment, and for us not to accept the amendment of the noble Baroness.
4.18 p.m.
Baroness Hilton of Eggardon: My Lords, I do not propose to deal with all the arguments put forward by the Minister. We dealt with most of them at previous stages. I wish to address briefly the point about ranks apparently being hurdles to promotion. We have had chief constables who arrived at that rank at the age of 42 or thereabouts, which suggests that the ranks are not barriers to promotion under the current system. It is not sufficient to argue that ranks have to be removed to enable bright people to get to the top since that already happens in the police service. Clearly there is support on all sides of the House. I therefore wish to test the opinion of the House on the amendment.
4.19 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 134; Not-Contents, 107.

Division No.1

CONTENTS

Ackner, L.

Lester of Herne Hill, L.

Addington, L.

Listowel, E.

Airedale, L.

Llewelyn-Davies of Hastoe, B.

Allen of Abbeydale, L. [Teller.]

Lockwood, B.

Allenby of Megiddo, V.

Longford, E.

Alport, L.

Lovell-Davis, L.

Ardwick, L.

Mallalieu, B.

Ashley of Stoke, L.

Malmesbury, E.

Aylestone, L.

Marshall of Goring, L.

Barnett, L.

Mayhew, L.

Beaumont of Whitley, L.

McGregor of Durris, L.

Belhaven and Stenton, L.

McIntosh of Haringey, L.

Blackstone, B.

McNair, L.

Boston of Faversham, L.

Mellish, L.

Bottomley, L.

Merrivale, L.

Broadbridge, L.

Milner of Leeds, L.

Bruce of Donington, L.

Molloy, L.

Campbell of Alloway, L.

Moran, L.

Campbell of Eskan, L.

Morris of Castle Morris, L.

Carmichael of Kelvingrove, L.

Mottistone, L.

Carter, L.

Mowbray and Stourton, L.

Castle of Blackburn, B.

Mulley, L.

Cledwyn of Penrhos, L.

Murray of Epping Forest, L.

Clinton-Davis, L.

Nicol, B.

Cocks of Hartcliffe, L.

Northfield, L.

Cork and Orrery, E.

Peston, L.

Croham, L.

Prys-Davies, L.

Dainton, L.

Richard, L.

Dean of Beswick, L.

Rippon of Hexham, L.

Dean of Thornton-le-Fylde, B.

Robson of Kiddington, B.

Derwent, L.

Rochester, L.

Diamond, L.

Rodgers of Quarry Bank, L.

Dormand of Easington, L.

Russell, E.

Ezra, L.

Sainsbury, L.

Falkland, V.

Saltoun of Abernethy, Ly.

Seear, B

Fisher of Rednal, B.

Sefton of Garston, L.

Foot, L.

Serota, B.

Gainsborough, E.

Shannon, E.

Gallacher, L.

Shaughnessy, L.

Geddes, L.

Simon of Glaisdale, L.

Geraint, L.

Slim, V.

Gisborough, L.

Stallard, L.

Gladwyn, L.

Stedman, B.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Grantchester, L.

Strabolgi, L.

Granville of Eye, L.

Strafford, E.

Greene of Harrow Weald, L.

Swansea, L.

Halsbury, E.

Swinfen, L.

Hamwee, B.

Taylor of Blackburn, L.

Hanworth, V.

Tenby, V.

Harris of Greenwich, L.

Thurlow, L.

Haskel, L.

Tordoff, L.

Hayter, L.

Trevor, L.

Healey, L.

Turner of Camden, B.

Hilton of Eggardon, B.

Wallace of Coslany, L.

Hollis of Heigham, B.

Walton of Detchant, L.

Holme of Cheltenham, L.

Warnock, B.

Houghton of Sowerby, L.

Weatherill, L.

Hylton-Foster, B.

Wharton, B.

Irvine of Lairg, L.

White, B.

Jay of Paddington, B.

Wigoder, L.

Jay, L.

Wilberforce, L.

Jeger, B.

Williams of Crosby, B.

Jenkins of Hilihead, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Williams of Mostyn., L.

Judd, L.

Wilson of Rievaulx, L.

Kilbracken, L.

NOT-CONTENTS

Addison, V.

Balfour, E.

Ailesbury, M.

Barber, L.

Alexander of Tunis, E

Beloff, L.

Annaly, L

Blatch, B.

Archer of Weston-Super-Mare, L.

Blyth, L.

Astor of Hever, L

Boyd-Carpenter, L.

Astor, V.

Brabazon of Tara, L

759

Braine of Wheatley, L.

Long, V.

Brougham and Vaux, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Burnham, L.

Butterworth, L.

Macleod of Borve, B.

Cadman, L.

Marlesford, L.

Campbell of Croy, L.

Mersey, V.

Carnock, L.

Milverton, L.

Chalker of Wallasey, B.

Mountevans, L.

Chelmsford, V.

Munster, E.

Clark of Kempston, L.

Murton of Lindisfarne, L.

Colnbrook, L.

Newall, L.

Courtown, E.

Norrie, L.

Cox, B.

O'Cathain, B.

Craigavon, V.

Oppenheim-Barnes, B.

Cranborne, V.

Orr-Ewing, L.

Cullen of Ashbourne, L.

Oxfuird, V.

Cumberlege, B.

Pender, L.

Dean of Harptree, L.

Peyton of Yeovil, L.

Denham, L.

Plan of Writtle, B.

Demon of Wakefield, B.

Plummer of St. Marylebone, L.

Dixon-Smith, L.

Rankeillour, L.

Dormer, L.

Reay, L.

Downshire, M.

Renton, L.

Dundee, E.

Renwick, L.

Elles, B.

Rodger of Earlsferry, L.

Elliott of Morpeth, L.

Romney, E.

Elton, L.

Sandford, L.

Ferrers, E.

Sharples, B.

Flather, B.

Skelmersdale, L.

Fraser of Carmyllie, L.

St. Davids, V.

Fraser of Kilmorack, L.

Stewartby, L.

Gainford, L.

Strathclyde, L.

Gardner of Parkes, B.

Strathcona and Mount Royal, L.

Goschen, V.

Strathmore and Kinghorne, E. [Teller.]

Hailsham of Saint Marylebone, L.

Harding of Petherton, L.

Sudeley, L.

Harlech, L.

Suffield, L.

Harvington, L.

Teviot, L.

Hayhoe, L.

Teynham, L.

Henley, L.

Thomas of Gwydir, L.

HolmPatrick, L.

Trumpington, B.

Hood, V.

Tugendhat, L.

Howe, E.

Ullswater, V. [Teller.]

Jakobovits, L.

Vaux of Harrowden, L.

Kenyon, L.

Vivian, L.

Kimball, L.

Wakeham, L. [Lord Privy Seal.]

Knollys, V.

Westbury, L.

Lindsey and Abingdon, E.

Resolved in the affirmative, and amendment agreed to accordingly.
4.27 p.m.
Clause 9 [Civilian employees]:
[Amendments Nos. 3 and 4 not moved.]
Clause 14 [Police grant and other grants]:
[Amendment No. 5 not moved.]
Clause 42 [Constitution of police force]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 6:
Page 22, line 1, after ("ranks)") insert:
("(a) in subsection (1)—

(a) leave out the words "be such as may be prescribed and the ranks so prescribed shall",

(b) for the words "chief superintendent and superintendent" there shall be substituted the words "sergeant, inspector and two other ranks between inspector and assistant chief constable which may be designated by the Secretary of State"; and

(b)").
On Question, amendment agreed to.
Clause 61 [Alteration of magistrates' courts committee areas]:
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 7:
Page 31, line 28, at end insert:
("( ) The Lord Chancellor shall not make an order under subsection (3) above unless he is satisfied that the making of the order is likely to contribute to an overall increase in the efficiency of the administration of the magistrates' courts for the magistrates' courts committee area or areas to which the order relates.").
The noble and learned Lord said: My Lords, this amendment is brought forward in furtherance of the undertaking I gave to my noble friend Lord Mottistone —it was a matter in which the noble Lord, Lord McIntosh of Haringey, also showed interest—in respect of the criteria under which the power to amalgamate magistrates' courts committees might be exercised by me.
On considering the details, I have been able to propose this amendment which is somewhat differently drafted from the one put forward by my noble friend Lord Mottistone but which I believe encapsulates the ideas on which his amendment was based. In so far as I have taken his ideas, I thank him. In so far as the draft has been altered a little, that is the work that we put into it. So the amendment is something of a combined effort. I beg to move.
Lord McIntosh of Haringey: My Lords, as the noble and learned Lord well knows, we would prefer that the Lord Chancellor did not have the power to make amalgamations of magistrates' courts committees-except when such amalgamations are proposed by the committees themselves. But, as he rightly said, we urged him to take this step and provide that an order should not be made without good reason; in other words, unless, as the amendment says, it contributes to an overall increase in the efficiency of the administration. For that lesser but welcome concession we are grateful.
Lord Mottistone: My Lords, I thank my noble and learned friend for going so far in accepting the principle of what I was trying to say at the last stage of the Bill. Like the noble Lord, Lord McIntosh, I would have preferred that it did not go this far, but it is a splendid improvement. I only hope that my noble and learned friend will be guided by all the local knowledge that may be available to him when he comes to make any decisions within the terms of the amendment.
The Lord Chancellor: My Lords, I am grateful for the way the amendment is received. Certainly the emphasis of the provisions is on the need for local consultation. I very much endorse the principle that this kind of amalgamation can only take place with careful consideration of local circumstances and with a good deal of encouragement to local initiative. I am sure that it is possible to build on existing and possibly improved arrangements for co-operation in a number of areas. I therefore accept the spirit of what my noble friend said a moment ago. However, it is necessary to provide the possibility of initiative from the Lord Chancellor in order to encourage what otherwise may not take place. I commend the amendment to your Lordships.
On Question, amendment agreed to.
Clause 65 [General powers and duties of magistrates' courts committees]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 8:
Page 34, line 37, leave out ("chief justices' clerk, the other") and insert ("justices' chief executive, the").
The noble and learned Lord said: My Lords, Amendment No. 8 arises in pursuance of my acceptance at the last stage of the change of title from chief justices' clerk to justices' chief executive. There are a large number of consequential amendments on the same basis which I shall move at the appropriate time. I am glad that we were able to reach a satisfactory agreement for the name for the justices' chief executive. I beg to move.
Lord Peyton of Yeovil: My Lords, I should briefly like to thank my noble and learned friend for tabling Amendment No. 8, which is a considerable and genuine improvement. There was a great deal of nervousness in regard to the new official who was to be called the "chief justices' clerk" and a fear that he would become not only the boss of the justices' clerks in the area, the nornirtee and the agent of the Lord Chancellor's Department, but also be able, in a way which was particularly undesirable, to encroach upon the independence of justices' clerks in giving advice on legal matters. In other words, he would be able to influence them in the exercise of their judicial functions. There was widespread agreement that that was undesirable.
The new title makes it clear in the Bill, and I hope will make it clear and have a decisive effect in practice, that the functions of the new appointment are essentially administrative and never judicial.
Lord Boyd-Carpenter: My Lords, I too thank my noble and learned friend for the amendment. He may recall that at an earlier stage of the Bill I raised, and attached some importance to, the question of nomenclature. It seemed to me that the original description—chief justices' clerk—may well be misunderstood and imply some connection with the Lord Chief Justice. I am therefore particularly glad that my noble and learned friend accepted the change in nomenclature. If he will allow me to say so, that is characteristic of the sensitive yet forceful way in which he has conducted the Bill.
Viscount Tenby: My Lords, perhaps I may briefly add my thanks to the noble and learned Lord the Lord Chancellor. This was a matter of great import to many people within the service. At an early stage the noble and learned Lord said that he would listen; he listened and acted accordingly. We are all deeply grateful to him.
The Lord Chancellor: My Lords, I am grateful for what has been said. I commend the amendment to your Lordships.
On Question, amendment agreed to.
Clause 67 [Appointment and functions of chief justices' clerk]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 9 to 11:
Page 36, line 5, leave out ("chief justices' clerk") and insert ("justices' chief executive").
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Page 36, line 6, leave out ("chief justices' clerk") and insert ("justices' chief executive").
Page 36, line 17, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, Amendments Nos. 9, 10 and 11 are consequential to Amendment No. 8. With your Lordships leave, I move them en bloc. I beg to move.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 36, line 19, at end insert:
("( ) Where the Lord Chancellor declines to approve any person who is named in an application under subsection (2) (a) above, he shall inform the magistrates' courts committee of the reasons for his decision.").
The noble and learned Lord said: My Lords, in moving Amendment No. 12 I shall speak also to Amendment No. 22. The amendment results from my undertaking to accept the principle of part of the amendments proposed by my noble friend Lord Peyton of Yeovil and the noble Viscount, Lord Tenby. As I indicated, I was perfectly content that the reason should be given for any disapproval. I had always intended that and therefore have no difficulty in putting it on the face of the statute. I beg to move.
Lord Peyton of Yeovil: My Lords, again briefly I thank my noble and learned friend for tabling Amendment No. 12. I acknowledge that it is a considerable improvement on the amendment that I proposed at an earlier stage. I am grateful to my noble. and learned friend.
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 14 to 18:
Page 36, line 20, leave out ("chief justices' clerk") and insert ("justices' chief executive").
Page 36, line 23, leave out ("chief justices' clerk") and insert ("justices' chief executive").
Page 36, line 28, leave out ("clerk") and insert ("executive").
Page 36, line 37, leave out ("chief justices' clerk") and insert ("justices' chief executive").
Page 36, line 44, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, Amendments Nos. 14 to 18 are again consequential on Amendment No. 8. With your Lordships leave therefore I move them en bloc. I beg to move.
On Question, amendments agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 19:
Page 37, line 1, leave out subsection (3).
The noble Lord said: My Lords, with Amendment No. 19 we turn to the clause which describes the functions of what we shall now call, with due thanks to the noble and learned Lord the Lord Chancellor, the justices' chief executive rather than the chief justices' clerk, as he is still described in the side heading to the clause. Clearly, despite what other noble Lords have said, it is not only the name that is important but also the functions. As has been emphasised on many occasions from all sides of the House, it is important that those functions should reflect the new title given to this person. This person is now called the justices' chief executive, and it is intended that that title shall reflect

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administrative responsibilities rather than judicial responsibilities because, at the risk of repeating the important argument which has been made so widely at earlier stages, the judicial functions of a justices' clerk are peculiar in the sense, not that they are strange, but that they reflect a relationship with the members of the Bench which is certainly unique in our judicial system and probably unique in any judicial system.
That reflects the fact that we have a lay magistracy, or a largely lay magistracy, and the only access to legal advice which that lay magistracy has is legal advice from their justices' clerk. So there is a relationship which needs to be a relationship of confidence and trust between the Bench and that justices' clerk. It is important that legislation should not allow the person who is now recognised by his title to be an administrative head—a head of paid service, so to speak —to intervene in that relationship of trust and confidence between the Bench and the justices' clerk.
What we are worried about in subsection (3) of new Section 24E is the provision that the justices' chief executive shall,
"promote discussions relating to law, practice and procedure among the justices' clerks for petty sessions areas".
When we deal with Clause 70 we shall come to the question of protection of independence; but promoting discussions on law, practice and procedure seems to us to be a very wide non-administrative responsibility for our justices' chief executive. The justices' chief executive, after all—unlike justices' clerks—has to have his appointment approved by the Lord Chancellor. We are grateful that the reasons for disapproval are now having to be given; we are grateful for all what I might call the secondary amendments which have been made; but he is still a person who is responsible in some sense not only to the magistrates' courts committee but also to the Lord Chancellor. It seems to be inappropriate for such a person to be taking an active part, a promoting part, in discussions on, in particular, law.
There have been examples of attempts at government interference. I am not making any particular case in relation to the existing Lord Chancellor at all; but attempts have been made by Home Secretaries in the past to expedite hearings in certain kinds of cases; as, for example, at the time of the miners' strike. There were attempts more recently to get Benches to modify the provisions on unit fines, which came across our justicial sky for a very short time and disappeared below the horizon within less than three years.
There are a number of cases when it may be the wish of, or in the interests of, central government as a whole to promote a particular kind of interpretation of the law by lay magistrates. The point that this amendment seeks to make is that that should not be done by an administrative official of the magistrates' courts committee. After all, magistrates' courts committees themselves do not seek to intervene in any way in the judicial functions of the Bench. Why should the officer of the magistrates' courts committee seek to intervene in the judicial relationship between the justices' clerk and his Bench?
It seems an irrational extension of administrative responsibility, it is out of keeping with the amendments which have just been agreed, and I hope that your Lordships will agree that subsection (3) is no longer an appropriate part of Clause 67 of the Bill. I beg to move.
The Lord Chancellor: My Lords, I have to inform the House that if this amendment is agreed to, I cannot call Amendments Nos. 20 or 21.
4.45 p.m.
Lord Ackner: My Lords, I should like actively to support what the noble Lord, Lord McIntosh, has said. I was sufficiently concerned about ensuring that the chief executive limited himself to executive activities to suggest in Amendment No. 21 that for "promote" one should have "make arrangements for", merely to stress that the function of the chief executive of course remains to make arrangements for these forums to take place. He can send out the notices, make sure that a venue is the correct one, and ensure that papers for the meetings are distributed. But that is an executive function, whereas to promote does involve being actively concerned in.
Your Lordships will not be surprised at my conceding that the matter on this subject was put admirably and more effectively than I can by the Lord Chief Justice in Committee on 22nd February. He said:
"There is no reason why they [the meetings] should not be convened by the chief executive, but what I object to is the idea. that they will be there with the headmaster, and that the headmaster may indicate to them that the throughput in their courts has been rather too thin, that they have been granting too much legal aid and that they ought to be granting adjournments less frequently and so on. Or, if he does not say that frankly and overtly, they may well get the feeling that they had better cut down the number of adjournments and the legal aid and they had better step up the throughput to achieve favour with the chief. He ought not to have any part in any of that. That is the real issue here. I hope that the Committee will see it as being not only fundamental to this Bill, but fundamental to the administration of justice in this country".—[Official Report, 22/2/94; col. 578.]
Those are very firm words from very high authority, and I totally concur with them.
Lord Mottistone: My Lords, I should briefly like to say that of these two amendments I think that Amendment No. 21 in the name of the noble and learned Lord, Lord Ackner, is preferable to Amendment No. 19, which sweeps the subsection away altogether. I hope that my noble and learned friend who sits on the Woolsack will give consideration to Amendment No. 21.
Lord Simon of Glaisdale: My Lords, I do not think it matters very much which of these two amendments is accepted. Both, importantly, represent the substance of the concession which my noble and learned friend on the Woolsack has so admirably made; namely, that the officer in question should be seen as an executive officer of the magistrates' courts committee. But there is the line that goes back to the Lord Chancellor's Department because the Lord Chancellor himself is a living contradiction of the extreme view of the separation of powers.
Nevertheless, it is highly important—perhaps even more important when one gets a body of lay justices

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administering the major part of our criminal law—that the executive and the judicial functions should be kept separate. I hope my noble and learned friend will accept the spirit, at any rate, of the amendment moved by the noble Lord, Lord McIntosh, if not the amendment that is to be moved by my noble and learned friend Lord Ackner. It seems to me that if he does that he will be giving substance to what he has conceded and showing that it is not just a matter of words and names.
The Lord Chancellor: My Lords, it is quite important for me to draw your Lordships' attention to the background to the provisions which are the subject of the amendment of the noble Lord, Lord McIntosh of Haringey. I believe that I have narrated it already, but because it is relevant I shall repeat it here as briefly as I can. The provision in this subsection which the amendment of the noble Lord, Lord McIntosh, would remove arose from a proposal by the Justices' Clerks' Society for a legal forum. The society saw the forum as a useful way of exchanging ideas and considering obvious inconsistencies of approach.
This proposal was that the justices' chief executive, acting as a facilitator, would bring together the justices' clerks in his area as a way of using the collective experience of the group to consider and improve the quality of advice given to benches. The principal strands of the scheme, which the society envisaged appearing in statute, were that the justices' chief executive would have a duty to convene the legal forum, and justices' clerks would be required to attend meetings and participate in discussion which the justices' chief executive would facilitate. The main aim of the forum would be to agree relevant matters wherever possible and to limit any remaining differences of opinion. The idea was that such a mechanism would minimise the number of situations in which unnecessarily conflicting ideas prevail in any area. Noble Lords know at least as well as I that that is one aspect of the magistrates' courts' administration which from time to time becomes subject to comment.
The consultation process revealed wide support in the service for the principle of a legal forum, drawing the approval of, among others, the Association of Magisterial Officers, the Standing Conference of Clerks to Magistrates' Courts Committees and the London Magistrates' Clerks' Association. This is underlined by the terms of the Alternative Framework document, signed by all the national representative bodies in the service. This document shows that the service as a whole supports the principle of a legal forum, through which—and I quote from the agreed document—
"The judicial independence of the justices' clerk will be preserved, and [which] will also contribute to the independence of the system of summary justice. The chief executive"—
that is the name given in the document to the head of service and substantially that is what we are using now—
"should have the authority to call meetings of the legal forum, chair meetings and provide secretarial support but should have no vote. For the avoidance of doubt, the decisions of the forum would be persuasive only".
That quotation is from a document agreed by every representative body in the service, as I understand it—certainly from the principal bodies.
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I believe that the amendment of the noble Lord, Lord McIntosh, would do away with the legal forum altogether. I personally strongly take the view that the legal forum is a most useful idea. I readily acknowledge that it came from the Justices' Clerks' Society. It is not very different from the kind of discussions which noble and learned Lords who are in the habit of hearing appeals have at the end of an appeal; it is not that any one noble and learned Lord's opinion will rule over anyone else's because each noble and learned Lord has his own opinion. But it is useful to have discussions about the different views no doubt in the hope that some degree of consensus and clarity of judgment may emerge.
As my noble and learned friend Lord Ackner said, my noble and learned friend the Lord Chief Justice indicated a way in which this kind of arrangement may be abused. But I have no doubt that the Justices' Clerks' Society, in proposing this idea, knew perfectly well that there are good ways in which any tendency in the chief executive to be cast in the role of a headmaster could be: curbed fairly readily. The amendments which I have proposed to the Bill, and which I believe conform very largely to the idea of the chief executive that the. Justices' Clerks' Society has, are in accordance with that. Therefore, I invite your Lordships to reject this amendment.
As regards the amendment of my noble and learned friend Lord Ackner, I have no very strong views about. it. "Promote" is a word which parliamentary counsel has adopted. The meaning of that word which I believe is most relevant is to "help, forward or encourage" such discussions. The word has the advantage of being slightly shorter than the phrase which my noble and learned friend proposed. However, I do not feel sufficiently strongly about the matter to resist it if your Lordships believe that that difference is important. But the idea of the legal forum is important. I invite your Lordships to reject the present amendment.
Lord McIntosh of Haringey: My Lords, I am very grateful to all noble Lords who have expressed support for the principle behind these amendments and to the noble and learned Lord the Lord Chancellor for what he has just said. It was only in the interests of brevity that I failed to make it clear. I entirely support the idea of a legal forum. I have no resistance at all to that. My entire speech and the thrust of my amendment was not to abolish legal for a but to make sure that the administrative head of the service did not have an active judicial role. However, in view of what the noble and learned Lord has said—that he is prepared to accept the wording of Amendment No. 21; I take it from his nod that he is confirming that and that we shall agree that amendment —it is better that I beg leave to withdraw Amendment No. 19.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 20:
Page 37, line 1, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, this is another amendment which is consequential to Amendment No. 8. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No. 21:
Page 37, line 2, leave out ("promote") and insert ("make arrangements for").
The noble and learned Lord said: My Lords, I have already spoken sufficiently on the subject of this amendment. I am delighted to have heard my noble and learned friend the Lord Chancellor say that it is a satisfactory amendment. I beg to move.
On Question, amendment agreed to.
Clause 68 [Appointment and removal of justices' clerks]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 22:
Page 37, line 24, at end insert:
("( ) Where the Lord Chancellor declines to approve any person who is named in an application under subsection (2) (a) above, he shall inform the magistrates' courts committee of the reasons for his decision.").
The noble and learned Lord said: My Lords, this amendment is consequential as it is dealing with the same subject as Amendment No. 12 in respect of the justices' clerk. Amendment No. 12 referred to the justices' chief executive. In moving this amendment perhaps I may mention that the noble Lord, Lord McIntosh of Haringey, suggested that the chief justices' chief executive appointment would be subject to the approval of the Lord Chancellor, whereas that of the justices' clerk would not. The justices' clerk appointment is also subject to the approval of the Lord Chancellor and before that it was subject to the approval of the Secretary of State. So the Lord Chancellor is equally involved in both these key appointments in the structure. As far as I have been able to judge, that particular involvement, which has been going on for a long time as regards the justices' clerk appointment, has worked extremely well. I hope that as long as I am responsible that arrangement will continue. I beg to move.
Lord McIntosh of Haringey: My Lords, I am glad to accept the Lord Chancellor's correction. He is right in saying that justices' clerks have been, at least formally, subject to the approval of the Lord Chancellor and, before him, the Secretary of State for many years. The successful operation of the approval to which he refers is evidenced by the fact that such approval has virtually never been denied. I hope that that will be the case also for the justices' chief executive.
The Lord Chancellor: My Lords, I agree with what the noble Lord said about the history of the matter. I also very much agree with the hope that he has expressed for the future. I believe that it would be extremely unlikely that the Lord Chancellor would require to disapprove anyone whom a magistrates' courts committee has in mind to approve and who is appropriately qualified.
On Question, amendment agreed to.
Clause 69 [Chief justices' clerks and justices' clerks to be employed under contracts of service]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 38, line 10, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, this amendment, together with Amendments Nos. 24 and 25, is consequential upon Amendment No. 8.
On Question, amendment agreed to.
Clause 70 [Independence of justices' clerk and staff in relation to legal functions]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 24 and 25:
Page 38, line 35, leave out ("chief justices' clerk") and insert ("justices' chief executive").
Page 38, line 39, leave out ("chief justices' clerk") and insert ("justices' chief executive").
On Question, amendments agreed to.
5 p.m.
Lord Ackner Lord Ackner moved Amendment No. 26:
Leave out Clause 70 and insert the following new clause:
("Independence of justices' clerk and staff in relation to legal functions
70. After section 30 of the 1979 Act there shall be inserted—"Independence of justices' clerk and staff in relation to legal functions.
30A.—(1) A justices' clerk and any member of the staff of a magistrates' courts committee shall not be subject to the direction of the magistrates' courts committee, the justices' chief executive or any other person when giving advice to justices of the peace on the exercise of their judicial functions or discretion, either in respect of a particular case or in relation to cases generally, whether such advice is given in the course of training, or in discussions relating to law, practice or procedure, or otherwise.
(2) A justices' clerk shall not be subject to the direction of the magistrates' courts committee, the justices chief executive or any other person when exercising any judicial function or discretion given to him.".").
The noble and learned Lord said: My Lords, I think that it is generally accepted that this raises a very important matter. Clause 70, as it is now numbered, has as its heading:
"Independence of justices' clerk and staff in relation to legal functions".
Perhaps I may again start my submissions by inviting your Lordships' attention to the observations that were made by my noble and learned friend the Lord Chief Justice on Second Reading. He said:
"I have asked the parliamentary secretary to the Lord Chancellor what he considers those judicial functions to be, he has written to me that he 'doubts there is much to be gained from attempting to define which of the functions of justices' clerks are or are not judicial ones'. I find that observation astonishing. Since the Lord Chancellor attaches sufficient importance to the principle of judicial independence to enshrine it in a specific clause in the Bill one may have expected him and his department to have taken care to identify the traditional functions which need to be protected.
This matters a great deal. The first category of judicial functions to which I refer is the provision by justices' clerks of advice to the Bench on what the law is and how it should be applied to the facts of a particular case. This function is closely akin to that of a judge in a criminal trial who directs a jury as to the law that it needs to know to decide the case. I would be surprised if anyone, lawyer or layman, sought to cast doubt on whether this was in effect a judicial function. What else could it be? It would clearly not be administrative. In addition, justices' clerks exercise some judicial functions in their own right".—[Official Report, 18/1/94; col. 475.]
My noble and learned friend went on to specify those functions.
Emboldened by that, and for reasons which I shall indicate in a moment, I find the present clause quite

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unsatisfactory. On Report I produced an amendment totally redrafting Clause 69, as it then was, so that it identified two areas: the work of advice by the clerk and the clerk's own functions. Then, to avoid any problem of what was administrative and what was judicial, I set out a number of items under the heading:
"The following are deemed to be judicial functions for the purpose of the justices' activities".
Apart from a minor aberration on the part of my noble and learned friend Lord Donaldson, who arrived somewhat late, there was no disagreement that all those which I had identified were properly identified, except when my noble and learned friend the Lord Chancellor came to deal with it. In those circumstances, I thought that I would show the flexibility that the House expects when an amendment is not viewed with favour by the Government by shortening what I was proposing so as to focus firmly on what are the functions, in general terms, which should be protected, seeing that my noble and learned friend the Lord Chancellor did not take kindly to my efforts better to define them by "deeming".
Before I turn to my amendment, perhaps I should consider what I have against the present clause. I have two matters firmly against it. The first is that, as it now stands, Clause 70 begins with the words:
"When exercising the functions specified in subsection (2) below"—
I pause there because that subsection states:
"The functions referred to in subsection (1) above are functions conferred by rules made in accordance with section 144 of the Magistrates' Courts Act 1980 by virtue of section 28(1) or (1A) of this Act".
I adopt entirely the observations that were made by my noble friend Lord Renton when he dealt with that matter on Report by pointing out that, when dealing with matters as important as this, it is wholly unsatisfactory to put on the face of a statute what is the protection which the justices' clerks should have and what is the interference which is to be resisted by secondary legislation. The noble Lord said:
"It is … legislation by reference … it is legislation by reference to secondary legislation, that is a further argument against it". —[Official Report, 17/3/94; cols. 448–9.]
The provisions were criticised in Committee by the noble Lord, Lord McIntosh, on the basis not only of what my noble friend Lord Renton said, but because they were opaque and one did not know what one was talking about. He also said that since secondary legislation could change the provisions were a moving target which could be changed without reference back to Parliament. Therefore, the functions covered by that piece of protection were, on the face of it, difficult to find and in future may turn out to be wholly illusory.
My second criticism is, in my respectful submission, a much more serious one. The words which are to be found on page 38, line 32, are these:
"or giving advice to justices of the peace in an individual case".
The Lord Chief Justice said nothing about "an individual case" when he said that advising justices is the most obvious judicial function that needs protection. I pointed out on the last occasion that we considered this matter that that meant that those who wish to interfere in the work of the justices' clerk—that is, the justices' legal adviser —are not allowed to say today, "On no account advise the justices to allow this case to fight.
Persuade them to accept an appeal and save money". That is not permitted. But when they have done that today and acted with independence, the justices' clerk can then say, "I am not concerned with identifying any subsequent case. I am telling you now as a general principle, 'Don't ever do that again'". That is meant to be something that he cannot do. He will be confined by the provisions to protection—not in the generality but in a particular case.
My noble and learned friend the Lord Chancellor sought to deal with that on the last occasion in a manner which I found very difficult to follow. I am sure that that is my fault. He said, speaking of me:
"My noble and learned friend said, "Well, immediately after the case is decided, someone could say, 'You shouldn't have done that—. By that time it is too late to affect the case that has already passed, and in any future case the justices' clerk is protected by the fact that no direction, even in that form, is to apply to him or her in relation to any advice he or she gives".—[Official Report, 17/3/94; col. 452.]
But that is not what the clause says. That may be what my noble and learned friend hopes that it says, but it is not what it says.
To make assurance doubly sure in my amendment I have sought to spell this out in clear terms:
"A justices' clerk"—
I leave out members of staff who may be acting in his place—
"shall not be subject to the direction of the magistrates' courts committee, the justices' chief executive or any other person when giving advice to justices of the peace—"
now comes the identification of the subject-matter—
"on the exercise of their judicial functions or discretion"—
and when that happens is now identified—
"either in respect of a particular case or in relation to cases generally, whether such advice is given in the course of training, or in discussions relating to law, practice or procedure, or otherwise".
I emphasise that I have focused entirely upon advice given by the justices' clerk in relation to the exercise of judicial functions or discretion. I say that once that is identified it does not matter a hoot whether he does it in the course of training, in a forum, in the washroom, or in a public house. That is advice which he gives. It does not matter whether it relates to a case that is coming on today, tomorrow or may never occur at all.
To clarify the other matters—I leave out the deeming, which was so unpopular—I say that protection must also be given to a justices' clerk when he is exercising any judicial function or discretion that belongs to him personally. If Clause 70 is to provide the protection that we have been told so often can give confidence to the clerks then I respectfully submit that it must be in these or very similar terms. It cannot be in the terms proposed in the clause as it now stands. I beg to move.
5.15 p.m.
Lord Renton: Perhaps I may say that my conscience is clear in that I have supported my noble and learned friend the Lord Chancellor on the various provisions of the Bill for which he is responsible but have rejoiced at the amendments that he has made or accepted. I have not voted against the Government once on that part of the Bill. But I strongly support the noble and learned Lord, Lord Ackner, on this matter. At Report stage we had a

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long and important discussion on the subject. I have read carefully the debate that we had on that occasion, especially the remarks of my noble and learned friend the Lord Chancellor in reply to the criticisms that I made of Clause 69 as it was and Clause 70 as it is, which contains a new Section 30A in the 1979 Act.
I deal first with the question of covering the matter by secondary legislation. It seems to me to be a matter of such importance that it should be in primary legislation. When we are enacting in a major manner, as we are now, for the future of the magistrates' courts and their functions, judicial and administrative, we should not leave such an important matter to be dealt with by secondary legislation.
When I asked the noble and learned Lord the Lord Chancellor to let me have his views, he said that the problem was that functions of a character that should be protected could be created by secondary legislation. He quoted legal aid as an example. I suggest to him that the operation of legal aid, which sadly requires adjustment from time to time, as we know only too well, can conceivably be left to secondary legislation, as Parliament has agreed. But here we are dealing with something that does not vary. We are dealing with the judicial independence of the justices' clerk when giving advice to the magistrates. I suggest that to leave that to be dealt with by reference to secondary legislation is not good enough.
My noble and learned friend sought to justify secondary legislation in a further way:
"Let us suppose that under the … Act the powers"—
I suggest that that word is not the operative one—
"of justices' clerks are extended in the future".—[Official Report, 17/3/90; col. 455.]
He said that the powers might be extended by secondary legislation and therefore their judicial independence should be covered by secondary legislation".
That was not what he said but it naturally followed from the defence that he made for using secondary legislation in this case. It may well be that the powers have to be changed from time to time, but whatever is done to change the powers cannot and should not affect the principle of judicial independence.
Having I hope disposed of the arguments which my noble and learned friend used at Report stage, perhaps I may come to what I regard as the excellent alternative that the noble and learned Lord, Lord Ackner, has put forward in Amendment No. 26. First, I point out that it is of general application. The clause as it stands in the Bill refers only to,
"exercising the functions specified in subsection (2) below"—
and that refers to secondary legislation which is not spelt out—
"or giving advice … in an individual case".
As the noble and learned Lord, Lord Ackner, has mentioned, to confine it to the giving of advice in an individual case is not enough. There are so many occasions when advice needs to be given to the justices covering a range of cases or a method of operating judicially. Therefore, it was not satisfactory for the clause as it appeared in the Bill to refer to the giving of advice in an individual case. The noble and learned Lord, Lord Ackner, has put it in a general way so that
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it can cover all circumstances, as well as a change of circumstances in future. I remind your Lordships of the proposal:
"A justices' clerk and any member of the staff of a magistrates' courts committee shall not be subject to the direction of the magistrates' courts committee, the justices' chief executive or any other person"—
these are the important words—
"when giving advice to justices of the peace on the exercise of their judicial functions or discretion".
Put generally, it covers any likely change of circumstances. I suggest to your Lordships that this is the way it should be done and is far better than the way it is put in the Bill at present.
Viscount Tenby: My Lords, I wish to speak to Amendment No. 26 standing in the name of my noble and learned friend Lord Ackner. The Bill has been exhaustively discussed during the past few weeks. It is clear that both parts have revolved around the constitutional implications of central influence—to the police service on the one hand and to the magistrates' courts on the other.
The amendment seeks to make crystal clear protection for the justices' clerk not only in the matter of the clerk's advice to his Bench in a particular case but over the whole spectrum of his activities, which are extensive both inside and outside the court. It seeks to avoid, for example, the possibility that the training of magistrates might become tainted by preoccupation with centrally imposed management objectives.
At this point I slightly part company with the previous two speakers, although I do not make too much of it. The divergence of view on the amendment is not as fundamental as on other aspects of the Bill. If I have assessed correctly the position of the noble and learned Lord the Lord Chancellor—if I have not, perhaps he will allow me to apologise—he believes that the safeguards incorporated in the Bill are sufficient. Others believe that there are still "its to be dotted and "its to be crossed.
It may be that training is the main sticking point and that some accommodation can be reached as regards that. If so, I should be happy to be a bridge over troubled waters in that context. It is certainly true that the responsibility to provide training is that of the magistrates' courts committee, but the responsibility is for it to take place and not to provide the content or, to use a modern phrase, to give a swing to it.
Of course, training is not confined to justices' clerks. In most areas magistrates also play some part, usually on a small scale and in an area in which they may have some expertise or specialism additional to the clerks' legal expertise. That is also true of any expert advice that can be brought in from outside on matters of a peripheral nature. I recall, for example, lectures that I attended on anger management or diet and its effect on criminal behaviour. But those topics, though germane to anyone involved in the legal system, are not judicial matters. The primacy of the clerks' influence is not threatened thereby. So the fact that participants other than the clerks play a role in training does not vitiate the

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point about the importance of their advice not being overridden in training when judicial matters are being discussed.
By this stage of the Bill noble Lords will agree that the facts and opinions relating to this amendment have been well aired. Accordingly, I do not propose to add to them. I say only that, speaking as a magistrate of some years' experience. it is difficult to overvalue the importance of one' s clerk to the successful running of the court. As lay people we were very vulnerable and some of us are very inexperienced. It is important, therefore, that we have complete confidence in our clerk and, above all, in the independence and impartiality of the advice that he is giving to us not only in court but in the hundred and one different ways in which we may come into contact with him.
Lord Campbell of Alloway: My Lords, I listened with the greatest care to my noble and learned friend Lord Ackner and my noble friend Lord Renton and I beg respectfully to differ. I believe that Clause 70 as it stands affords a sufficient safeguard for the independence of the justices' clerk. Indeed, it is much to be doubted whether on a short analysis, which I would like to make, the proposed Amendment No. 26 affords any greater safeguard.
One must take into account Clause 72 which, as regards the functions of the justices' clerk, incorporates the concepts of Section 28 of the Justices of the Peace Ad 1979. To save tame I shall not read it out. As regards the powers of the Lord Chancellor to give directions as to the exercise of those functions, the provisions of Section 144 of the Magistrates' Courts Act 1980 apply. In passing, the provisions of Section 8 define the subject matter.
The proposed amendment would remove totally Clause 70(2), but such exclusion would not affect the excellent regime under the Acts of 1979 and 1980. The amendment does not propose that there should be any amendment to Section 144 in any way to qualify the powers of the Lord Chancellor to give directions under that section. Paragraph (a) of this amendment appears on the face of it to subsume Section 28(3) of the Act of 1979 as regards functions, save perhaps as to training, to which the noble Viscount referred.
Paragraph (b) of Amendment No. 26 as regards functions appears to subsume Section 28(1) of the Act of 1979. I mention that subject to correction. However, it appears by inspection of Section 28 that the judicial functions are sufficiently clearly defined. It is most unlikely—
Lord Mottistone: My Lords, I am puzzled by my noble friend's reference to paragraphs (a) and (b) of Amendment No. 26. I do not see those in my Amendment No. 26 and I wonder whether he is talking about the same amendment.
Lord Campbell of Alloway: My Lords, I am grateful to my noble friend. was referring to a previous draft—
Lord Renton: Oh!
Lord Campbell of Alloway: My Lords, perhaps my noble friend Lord Renton will forgive me; we can all make mistakes. The substance is exactly the same.
Lord Mottistone: My Lords, that is not clear to us.
Lord Campbell of Alloway: My Lords, allow me to make it clear, if I may. Clause 1 is subsumed in Section 28(3) by inspection of the Act of 1979. Subsection (2) is again subsumed by Section 28(1) of the Act of 1979. Therefore, the point that I was seeking to make—and. 1 apologise to your Lordships for having made a mistake—is, in my view, totally valid because the judicial functions are sufficiently defined.
The directions of the Lord Chancellor under Section 144(4) of the 1980 Act as to the exercise of his functions by making rules and regulations and by prescribing procedure and practice are made by statutory' instrument, and are subject to annulment in either House of Parliament. Therefore, if the proposed rules were to derogate from the independence of the justices' clerk, surely they would be brought to the attention of Parliament, and the power of annulment in either House would afford an appropriate safeguard.
I shall listen with great respect to what is said; but subject to clarification, I cannot for the life of me see how any greater or more appropriate safeguard is afforded by this amendment than by the clause as it stands.
5.30 p.m.
Earl Russell: My Lords, throughout this Bill, the noble and learned Lord has been his usual courteous and painstaking self. And yet, if we compare the atmosphere in the House now with the atmosphere last Tuesday when dealing with amendments to the Education Bill, we can see that we have not yet achieved the meeting of minds that was so happily achieved then. 'We are very near it, but we have not quite reached that point.
There is still a difference because the noble and learned Lord on the Woolsack is riot particularly alarmed by any threat to any judicial independence created by the machinery of efficiency. Those of us who support the amendment are deeply alarmed by it. That is why we believe that the restriction in the Bill to individual cases is entirely inadequate. Whitehall does not think in individual cases; it thinks in categories.
If we are right, the amendment is vital. If the noble and learned Lord on the Woolsack is right, then the amendment may be nugatory, but it would not do any harm. In order to make a success of a settlement which is almost a success, I beg the noble and learned Lord to accept the amendment and let us leave the Bill in peace.
Lord McIntosh of Haringey: My Lords, the issues raised by the amendment have been debated in response to different amendments in Committee, on Report, and, indeed, at Second Reading. I shall not weary your Lordships with the full range of issues.
However, with the exception of the noble Lord, Lord Campbell of Alloway, who appeared still to be speaking to the wrong amendment, we believe that there are two problems with Clause 70 as it is drafted: the first is the problem to which the noble Lord, Lord Renton, attaches

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a great deal of importance—the issue of judicial functions being defined in secondary legislation rather than on the face of the Bill; the second difficulty, which I suggest is much more important, is the restriction of the independence provision as regards advice in an individual case.
As the noble and learned Lord, Lord Ackner, made extremely clear, it is easy for someone who wishes to give a direction who is in a position of authority to do that other than in an individual case. At the end of a day's sitting he can say, "Well, of course, I am not going to refer to any individual case; but if you look at what has happened today, it is clear that you should be doing a, b, c and d". That will form a direction to a justices' clerk and will go against what I believe to be the Lord Chancellor's earnest intention in the drafting of Clause 70. Unfortunately, that earnest intention is not achieved.
I wish to point out the modesty of the changes proposed in Amendment No. 26. The amendment still refers only to:
"the direction of the magistrates' courts committee, the justices' chief executive or any other person".
There is no suggestion that people should not talk to the justices' clerk and say, "Well, you know, in my opinion we are going down the wrong road", or, "We are doing something wrong". The restriction is confined to a direction from somebody in authority.
The amendment still refers only to:
"advice to justices of the peace on the exercise of their judicial functions or discretion".
It is no wider than that. Therefore, I believe that the noble Earl, Lord Russell, is right to suggest to the Lord Chancellor that there is nothing that he need be afraid of in this amendment. It introduces no new principle other than to ensure that the provision of independence, which I am sure is intended but not achieved in Clause 70 as drafted, shall really be achieved. If the noble and learned Lord the Lord Chancellor is able to agree to this amendment, we shall leave the Bill with a great deal more happiness than would otherwise be the case.
Lord Mottistone: My Lords, I support what the noble Lord, Lord McIntosh, said. It seems to me that the noble and learned Lord, Lord Ackner, has gone a long way towards taking into account all that was said by my noble and learned friend the Lord Chancellor. He has modified and described succinctly what we all, including my noble and learned friend, want to achieve in this Bill.
The amendment has the enormous advantages of brevity and of not referring to other legislation in an obscure way which is, in effect, secondary legislation that cannot be before the people who read the Bill. Therefore, I hope that my noble and learned friend will be able to accept this as a very worthwhile alternative to Clause 70.
Lord Peyton of Yeovil: My Lords, I have one short question to address to my noble and learned friend. Would not the amendment proposed by the noble and learned Lord, Lord Ackner, fit better and lend support to
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the amendment which my noble and learned friend has already accepted in connection with the change of nomenclature of what was the chief justices' clerk?
The Lord Chancellor: My Lords, if I thought that the amendment did no harm, while receiving a great deal of support from your Lordships, I should be content to accept it. But that is not the position as I see it, and I shall try to explain why.
The provision in the Bill was not included without a good deal of consideration. Its focus is the protection of the advice of a justices' clerk to his bench in a particular case. That is the essential function of the justices' clerk.
My noble and learned friend Lord Ackner read from the speech of my noble and learned friend the Lord Chief Justice. I make no apology for reading it again because I wish to emphasise a passage in it to which my noble and learned friend referred. He said:
"The first category of judicial functions to which I refer is the provision by justices' clerks of advice to the bench on what the law is and how it should be applied to the facts of a particular case"—[Official Report, 18/1/94; col. 475.]
He did not use the word "individual", but the concept is the same—"the facts of a particular case". That is the core function of the justices' clerk and that function must be protected from any kind of direction to the justices' clerk. That is what is enshrined in the existing Clause 70.
Of course, the noble Earl, Lord Russell, said that Whitehall —and I am glad to think that the Lord. Chancellor is not yet in Whitehall—is keen on general rules. However, the point is that the protection must be looked at from the point of view of the justices' clerk. It does not matter how many rules are promulgated from Whitehall or, for that matter, from the Lord Chancellor's room in the Palace of Westminster. Those do not affect, as directions, the justices' clerk in his advice to his bench on any particular case. Whitehall may send out reams of instructions, but in relation to any particular case, the justices' clerk is completely free from the effect of any such direction.
That is extremely important. If one does not examine the matter in great detail, it is easy to see that there is not much difference between Amendment No. 26 and the principles which I seek to effect; but there are important differences. My noble and learned friend Lord Ackner has taken the example of training. I believe that that example illustrates the difficulty of his amendment. The relationship which is so fundamental in our system is that between the justices' clerk and his or her own bench. The amendment reads:
"A justices' clerk and any member of the staff of a magistrates' courts committee shall not be subject to the direction of the magistrates' courts committee, the justices' chief executive or any other person when giving advice to justices of the peace on the exercise of their judicial functions".
The noble Viscount, Lord Tenby, mentioned the arrangements for training. One of the things that happens in training is that justices' clerks give advice to a large number of justices; indeed, economy sometimes suggests that that is a good idea. Therefore, the justices' clerk of, say, petty sessional division A may be giving advice to justices of divisions B, C, D and E.
Let us assume that the justices' clerk from petty sessional division A has given advice in a training

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session to justices from division B. When they come to decide on a particular case, they must have regard only to the advice that their justices' clerk gives them. In the nature of things, that is part of the independence and that advice may well be different. Therefore, the amendment carries with it a terrific confusion between the relationship of a justices' clerk to his individual bench and the totality of justices of the peace.
However, the issue goes a good deal further. Again, the amendment says:
"A justices' clerk and any member of the staff of a magistrates' courts committee shall not be subject to the direction of the magistrates' courts committee, the justices' chief executive or any other person when giving advice to justices of the peace on the exercise of their judicial functions or discretion".
All noble Lords who are familiar with the magistrates' courts will know that there are far more courts than there are justices' clerks. In fact, most courts are serviced by court clerks who are under the responsibility of the justices' clerk. The amendment is saying that every court clerk can give such advice without the direction of his justices' clerk, because the court staff are immune from direction by the justices' clerk in relation to the "particular case". That is a recipe for confusion. People sometimes complain about the variation between one justices' clerk and another. That is understandable. They have their independent views on the law and, perhaps, on practice. However, when it comes to a court clerk—that is, a member of the staff of the magistrates' courts committee—giving advice, surely he must be subject to the directions of the justices' clerk. I am sure that all noble Lords who have experience on the bench will agree with me. The amendment would cut out that process.
I have one further point to make. Under Section 144 of the Magistrates' Courts Act 1980, functions are devolved not only to justices' clerks but also to members of their staff; for example, court clerks. The amendment proposed by my noble and learned friend Lord Ackner would not give any kind of protection to a member of staff performing one of those devolved functions because, as your Lordships will notice, members of staff are not mentioned in subsection (2). It is vitally important to focus on the fact that what has to be protected is the advice given by the justices' clerk to his bench in relation to a particular case. No amount of directions or anything of a general kind can affect the situation. So long as it is protected, it is effective protection and protection only as far as it is properly necessary to go. If one tries to go further, one will get into the kind of confusion to which I have sought to draw your Lordships' attention.
Perhaps I may say a few words about the problem of my noble friend Lord Renton. He drew attention to the reference to subordinate legislation in Clause 70(2). However, the functions referred to there are those conferred under Section 144 of the Magistrates' Courts Act 1980. That is a statutory power in primary legislation to allow justices' clerks and their staff in certain circumstances to perform functions which I believe should be protected. I believe that functions devolved under that section should be protected. The provision protecting them is not in the subordinate
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legislation; it is contained in the primary legislation now before us if the clause is enacted. I see that my noble friend Lord Renton wishes to intervene. I give way.
5.45 p.m.
Lord Renton: My Lords, I am much obliged. Subsection (2) of the clause reads:
"The functions referred to in subsection (1) above are functions conferred by rules made in accordance with section 144 of Magistrates' Courts Act 1980".
Therefore, it would be secondary legislation which governs the matter and not the provisions of Section 144.
The Lord Chancellor: My Lords, that is a misunderstanding. I entirely agree and accept that the function is conferred by rules of subordinate legislation under Section 144. It is a fact. Section 144 gives such powers. However, the protection when exercising such powers is not given under the subordinate legislation: the protection is given by the legislation now before us. That refers to exercising the functions specified. I agree that the specified functions come from the subordinate legislation. Indeed, that is the only way you can tell what are the specified functions. But the protection given when doing so is provided by the primary legislation. For example, subsection (1) refers to,
"exercising the functions specified in subsection (2) below",
and the protection is there specified; to put it shortly,. immunity from direction as to how such functions should be exercised. There is no difficulty in that respect. The protection is given in the primary legislation.
I believe that the clause that I have put forward is one which focuses on the essential provision involved. Indeed, I should point out that it is the principle which underlies the remit of the Home Affairs Select Committee in relation to the Lord Chancellor's Department and the Law Officers' departments. It focuses on the essential protection and does so in a way which I believe avoids confusion. If one travels along the sort of road suggested by the amendment, one gets into a very confused state. It would confuse and obfuscate one of the essential characteristics of our system; namely, the relationship between the justices' clerk and his bench, which is at the very centre of the whole issue. Therefore, to seek to introduce some sort of protection which goes beyond that is, in my submission, wrong.
Before I sit down, I should remind your Lordships that the training function is conferred on the magistrates' courts committee. As the noble Viscount, Lord Tenby, pointed out, it is important to note that it means that anyone whom the committee thinks proper can be used to instruct magistrates or justices of the peace in the training programme. The important provisions of Clause 63 enable the magistrates' courts committee to provide a scheme of training and ensure that it happens. The consequence of that is that the magistrates' courts committee can choose whom it wants to do the training. I would have thought it would wish to direct that if a justices' clerk gave directions to

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magistrates other than his own, he or she would have to make it clear that that was subject to the views of their own justices' clerk in relation to a particular case.
My noble and learned friend the Lord Chief Justice in indicating what was essential referred to the need to protect the advice in a particular case. That does not use the same phrase but it conveys the same idea as does our clause. That protection is given. I invite your Lordships not to approve this amendment which, in my submission, has the dramatic effect of causing confusion, as I have indicated. The most important matter here is that the court clerk would not be subject to direction.
Lord Ackner: My Lords, I shall deal first of all with my noble and learned friend's reference to the training function and the responsibility of the magistrates' courts committee. I must say with deep respect that that is wide of the mark. My amendment refers throughout to advice. The magistrates' courts committee does not give advice in the course of training. The magistrates' courts committee arranges for the training to take place and no doubt requests various people to take part in it. But the magistrates' courts committee is not giving advice and my amendment is throughout directed to the justices' clerk performing one function and one function only, which is advising. That is clearly set out in the amendment.
One of the circumstances in which he may advise is in training. In other circumstances it may be in a legal forum and in other circumstances it might be entirely in unofficial circumstances. However, throughout everything it is the advice, and the advice on a particular subject matter, which is the exercise of judicial functions or discretion. If he is not to have protection from interference when he is advising on judicial functions or discretion, the protection which he is being given by this part of the Bill is illusory. What it means is that interference in every area of the advice given by a justices' clerk is permissible save when he is giving advice in relation to a particular case. That just cannot be right.
My noble and learned friend has mentioned confusion. I would not use a word of that kind when directed to him, but perhaps I may say that those who are advising him are confused in this respect. They are treating the magistrate as a member of the jury and his clerk as a judge. A judge advises the jury. But the judge advises the jury in regard to a particular trial, or occasionally two or three trials. That is not the relationship between a magistrates' clerk and a magistrate. He is the continual legal adviser to the justices. He is there at all appropriate times to give advice on cases that are about to occur, cases that are occurring and cases that have already occurred as regards general principles and the rules of natural justice. That is the relationship which my noble and learned friend, in my respectful submission, totally overlooks. He is taking an individual case as if the justice was a member of a jury and he is taking the clerk as the judge who, when he sums up, directs the jury as to what the law is.
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That is only a narrow feature, factor and activity of a justices' clerk. To restrict the protection to that is, in my view, not only wrong but the consequence is that, if that is all that is given by statute, one has taken away from him, through this statutory device, that which he has—I am sure—hitherto thought he had; namely, that if some official from Whitehall or from the Lord Chancellor's Department said to a magistrates' clerk, "In future, this is how you advise your magistrates on a particular judicial function or discretion", he would no doubt receive a polite but a pretty firm response.
Now, if this Bill goes through, the official from Whitehall, or from here, would be able to say, "You have not read Section 70. I am not advising you or directing you or seeking to persuade you how to advise the magistrates in the exercise of their judicial function or discretion in regard to a particular case. I am being very careful. I am advising you on the generality of things. This is the course I want you to take in order to increase the throughput which is the major consideration of the Treasury. This is the course which I wish you to take in order to reduce the cost per case. Do not worry about justice. We cannot measure justice so we can avoid thinking about it". That is what can happen in future. It cannot happen now.
My noble and learned friend tells me that I am making things worse, but it is perfectly clear that this piece of legislation makes things worse and that the justices' clerk is better off with none of the protection offered by the Government if this is the protection which he is to be provided with because it will cut down that which he has now. He will have a statutory protection infinitely less than he now enjoys and for that reason I persist—
Lord Renton: My Lords, I wonder whether the noble and learned Lord will give way? There is a very important point here. The noble and learned Lord the Lord Chancellor—
Viscount Ullswater: My Lords, this is Third Reading. My noble friend cannot speak unless he asks a question.
Lord Renton: My Lords, I understood that the noble and learned Lord had given way and that it is in order for me to ask him to do so. This is an important point. The noble and learned Lord the Lord Chancellor pointed out that the amendment as it stands, and which I have supported so far, does not cover advice given by court clerks. That would be easily dealt with by a manuscript amendment inserting in the second line of subsection (1):
"After the word 'committee' insert the words 'or of a magistrates' court—.
5.58 p.m.
On Question, Whether the said amendment (No. 26) shall be agreed to?
Their Lordships divided: Contents, 99; Not-Contents, 116.

Division No.2

CONTENTS

Ackner, L.

Kilbracken, L.

Addington, L.

Lester of Herne Hill, L.

Airedale, L.

Listowel, E.

Allen of Abbeydale, L.

Lockwood, B.

Ashley of Stoke, L.

Longford, E.

Attlee. E. [Teller.]

Lovell-Davis, L.

Barnett, L.

Mallalieu, B.

Beaumont of Whitley, L.

Mayhew, L.

Boston of Faversham, L.

McIntosh of Haringey, L.

Bottomley, L.

McNair, L.

Brightman, L. [Teller.]

Mellish, L.

Bruce of Donington, L.

Merlyn-Rees, L.

Campbell of Eskan, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Mishcon, L.

Castle of Blackburn, B.

Molloy, L.

Cledwyn of Penrhos, L.

Moms of Castle Morris, L.

Clinton-Davis, L.

Murray of Epping Forest, L.

Cocks of Hartcliffe, L.

Nicol, B.

Craigavon, V.

Northfield, L.

Croham, L.

O'Cathain, B.

Donoughue, L.

Oliver of Aylmerton, L.

Dormand of Easington, L.

Peston, L.

Falkland, V.

Pitt of Hampstead, L.

Fisher of Rednal, B.

Prys-Davies, L.

Foot, L.

Richard, L.

Gainsborough, E.

Rochester, L.

Gallacher, L.

Rodgers of Quarry Bank, L.

Geraint, L.

Russell, E.

Graham of Edmonton, L.

Seear, B.

Grantchester, L.

Sefton of Garston, L.

Greene of Harrow Weald, L.

Serota, B.

Hamwee, B.

Shannon, E.

Hanworth, V.

Shaughnessy, L.

Harris of Greenwich, L.

Simon of Glaisdale, L.

Harrow by, E.

Slynn of Hadley, L.

Haskel, L.

Stoddart of Swindon, L.

Hayter, L

Strabolgi, L.

Healey. L.

Tenby, V.

Henderson of Brompton, L.

Thurlow, L.

Hilton of Eggardon, B.

Tordoff, L.

Hollis of Heigham, B.

Trevor, L.

Holme of Cheltenham, L.

Turner of Camden, B.

Howie of Troon, L.

Weatherill, L.

Hylton-Foster, B.

Wharton, B.

Irvine of Lairg, L.

White, B.

Jay of Paddington, B.

Wigoder, L.

Jeger, B.

Wilberforce, L.

Jenkins of Hillhead, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Williams of Mostyn, L.

Judd, L.

NOT-CONTENTS

Addison, V.

Colwyn, L.

Annaly, L.

Courtown, E.

Archer of Weston-Super-Mare, L.

Cox, B.

Arran, E.

Cranborne, V.

Astor of Hever, L.

Crickhowell, L.

Astor, V.

Cullen of Ashboume, L.

Balfour, E.

Cumberlege, B.

Barber, L.

Davidson, V.

Bethell, L.

Denham, L.

Blatch, B.

Derwent, L.

Boyd-Carpenter, L.

Dixon-Smith, L.

Brabazon of Tara, L.

Dormer, L.

Brougham and Vaux, L.

Downshire, M.

Burnham, L.

Eden of Winton, L.

Butterworth, L.

Elles, B.

Cadman, L.

Elliott of Morpeth, L.

Campbell of Alloway, L.

Elton, L.

Campbell of Croy, L.

Ferrers, E.

Carnegy of Lour, B.

Flather, B.

Carr of Hadley, L.

Fraser of Carmyllie, L.

Chalker of Wallasey, B.

Fraser of Kilmorack, L.

Chelmsford, V.

Gardner of Parkes, B.

Clanwilliam, E.

Geddes, L.

Clark of Kempston, L.

Gisborough, L.

Colnbrook, L.

Goschen, V.

782

Gowrie, E.

Orr-Ewing, L.

Hailsham of Saint Marylebone, L.

Oxfuird, V.

Harlech, L.

Pearson of Rannoch, L.

Harmsworth, L.

Peyton of Yeovil, L.

Hayhoe, L.

Pike, B.

Henley, L.

Platt of Writtle, B.

HoImPatrick, L.

Rankeillour, L.

Howe, E.

Reay, L.

Kenilworth, L.

Rennell, L.

Kenyon, L.

Rodger of Earlsferry, L.

Killearn, L.

Romney, E.

Kinnoull, E.

Sainsbury of Preston Candover, L.

Knutsford, V.

Saltoun of Abernethy, Ly

Sandford, L.

Lindsey and Abingdon, E.

Sharples, B.

Long, V.

Skelmersdale, L.

Lucas, L.

Skidelsky, L.

Lyell, L.

St. Davids, V.

Mackay of Clashfem, L. [Lord Chancellor.]

Stewartby, L.

Macleod of Borve, B.

Strathcarron, L.

Marlesford, L.

Strathclyde, L.

Merrivale, L.

Strathcona and Mount Royal, L.

Mersey, V.

Strathmore and Ktnghome, E. [Teller.]

Milverton, L.

Sudeley, L.

Mottistone, L.

Suffield, L.

Mountevans, L.

Swansea, L.

Mowbray and Stourton, L.

Swinfen, L.

Moyne, L.

Teynham, L.

Munster, E.

Thomas of Gwydir, L.

Murton of Lindisfarne, L.

Trumpington, B.

Napier and Ettrick, L

Ullswater, V. [Teller.]

Newall, L.

Vivian, L.

Norrie, L.

Wakeham, L. [Lord Privy Seal.]

Oppenheim-Barnes, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.6 p.m.
clause 72 [Organisation of justices' clerks in inner London area]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 39, line 28, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, this is another amendment which is consequential on Amendment No. 8. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 28:
Page 39, line 36, at end insert:
("(3A) Any person who, immediately before the commencement of subsection (1) above, holds office as a senior deputy chief clerk or deputy chief clerk for the inner London area shall be taken to have been appointed by the magistrates' courts committee for the inner London area to act as deputy to a justices' clerk.").
The noble and learned Lord said: My Lords, I tendered the amendment in order to deal with a situation with regard to certain officers of the magistrates' courts service in inner London. The purpose of the amendment is to preserve rights of appeal which otherwise might be thought to have been removed under the Bill.
I had intended to deal with these matters under the transitional provisions—and that could have been done —but the noble Earl, Lord Russell, raised the question and I thought that it would be right to deal with it on the face of the Bill. I hope that the amendment meets the noble Earl's anxieties. However, I have the impression from what he kindly told me a short while ago that there may be some doubt about that. If that is so, if the noble Earl agrees, I should like to move the amendment and have it agreed to and then see whether further

783
adjustments may be necessary in the light of the detailed background circumstances which lie behind this particular problem. I beg to move.
Earl Russell: My Lords, I should like to thank the noble and learned Lord very warmly for the amendment.
I received instructions on it only about five minutes ago while the noble and learned Lord was winding up in reply to the previous amendment.
I must take sole responsibility for the confusion. The noble and learned Lord has been working in haste since, misguidedly because of confusion, I only tabled the amendment for the first time at Report stage. My understanding is that it is not quite right yet since it lumps together senior deputy chief clerks and deputy chief clerks, which are two categories of office and not, as I understand, suitably put together in one amendment.
However, in the light of the noble and learned Lord's promise to consider the matter further in another place, and in the light of his great generosity in doing what he has done already and his patent desire to get it right, I am happy, as he suggests, to agree to the amendment as it stands on a provisional basis. I should like to thank him very much.
The Lord Chancellor: My Lords, I am very grateful to the noble Earl. He has kindly shown me the instructions which he received. From a quick reading of those instructions while trying to attend to some other business, I believe that the point that has been taken may not be particularly strong. Although we have placed the senior deputy chief clerk and the deputy chief clerk together for the purposes of the provisions, it is for the purposes of procedure. We are not saying that they are the same office. It may be that there is a misunderstanding. I hope that it turns out to be so. However, if it is a point with which we need to deal further, I am happy to do so. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 29 to 31:
Page 39, line 37, at beginning insert ("Except as provided by subsection (4A) below or by subsections (4) to (6) of section 25 of the 1979 Act").
Page 39, line 37, leave out ("or (3)") and insert ("(3) or (3A)").
Page 39, line 41, at end insert:
("(4A) So long as a person to whom subsection (3A) above applies holds the appointment to which he is taken by that subsection to have been appointed, he shall not be dismissed by the magistrates' courts committee without the approval of the Lord Chancellor; and before approving the dismissal of any such person the Lord Chancellor shall consider any representations made by him.").
The noble and learned Lord said: My Lords, Amendments Nos. 29 to 31 are consequential on Amendment No. 27. With leave I should like to move the amendments en bloc
On Question, amendments agreed to.
clause 74 [Administrative and financial arrangements for magistrates' courts]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 32 to 35:
Page 41, line 13, leave out ("chief justices' clerk") and insert ("justices' chief executive").
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Page 42, line 9, leave out ("chief justices' clerk") and insert ("justices' chief executive").
Page 42, line 40, leave out ("chief justices' clerk") and insert (` justices' chief executive").
Page 43, line 19, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, these amendments are consequential on Amendment No. 28. I beg to move the amendments en bloc.
On Question, amendments agreed to.
clause 78 [Powers of inspectors]:
Lord Ackner Lord Ackner moved Amendment No. 36:
Page 44, line 42, at end insert ("and
(c) to comment on or seek to influence the exercise of a judicial function or discretion.").
The noble and learned Lord said: My Lords, Clause 78 deals with the powers of inspectors. As we all know, inspectors are servants of the Lord Chancellor's Department. Clause 78 (2) states that,
"Subsection (1) … does not entitle an inspector—

(a) to be present when a magistrates' court is hearing proceedings in private, or

(b) to attend any private deliberations of the justices of the peace".

At Committee and Report stages the noble Lord, Lord Mottistone, and I put forward an additional subparagraph which inserted the words,
"to attend any meeting of the magistrates' courts committee unless invited by the chairman".
As I indicated, the amendment was repeated at Report stage. However, my noble and learned friend the Lord Chancellor resisted it.
At Committee and Report stages there was also included the provision which I have set out in this amendment. It adds another exclusion in regard to the inspectors' entitlement. The exclusion is,
"to comment on or seek to influence the exercise of a judicial function or discretion".
My understanding until Report stage was that the answer to the previous amendment was, "It really goes without saying. Why burden the Bill with the obvious?" However, my noble friend Lord Mottistone and I thought it sometimes desirable to set out the obvious because it saves argument thereafter.
When I moved the amendment on Report on 17th March, I found to my surprise that the answer was not, "This goes without saying. Why burden the Bill?", but to the contrary. At col. 463 of the Official Report my noble and learned friend stated:
"We all know that justice delayed is justice denied. The management of the justice system is therefore extremely important as regards whether or not the system is delivering justice. My submission to your Lordships is that to include paragraph (d)"—
which is identical to the provision that I seek to put into the Bill now—
"in its present form might improperly limit what the inspectorate is there to do, which is of course to inspect the administration of the system which is aimed at delivering justice. Accordingly I would invite your Lordships not to agree to this amendment and to leave matters as they are in the Bill".
As I understood what the noble and learned Lord said, he was stating in terms, "My inspector is entitled to say to any justice of the peace, 'This is how you should exercise your judicial function or discretion, either in regard to a case that is about to start'"—that hallowed territory to which Clause 70 was meant to be solely applicable—or in general, tomorrow, in the

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future.'" That struck me as being so strange that, since the hour was late and we were not given our time off to dine as had been previously indicated, a subsequent intake of protein might make it easier to focus upon the point.
In a nutshell, it seems astonishing if it is to be suggested that an employee of the Lord Chancellor's Department—that i s, an employee of the Executive—should be entitled to go to any magistrate and seek to comment on, or influence the exercise of, a judicial function or discretion. Accordingly, I beg to move.
Lord Mottistone: My Lords, I support the amendment. I, too, thought that my noble and learned friend was going to object to an earlier version. He might have said that Clause 70, which we have just debated, covers the same area. However, to suggest that it is right for the inspectorate to do those things which Amendment No. 36 provides that they should not do seems quite wrong. I believe that we should include the provision in the Bill.
6.15 p.m.
The Lord Chancellor: My Lords, I am sorry if I could have given a better answer at Report stage.
Lord Mottistone: I had not finished. I have more to say. I had thought that my noble and learned friend sought to correct me.
The Lord Chancellor: Not at all.
Lord Mottistone: If my noble and learned friend will forgive my continuing, when I proposed that the inspectorate should not be allowed to attend magistrates' courts committee meetings, he suggested that if that were so it would be because the magistrates' courts committee would have something to hide. As the noble and learned Lord, Lord Ackner, said, the hour was getting, late and I did not at once jump to my feet. However, I thought the answer was unreasonable. I hope that my noble and learned friend did not mean it seriously. If a magistrates' courts committee does not want the inspectorate to attend its meetings, it will not be because it has something to hide but because the inspectorate has not gained its confidence. In many earlier amendments I made the point strongly that the inspectorate must be so constituted, and must present itself in such a way, as to have the confidence of the magistrates' courts committee or it will not serve my noble and learned friend in the way that he would like.
I had to add that point to the record because the suggestion that a magistrates' courts committee would have something to hide in keeping out inspectors is monstrous.
Lord Campbell of Alloway: My Lords, I wish to support the amendment. In certain circumstances such a provision could pre vent a most undesirable situation arising. It does no harm on the face of the Bill; and it would afford a certain safeguard against an undesirable situation arising. One knows what happens with inspectors who vis' t recorders' courts. They make various reports and do not always behave totally as one would wish. The inspector in this case should have it
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made totally plain, as the amendment proposes, that he must not "comment on"—it is that which in practice may be far more important—
"or seek to influence the exercise of a judicial … discretion".
It is the "comment on" a judicial discretion which is of great importance although the whole clause is worthy of my noble and learned friend's attention.
Lord Mishcon: My Lords, if the amendment were to deal with discretion—which was the emphasis the noble Lord, Lord Campbell, just put on the matter—many of us would be happy. I find some difficulty if the inspector is stopped from any comment on a judicial function. A judicial function can involve when or how the court sits and similar matters and I wonder whether the amendment would have been better worded if the words "function or" had been left out.
The Lord Chancellor: My Lords, first, I do not accept the proposition that whatever is not prohibited by the amendment is allowed. That was the suggestion of my noble and learned friend Lord Ackner. I do not suggest, and never have suggested, that some of the examples he gave would be appropriate. However, the magistrates' courts inspectorate is set up to report on the organisation and administration of the magistrates' courts. The whole purpose and the only purpose of the magistrates' courts is to perform judicial functions, the whole thing is a judicial function from start to finish. The purpose of the magistrates' courts inspectorate is to. try to help promote the efficiency and public acceptability of the organisation and administration of the magistrates' courts. That is what I sought to say, no doubt inelegantly and in a rather confused manner, on Report. The whole purpose of the organisation is the delivery of justice. Surely we must not allow ourselves to forget that.
For example, if there were inordinate delays in a magistrates' court and arrangements could be made to get rid of them, it would be appropriate that the magistrates' courts inspectorate should indicate what organisational or administrative arrangements might tend to reduce that delay. The reduction of clelay would influence the performance of the judicial function in the sense that, unless it is done reasonably quickly, to some extent it is a denial of justice. That is the reasoning I sought to explain at Report stage. I remain of the view that it would be quite inappropriate for the magistrates' courts inspectorate to discuss an individual case or something similar, but it would be perfectly in order for it to say that the arrangements in a particular court were such that people were having to wait 10 or 12 weeks when it could have been much less—say, four or six weeks. It could say that the reason was that there were inadequate administrative arrangements between the court and the CPS or the court and defence lawyers generally, or all three together, which had that result. That is closely related to the judicial function, but I regard the matter as regulated by the terms of reference of the inspectorate in Clause 77:
"to … report … on the organisation and administration of magistrates' courts".
With regard to the point that the noble Lord, Lord Mottistone, made on another amendment, I illustrated a

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possible difficulty with an example. I fervently hoped that it would never arise, and I predicated my remarks on the assumption that the magistrates' courts inspectorate had gained respect, as I hope it will. All the discussions on the Bill between my noble friend Lord Mottistone and myself, particularly on that aspect, were predicated on that assumption. I am talking about an amendment not on the Marshalled List and therefore I am not strictly in order, I am just trying to satisfy my noble friend, which is something I always try to do if I can. The situation is that, if one were to put such an amendment on the face of the Bill, it would signal a lack of confidence in the magistrates' courts inspectorate from the start. Therefore, for the reasons I have given, I invite your Lordships not to accept the amendment.
Lord Ackner: My Lords, I have made this point before, apparently unsuccessfully. If one looks at the position with the professional judiciary, as a result of the Beeching Commission there is a vast administrative staff dealing with administrative matters. The judges deal with the judicial functions, the administrators deal with the administrative matters. They ensure that adequate courts are available, that the staff are there, and that the place is clean and lit, as best they can within cash limits. They do not seek in any way to influence the exercise of a judicial function or discretion. If they sought to do so, the professional judge would firmly and, no doubt, courteously indicate that they should return to their administrative activities.
With justices, the word "vulnerable" has already been used by the noble Viscount, Lord Tenby, and their position is difficult. They are not in a position to draw the line and say: "You are trespassing on my preserves". To say that to an inspector would be a great deal harder than saying it to some other lesser official. That is why it is important that the justices should know that the inspector who is there to facilitate the administration—everyone accepts that—is not concerned in the exercise of a judicial function or discretion. That interference is the very activity from which Clause 70 purports to protect the magistrates' clerk. If the magistrates' clerk is entitled to protection from interference on that view, then in my respectful submission so are the justices. As there seems to be room for changing views on the subject, the matter ought to be established quite clearly. As the hour is not particularly late, I ask that the House express its opinion. I commend the amendment.
6.27 p.m.
On Question, Whether the said amendment (No. 36) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 101.

Division No.3

CONTENTS

Ackner, L.

Craigavon, V.

Airedale, L.

Donoughue, L.

Attlee, E. [Teller.]

Dormand of Easington, L.

Beaumont of Whitley, L.

Geraint, L.

Brightman, L.

Graham of Edmonton, L.

Carmichael of Kelvingrove, L.

Halsbury, E.

Clinton-Davis, L.

Hamwee, B.

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Harris of Greenwich, L.

Pitt of Hampstead, L.

Harrowby, E.

Richard, L.

Haskel, L.

Rochester, L.

Hilton of Eggardon, B.

Russell, E.

Howie of Troon, L.

Seear, B.

Irvine of Lairg, L.

Simon of Glaisdale, L.

Jeger, B.

St. John of Bletso, L.

Jenkins of Putney, L.

Stoddart of Swindon, L.

Judd, L.

Tenby, V. [Teller.]

Kilbracken, L.

Tordoff, L.

Lester of Herne Hill, L.

Turner of Camden, B.

Listowel, E.

Weatherill, L.

McIntosh of Haringey, L.

Wharton, B.

McNair, L.

White, B.

Nicol, B.

Williams of Elvel, L.

Oliver of Aylmerton, L.

NOT-CONTENTS

Addison, V.

Howe, E.

Annaly, L.

Knutsford, V.

Arran, E.

Lindsey and Abingdon, E.

Astor of Hever, L.

Liverpool, E.

Astor, V.

Long, V.

Balfour, E.

Lyell, L.

Bethell, L.

Mackay of Clashfern, L.[Lord Chancellor.]

Blatch, B.

Macleod of Borve, B.

Boyd-Carpenter, L.

Marlesford, L.

Braine of Wheatley, L.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Burnham, L.

Milverton, L.

Cadman, L.

Mottistone, L.

Campbell of Alloway, L.

Mountevans, L.

Campbell of Croy, L.

Mowbray and Stourton, L.

Carnegy of Lour, B.

Moyne, L.

Carr of Hadley, L.

Munster, E.

Chalker of Wallasey, B.

Murton of Lindisfarne, L.

Chelmsford, V.

Napier and Ettrick, L.

Clanwilliam, E.

Newall, L.

Clark of Kempston, L.

Nome, L.

Colwyn, L.

Orkney, E.

Cork and Orrery, E.

Oxfuird, V.

Courtown, E.

Pearson of Rannoch, L.

Cox, B.

Peel, E.

Cranborne, V.

Pike, B.

Crickhowell, L.

Platt of Writtle, B.

Cumberlege, B.

Rankeillour, L.

Denham, L.

Reay, L.

Dixon-Smith, L.

Rennell, L.

Dormer, L.

Renton, L.

Downshire, M.

Rodger of Earlsferry, L.

Eccles of Moulton, B.

Romney, E.

Elles, B.

Saltoun of Abernethy, Ly.

Elliott of Morpeth, L.

Sharpies, B.

Ferrets, E.

Skelmersdale, L.

Rather, B.

Skidelsky, L.

Fraser of Carmyllie, L.

St. Davids, V.

Fraser of Kilmorack, L.

Stewartby, L.

Gardner of Parkes, B.

Strathcarron, L.

Geddes, L.

Strathclyde, L.

Gisborough, L.

Strathcona and Mount Royal, L.

Goschen, V.

Strathmore and Kinghome, E. [Teller.]

Hacking, L.

Sudeley, L.

Hailsham of Saint Marylebone, L.

Suffield, L.

Hardinge, V.

Trumpington, B.

Harlech, L.

Ullswater, V. [Teller.]

Harmsworth, L.

Vivian, L.

Hayhoe, L.

Wakeham, L. [Lord Privy Seal.]

Henley, L.

HolmPatrick, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.35 p.m.
Schedule 2 [Schedule to be inserted in Police Act 1964: police authorities]:
Earl Ferrers Earl Ferrers moved Amendment No. 37:
Page 53, line 41, leave out ("period") and insert ("term").
The noble Earl said: My Lords, I beg to move Amendment No. 37 and to speak to Amendments Nos. 38 and 39 at the same time. These are minor technical amendments. I am indebted to the noble Lord, Lord Mishcon, who raised queries with me which drew our attention to the need for the amendments.
In dealing with the term of office of members of police authorities, Schedule 2 uses the word "term", but in three places it refers to "period". Although there is little risk of ambiguity, we have concluded that it would be tidier to use the same word, given that no difference in sense is intended. These amendments therefore substitute a reference to a "term" of office in the three places where the Bill at present refers to "period". I beg to move.
Lord Mishcon: My Lords, the noble Earl is, as always, gracious.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 38 and 39:
Page 53, line 44, leave out ("period") and insert ("term").
Page 55, line 34, leave out ("period") and insert ("term").
The noble Earl said: My Lords, I beg to move these amendments en bloc.
On Question, amendments agreed to.
Schedule 3 [Schedule to be inserted in Police Act 1964: appeals tribunals]:
Lord Bethell Lord Bethell moved Amendment No. 40:
Page 58, leave out lines 15 and 16 and insert:
("(b) one shall be a person chosen from a list maintained by the Secretary of State of persons who have retired from the police service as chief officers of police within the previous five years.").
The noble Lord said: My Lords, with the leave of the House, I shall also speak to Amendment No. 41.
This amendment is one of a series of points that I have raised during the passage of this Bill on matters of police discipline. In putting those points, I have taken the advice of the Police Federation. In that, I declare my interest. I have taken the federation's advice and I have given it advice. In making this statement, I have had representations from the Police Federation, which consists of ranks in the police force up to and including the rank of inspector.
I am worried that the present situation whereby a police appeal tribunal consists of a qualified lawyer, a chief police officer and a staff representative may be varied by the exclusion of the staff representative. There is a presumption in natural fairness (I know that this is not a matter of law) that a tribunal should not be overloaded or over-weighted. The proposal in the schedule of the Bill is too much weighted towards management. One might say that it is management dominated. The text as it stands suggests that the members of the tribunal should consist of a qualified lawyer, a member of a police authority and a present or recent chief police officer. That is to the exclusion of a
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staff representative which, by regulation though not by statute, is the way in which the tribunal is constituted at the moment.
During the discussions, an analogy was drawn with industrial tribunals. That is an analogy which I know my noble friend the Minister is reluctant to accept. He indicated that an industrial tribunal has to decide merely whether the person charged has been unfairly treated; whereas a police appeal tribunal has to decide whether the accused person is fit to be a police officer.
m not sure that that is a distinction that should justify the removal of the staff representative from the appeal tribunal. I suggest that the staff representative will be as keen as any other member of the tribunal to make sure that the person who appeals should be fit to be a proper police officer. I do not believe that the staff representative would be any more or less likely to decide in that sense than the present or former chief police officer or the qualified lawyer.
This is a matter of some anxiety to the Police Federation, from which I have taken advice on this point. The present amendment gets round the problem raised by my noble friend whereby a five-person tribunal would be substituted for the presently proposed three-person tribunal. My noble friend indicated that having five persons would make the tribunal unwieldy. In order to get round that point and deal with it, I have submitted an amendment which more or less confirms the present practice of having three people on a tribunal, one of whom is a staff representative.
I believe that the present system, which I seek to preserve, has worked well and created confidence among the rank and file of the police. It has also served well the needs of management and senior police ranks. On that basis, I beg to move the amendment.
Lord McIntosh of Haringey: My Lords, let me say very briefly that I admire the persistence of the noble Lord, Lord Bethell in this matter. Although I was involved in the discussions, on reflection, I feel that it is probably better not to have a police appeal tribunal of five members. The problem of getting them together would be quite serious.
The effect of his amendment as it stands would be very curious. The lawyer remains and there will be a retired chief officer of police and a member of the staff association. But there will not be a member of the police authority. That seems to me to be a loss. I understand the good motives behind the amendment but I hope that the noble Lord will not press it to a vote.
Lord Carr of Hadley: My Lords, some long years ago, I had quite a lot to do with employment tribunals. Unless things have changed, so far as I know they do not have staff representatives on them. They have a legal chairman and sidesmen, one of whom has experience from one side of industry (to use the present jargon) and the other who is experienced on the workers' side of industry. In no way do those tribunals have a representative of either the staff association involved in the particular case or the employer. I should hate to see pressed the analogy of the industrial tribunal. It is a purely false one in this case.
Earl Ferrers: My Lords, I agree with the noble Lord, Lord McIntosh, who admired the persistence of my noble friend Lord Bethell. I admire it, too, though I regret it. My noble friend explained why he believes that a member of the appellant's staff association should be on the tribunal. He said that it is over-loaded or over-weighted and becoming management dominated. I hope that I shall be able to explain to him that this is not a matter of obtaining a balance between one side and the other. The existing law on appeal tribunals refers to "an officer of the appropriate rank". It makes no reference at all to "staff associations". At present that particular member of the tribunal is there to give advice as to what might be expected of an officer in the circumstances in question. He is not there to represent the staff association.
I do not believe that formal representation by the staff association on a police tribunal is the right course for the future. My noble friend talked as though the police tribunal would act exactly on a par with an industrial tribunal. He said that I was reluctant to accept that notion. He is quite right. I am reluctant to do so. The police tribunal will not act on a par with an industrial tribunal. If it were, it would not have been necessary to provide a special tribunal dealing specifically with police officers.
Police officers perform an onerous duty for the public. They are officers of the Crown. They are sworn into the ancient office of constable. If the only issue to be decided when they are dismissed were an employment one, it would have been possible to deal with by granting access to the industrial tribunals. But that is not the only issue. One important matter when a police officer is dismissed or when he is required to resign is the public interest issue of whether he is fit for his former office and whether he should not in fact have been expelled from it.
My noble friend argued that police appeal tribunals should have a staff association member because industrial tribunals do. My answer is that industrial tribunals are concerned solely with a particular question: the employment question. These appeal tribunals will have to consider a public interest question too and they should have a membership which is appropriate to that decision.
The object of my noble friend's amendment, as he explained, is to set up police appeal tribunals of exactly the same membership as those which now advise my right honourable friend, because it is my right honourable friend who at present takes the decision. But advice is very different from decision. At the moment it is my right honourable friend who decides appeals. The function of the tribunal is solely to report to him its views, by which he is not bound.
A tribunal which has the onerous duty of deciding whether, contrary to the views of at least four senior officers of the force, a police officer is fit for his office or rank must be composed of people who have some claim to a greater right than the chief constable to say what is and what is not fit behaviour for a police officer. In our view, the only people who can be said to have that standing are members of the local police authority, who are responsible to the local community for providing an
792
efficient and effective force, and someone who is or has been a chief officer of police and can therefore assess how serious a threat to good policing were the officer's actions.
That membership seems to us to give the right balance to a tribunal that is faced with taking decisions —not giving advice—which could have effects for the whole community. I hope that in retrospect my noble friend will agree that that is the right make-up for the tribunal.
Lord Bethell: My Lords, clearly I have failed to persuade my noble friend. His eloquent approach comes from what he described earlier as the more flexible attitude of the authorities to police discipline and the simplified procedures which are introduced in the Bill.
The words "flexible" and "simplfied" are viewed with a certain amount of alarm by many members of the police service. Nevertheless, I understand that the philosophy of flexibility is deeply rooted in the composition of the Bill and that it will not be possible to remove it—certainly not at this late stage. However, I should like to thank those who, at earlier stages of the Bill, have helped to remove some of the provisions on discipline which were most objectionable to members of the police force. I trust that those improvements will remain in the Bill.
Having listened carefully to what my noble friend said on this point, I appreciate that he is not to be moved and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 41 not moved.]
Lord Renton Lord Renton moved Amendment No. 42:
After Schedule 3, insert the following new schedule:
("SCHEDULE 3A
Amendment to Tribunals and Inquiries Act 1992: Police Appeals Tribunals
In Schedule 1 of the Tribunals and Inquiries Act 1992 (Tribunals under general supervision of council) after Tribunal 36, there shall be inserted—
"36A. Police Appeal Tribunals established under section 15 of the Police and Magistrates' Courts Act 1994.".").
The noble Lord said: My Lords, the effect of Amendment No. 42 will be to bring the police appeal tribunals in the Bill within the supervision of the Council on Tribunals. The matter was discussed at considerable length at Report stage when the amendment was moved by the noble and learned Lord, Lord Archer of Sandwell. He asked me to apologise to your Lordships because he is unable to be here tonight. He is chairman of the Council on Tribunals and therefore had a particular interest in tabling the amendment. At the conclusion of the discussion which took place on the first day of the Report stage-15th March at col. 221 of Hansard—my noble friend Lord Ferrers was kind enough to say that, without committing himself, he would give the matter further consideration.
This week my noble friend wrote a letter to the noble and learned Lord, Lord Archer, with a copy to me, explaining that his officials at the Home Office had written to the Council on Tribunals asking a number of pertinent questions in regard to how the council proposed to exercise its oversight of police tribunals

793
were that suggestion to be acceded to. In his letter he said that, understandably, his officials had not yet received a reply and therefore he would not be able to form a firm conclusion at Third Reading. I do not press him to do so. But as the matter was the subject of an undertaking to give further thought at Report stage, the noble and learned Lord, Lord Archer, and I thought that I should at least formally move the amendment. Accordingly, I beg to move.
Lord Simon of Glaisdale: My Lords, many years ago the noble Lord, Lord Renton, and I collaborated on a pamphlet which lad to the Tribunals and Inquiries Act and the setting up of the Council on Tribunals. I therefore have nc alternative—even if he had not convinced me—but to support the amendment he moved formally.
I understand that the noble Earl will want more time to consider the marer. But perhaps I may say this. I can conceive of no substantial reason why those tribunals should not he subject to the jurisdiction of the Council on Tribunals, nor, according to my recollection, was there anything in the White Paper that led to the Act or said when the Act was passed into law which would preclude that. On the contrary, it seems to me that it is essentially a case where those tribunals should come under the remit of the Council on Tribunals. The speech that was made by the noble Lord, Lord Bethel], on a recent amendment, and indeed the reply of the noble Earl himself, seem to me to reinforce the argument in favour of the jurisdiction of the Council on Tribunals.
Lord Slynn of Hadley: My Lords, I have no desire that the noble Earl should say that he regrets my perseverance on this topic. I therefore briefly say this.
Two reasons were put forward by the Minister on Report as to why it was not necessary to include these tribunals within the remit of the Council on Tribunals. The first was that the body would be chaired by a lawyer of at least seven years' standing, to be approved by the Lord Chancellor. That is a good safeguard, but I remind your Lordships that there is one page in a book by Sir William Wade on administrative law which lists a situation—I hope I do not remember it wrongly—in which the Archbishop of Canterbury, a Chief Justice and many other eminent persons were told by the courts that they had forgotten one of the essential principles of administrative law.
The second reason given by the Minister was that those bodies are ephemeral and locally based, and after a day or two may suddenly vaporise when their work is over. That is the kind of situation when some form of control is needed. I am grateful to the Minister for saying on the last occasion that he would look at the matter again. I believe it is a classic case which, if administratively it is possible—I do not believe it is impossible—ought to come within the remit of the Council on Tribunals.
Lord Harris of Greenwich: My Lords, I agree with the noble and learned Lords, Lord Slynn and Lord Simon of Glaisdale, and the noble Lord, Lord Renton. I can see no case against bringing those organisations under the jurisdiction of the Council on Tribunals. I
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welcome the fact that the noble Earl asked his officials to write to the council asking how it would implement any decision to include those bodies in the way proposed. I hope that after that exchange of correspondence and any possible discussions which may take place an amendment will be tabled in the House of Commons, when the Bill reaches there, to bring those tribunals within the jurisdiction of the Council on Tribunals. It is highly desirable, and I am glad that we appear to be moving—rather slowly—towards that objective.
Earl Ferrers: My Lords, I do not know whether or not we are moving. I said that I would consider the matter. As I have not been able to come to a conclusion, I cannot say that I have moved. But I know what the noble Lord, Lord Harris, means. He likes to grasp at every little fig leaf he can find and I do not blame him for that.
The noble and learned Lord, Lord Slynn of Hadley, said that he hoped that I would not regret his perseverance. I regret nothing about the noble and learned Lord other than his superior knowledge. He obviously has Administrative Law as bedside reading and would know its contents, whereas I tend to take lesser books for my bedside reading and bow entirely to his superior knowledge and talent.
When the noble and learned Lord, Lord Archer of Sandwell, last advocated that these bodies should come under the umbrella of the organisation which has the good fortune to have him as chairman, I said that I would consider the points that he made. I am doing that. I hope that my noble friend Lord Renton and other noble Lords will understand when I say, as I indicated to the noble Lord, Lord Harris, that I have not yet come to a conclusion.
As a first step I sought clarification from the council as to what form its oversight might take. That is important. I shall not weary your Lordships by repeating the arguments as to why we did not previously think it appropriate to involve the Council on Tribunals. However, I said that I am prepared to consider the matter and I am considering it. Discussions are still in progress and it will be a little time before conclusions can be reached. The passage of the Bill through Parliament does not cease when the Bill passes from your Lordships' House. I hope therefore that my noble friend Lord Renton, the noble and learned Lord, Lord Archer, and other noble Lords will be content to be patient.
Lord Renton: My Lords, I am sure that I speak for all noble Lords who intervened in this short debate when I say that we are indeed content. We are glad that my noble friend has yet again shown an open mind. We live in hope, and in that hope I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 [Application to police authorities of enactments relating to local authorities]:
[Amendment No. 43 not moved.]
Schedule 7 [Magistrates' courts: minor and consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 44 to 46:
Page 78, line 7, leave out ("chief justices' clerks") and insert ("justices' chief executives").
Page 78, line 41, leave out first ("clerks") and insert ("executives").
Page 80, line 6, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble and learned Lord said: My Lords, Amendments Nos. 44 to 46 are consequential upon Amendment No. 8 and with your Lordships' leave I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
An amendment (privilege) made.
7 p.m.
Earl Ferrers: My Lords, I beg to move that the Bill do now pass. At last we have come to the end of the deliberations by your Lordships on this Bill. When the House first considered the measure on 18th January, it was my happy task to conclude the debate on the Motion that the Bill should be read a second time. I seem to recall that I said that I realised that it was a controversial Bill. I think that my expectations were not exactly unfounded.
We brought this Bill forward because there was a need to reform the structure of policing and of the magistrates' courts service in this country, which have remained largely unchanged for the past 30 years. The world in which we all live has changed dramatically in that time. So it has for the police; so it has for the criminal. Life, regrettably, is lived at a much faster pace. Computers, aeroplanes, motorways, even portable telephones have all seen to that. Everything moves quicker, and more exhaustingly than before.
Technology has been a great asset. But it is expensive. So are policemen. As the expense of everything increases—whether to the individual, to companies or to the state—so too does the demand that we should get a proper return for the money expended. When in the past we could not tell exactly what was happening, no one particularly minded. Now that we can tell what is happening, people want to know.
No public service can afford to say, "We are different. Ours is a unique service. We must be excused these demands of a modern society." The police cannot either. People want to know what their police force is doing; how it is doing; how it intends to deal with the problems which confront it; where the resources are applied; and how successful the police are at doing what they are doing.
This is no reflection on the police. There are few of us who have had anything to do with the police who are not overwhelmed with admiration for what they do for our society, the risks they take and the cheerfulness and courtesy—usually—with which they carry out their task. It is not the police but the structures within which they work which are the subject of change and which are the subject of the Bill.
We want to see more power, more responsibility and more accountability moved away from the centre and given to the local areas, to the local police authorities
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and to the local chief constable. I had considered the Bill to be a decentralising measure, which I thought would meet with the approval of your Lordships.
It has never been our intention to produce a centralising Bill, although there are features in it which I know have caused your Lordships' some anxiety. The fact is that we are blessed in this country by having our police force administered within a tripartite arrangement involving the Home Secretary, the police authority and the chief constable. The excessive concentration of power over the police in any one of those three bodies would, in my view—and, I think, in the view of most of your Lordships—be disastrous, retrograde and undesirable.
Your Lordships were good enough to explain your anxieties over this, and over some other matters, too, in a manner which even the most, shall I say, dim-witted Minister could not fail to understand. I like to think that the Government listened to your Lordships, that we took note of what your Lordships said, and that, in many cases, we adjusted our proposals to take account of your Lordships' views. In some cases, such as this afternoon, your Lordships encouraged us to adjust our proposals in a way we would have preferred not to, but that is part of the hazards—and even the excitement and, some might say, the irritation—of political life. But it is part of political life.
While we may not have been able to go all the way in all the matters with which your Lordships were. concerned, I hope that we have at least gone some way in most of them. I hope that where we have been unable to meet your Lordships' views, we have at least been able to say why we have not.
I have no doubt, though, that my noble friend Lord Mottistone would still feel that his mathematical formula for appointing the independent members of police authorities is far better than the one which has obtained universal acceptance. But then, in the words of Mandy Rice-Davies, "He would, wouldn't he?".
What we have sought to do is to establish strong independent police authorities, to give greater management freedom to chief constables and to provide a system for setting priorities and for measuring police performance. Those features of the Bill are just as important now as they were when the Bill first started its parliamentary passage in your Lordships' House. I hope that your Lordships will feel that the Bill as it is now will be better able to achieve those aims.
The Government's purpose in bringing forward the provisions in Part IV of the Bill was to improve the way in which the magistrates' courts are organised. The changes will provide clearer lines of accountability for the service both locally and with central government. They will guarantee the judicial independence of the magistrates and their legal advisers in a framework of local justice, and they will provide a better and more efficient service. My noble and learned friend the Lord Chancellor said before Second Reading that he intended to approach the debate about these provisions with an open mind. He has done so.
Your Lordships will recall that there were concerns that the Bill's provisions could give central government an inappropriate level of control over the management

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of the magistrates' courts service. Some of your Lordships also argued that the provisions might undermine the independence of advice which would be received by magistrates when dealing with individual cases. My noble and learned friend listened and took account of your Lordships' views. Julius Caesar "came and saw and conquered", but my noble and learned friend took a more intellectual approach; he "came and listened and adjusted".
As a result of the concerns expressed about the provisions in the Bill, a number of changes have been made to various parts of the Bill since its introduction into your Lordships' House, including a number to the provisions which apply to Scotland.
Where it seemed right to do so, we have tried to meet the concerns which were expressed. Your Lordships' House has carried out its function of putting the Government's propasals to the test, in a manner which, I may respectfully hope, will not necessarily be repeated with quite the same vigour on any other Bills with which I may in future have the privilege of being involved. I should like to thank noble Lords from all parts of the House for the contributions which they have made, some of which, I might say, have been more helpful than others, but all of which have contributed to the rich tapestry of debate which this Bill has experienced.
There is no doubt that the efforts which have been made by your Lordships will enable both the police and the magistrates' co its services to carry on the good work they are doing. I hope that it will enable them to fulfil their duties even better and more efficiently in the future for the benefit of our society as well as to its general satisfaction. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Earl Ferrers.)
Lord McIntosh of Haringey: My Lords, in a paradoxical way, the Bill started with consensus and is finishing with a degree of consensus. The consensus that the Bill started with was that it was heartily detested by everybody who knew anything about either the police service or the magistracy. It was detested by the local authority associations, by representatives of the police authorities themselves and by the representatives of the police of all ranks, from chief constable to constable. It was detested by the Justices' Clerks' Society, by the Magistrates' Association, by all of the bodies concerned with the operation of magistrates' courts and, as became clear at Second Reading, by a very large number of your Lordships on all sides of the House. So we had a consensus of a sort.
What has happened since then? Well, a very large number of changes have been made. Almost all those changes—indeed, all of them with the exception of one this afternoon—have been made by agreement between the Government and their critics. That deserves some remark because it is a very unusual situation. It encourages us to think that the changes, reached not perhaps on a basis entirely of consensus but certainly by adjustment—I think that is the word the Minister chooses to use about the Lord Chancellor's changed views—may survive.
What has been achieved? It is no longer proposed that the Home Secretary shall appoint the chairman of
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police authorities. It is no longer proposed that the police authorities shall be the same size throughout the country regardless of local circumstances. The proposition that the majority of local authority members on police authorities should be taken away has been removed. The proposition that there should be the Home Secretary's placemen on police authorities has been—by a rather complicated route which may not survive —got rid of. The proposition that the Home Secretary should be responsible for the removal of unfit police authority members has been taken out. An additional disqualification for police authority members as regards the bankruptcy of their companies has been added. This afternoon the proposition that ranks in the police force should be reduced from nine to six has been amended by a decision of your Lordships' House.
As regards the magistrates' side of the Bill, very considerable changes have been made. It is no longer intended that justices' clerks should be appointed on fixed-term contracts and on performance-related pay. It is no longer proposed that the chairman of the magistrates' courts committee needs to have his election approved by the Lord Chancellor. There has been considerable movement on the administrative role of what is now to be called the justices' chief executive rather than the chief justices' clerk, although there has been nothing like as much movement as some of us would have wished. It is fair to say that the provision for the Lord Chancellor to initiate amalgamations has been. made less dangerous by an amendment which he moved this afternoon. That shows that he has to indicate the improvement in administration which will result. That has been a valuable change.
There are still many things which we wished to have changed. I am sure that there will be plenty of matters for the other place to debate when the Bill reaches there. Despite what the Minister has said, there is still a great deal of trendy centralist nonsense in the Bill. 'There is all the stuff about national objectives. The Bill has been amended so that the problem is that now they are going to be meaningless rather than particularly threatening. There is also stuff about performance targets. I have lived with them in private industry. You can live with and benefit from them when performance can be expressed in terms of profit. But when performance targets have to be expressed in terms of the speed in answering the 'phone at the expense of dealing with crime, then I beg leave to doubt whether they perform any useful function. I suggest that they could be dangerous.
I still believe that there are things which need to be done about the judicial role of the justices' chief executive, as this evening's vote made very clear. Above all, we regret what is missing from the Bill. What is missing—and has been throughout—is an appreciation of the importance of community policing and the real local administration of the local justice system.
I now come to my second consensus with which we leave the Bill. What has happened is that, in arousing a consensus of opposition to the provisions of the Bill, the Government have performed a very useful function by arousing a consensus of re-awakening, of the understanding of the principles behind local and

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community policing and a truly local administration of justice. Nothing has been done to help that in the Bill and in many ways the Bill is still a bad one. But at least those who have been involved in these matters have been reminded of the importance of policing which is accountable to the local community, of the local administration of justice, and of the tripartite system and the sharing of powers between police authorities, chief constables and the Home Secretary. Although we are not grateful to the Government for that, we are grateful for the effect on this ill-conceived legislation.
I would not wish to let this occasion pass without thanking in particular my noble friend Lady Hilton, whose advice and support throughout this Bill has been inestimable. It has been a pleasure to work with her. I am grateful to the noble Lord, Lord Harris of Greenwich, for the work which he and his colleagues have done on the Bill. I shall not embarrass noble Lords on the Conservative Benches with whom I found myself in agreement both in and out of the Chamber, by naming them.
We have been working very closely and to considerable effect with noble Lords on the Cross Benches. I am very pleased to have had the opportunity of working in particular with the noble Lord, Lord Allen of Abbeydale, the noble Viscount, Lord Tenby, the noble and learned Lord, Lord Ackner and others who have also been involved. It has been a pleasure and a privilege to be part of a team which has not been confined to a single party. To the Minister and to the noble and learned Lord the Lord Chancellor, I say that their approach to the Bill has been entirely honourable and entirely understanding—that is not quite right because sometimes they have not understood the points which we have been making although that is clearly our fault. But they have certainly listened to what we have said and have acknowledged both the force of the arguments and the potential of the votes which might go against them. The result has been a good relationship and a better Bill.
7.15 p.m.
Lady Saltoun of Abernethy: My Lords, I cannot let this occasion pass without saying a brief word of thanks to the Ministers for their concessions and their painstaking explanations of the provisions of the Bill; especially to the noble and learned Lord, Lord Fraser of Carmyllie, who I am sorry is not here to hear this. We are grateful for the enormous amount of trouble which he took over the anxieties of many Scottish Peers as regards certain provisions of Part II of the Bill; for meeting and listening to us and also for doing what he could to help us. I am sure that all my colleagues who took part in discussing the amendments to that part of the Bill will agree with me in expressing our gratitude to him.
Lord Mottistone: My Lords, I too should like to offer my thanks both to my noble and learned friend the Lord Chancellor for his great understanding as regards the magistrates' part of the Bill and for having accommodated my amendments and those of others to
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the extent that he did. I am most grateful for that. I am also most grateful to my noble friend Lord Ferrers for accommodating a great deal. I am grateful too to my right honourable friend the Home Secretary for his assistance in this area. Of course, I would say it, wouldn't I? It would have been nice if there had been a little more, but it was jolly good. I am most grateful to both my noble and learned friends.
I am particularly grateful to the noble Viscount, Lord Tenby, and to the noble and learned Lord, Lord Ackner, for their support for various amendments of mine and for tabling amendments which I was happy to support. A great deal of gratitude is due to other noble Lords who shall not be mentioned, partly to reduce the amount of time taken, but also because I believe that, as a whole, we found ourselves much in agreement. Indeed, my noble friends on the Front Bench were in agreement with us for a great deal of the time. On the whole, having started as a Bill which I believed was rather nasty, it is turning out to be one which is almost right.
Lord Allen of Abbeydale: My Lords, in speaking about the police part of this rather curious mixture of a Bill, I too should like to thank the noble Earl for his patience and courtesy. At times he must have felt pretty sorely tried. I thank him for the genuine attempts he made to meet some of the anxieties which many of us felt about the Bill in its original form.
On the major alterations to the Bill about the make-up of police authorities, it is, I think, fair to say that both sides, as it were, made substantial concessions. But it is worth bearing in mind that the Home Secretary has retained his central point of adding independent members to police authorities. He has also retained other direct controls; for example, over the size of the authority, the need for which has never been demonstrated—at any rate to my satisfaction. I also have lingering doubts whether in all cases there will be enough candidates for the complicated selection procedure which has been evolved. But we shall see.
There are various other aspects of the Bill about which I feel less than completely happy. I shall not go through them all at this stage, but, despite all the fine words of the Government, I think that the Bill is open to the criticism that, to some extent, it still undermines the chief constable's operational independence and leaves open the possibility of his being saddled with a police plan with which he does not agree and for which he does not have the necessary resources.
I am disappointed too that there is to be no local inquiry into a compulsory amalgamation scheme. I fear that, for once, the noble Earl completely failed to convince me of the need for doing away with this long-standing opportunity for local concerns to be voiced and scrutinised, and I can only hope that the practice does not spread to other departments. In the meantime I suppose that we can take some little comfort from the fact that the Government have no plans to use those powers—although we did get a rather alarming glimpse of what the restructuring of local government might mean for the police.
I listened just now to the claims that the Minister made for the Bill. But I am still not sure what the

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Government hope to achieve by this Bill in the way of improving the maintenance of law and order and dealing with crime. I happen to believe that crime in this country —although not the fear of crime—may not be going up as much as all that, for a variety of reasons which it would not be appropriate to discuss this evening. But if crime figures do slow down, or decrease as some of them are doing already, I should take a great deal of persuading that this piece of legislation had anything to do with it.
For our debates, I had occasion to look up the Police Act of 1946 and found that although this was a year when the post-war Labour Government were busily implementing their policies, the statutes for the year are contained in one single volume. When I then had occasion to look up the Local Government Act of 1992, I found that the statutes for that year take up five volumes—and rather bigger pages too. I wonder whether this spate of legislation means that we are all that much better governed. And, sorry as I am to end on a gloomy note, I wonder in particular whether we should be all that much worse off if this Bill had never appeared at all and if the corning volumes for 1994, without this Bill, could have been just that little bit slimmer.
7.23 p.m.
Lord Harris of Greenwich: My Lords, I find myself in almost complete agreement, and not for the first time, with what the noble Lord, Lord Allen of Abbeydale, has just said. The police part of the Bill is largely irrelevant to the issues confronting us. If anything, it will do damage rather than good.
It was a mere nine weeks ago that we debated the Bill on Second Reading. It certainly seems a great deal longer than that to many of us who have been involved in the debate in your Lordships' House. Then, many of us described the Bill as of major constitutional importance both as regards the maintenance of an independent magistracy and as far as the police service was concerned. It involved a huge transfer of power from local communities to Ministers in Whitehall.
If the noble Earl will forgive me for saying so, I found it mildly ironic that he said a few moments ago, "It was never our desire to produce a centralising Bill". If that was the objective, I am afraid that the Government have not been particularly successful because it was the view of virtually all noble Lords who spoke on Second Reading that that was precisely the central purpose of the Bill. As we recall, thanks to fierce opposition from all parts of the House, that is no longer true in relation to those parts of the Bill dealing with the magistrates' courts. Such wholly objectionable proposals as performance-related pay for justices' clerks and the proposition that the Lord Chancellor of the day could reject the appointment by a magistrates' courts committee of its chairman have been dropped. We welcome that without reservation.
I turn now to those parts of the Bill that relate to the police. As we have been reminded by the noble Lord, Lord McIntosh of Haringey, as originally drafted the Bill would have given powers to Ministers which would have carried us to the very threshold of a continental Ministry of the Interior. The Home Secretary of the day
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would have been able to appoint his political henchmen to the chairmanship of every police authority in England and Wales, as well as about a third of the membership of those authorities. Again, as a result of the fact that members from all parties in the House opposed those proposals, they were eventually dropped.
It was said a few moments ago that the Government listened to the House. Indeed, they did, and I welcome that. However, they did not listen to the House in the debate that we initiated in March last year when all these issues were debated. On that occasion, the Government had one ally. They paid no attention whatever to what was said and the only occasion when they started to listen was when it was obvious that they were about to be defeated.
Following the first day in Committee when it was clear that the Government were about to be defeated, the noble Earl, Lord Ferrers, entered into discussions with a number of us on that and other issues in the Bill. It is right to pay tribute to the noble Earl for his good humour during what became a protracted series of meetings with a number of us. It could not have been an agreeable experience for him, but he always demonstrated a readiness to listen and met us on a number of difficult issues raised in the Bill.
I have only two points to make in conclusion. First, I have no pride of authorship in the new proposals for the appointment of members of police authorities. Our motive in accepting the complicated arrangements that. are now set out in the Bill was straightforward. They were a price worth paying in order to remove the power of the Home Secretary to appoint his political associates to the membership of police authorities. Again, I agree with the point that was made by the noble Lord, Lord McIntosh, that whether those new arrangements will survive for long is a matter of individual judgment. Speaking for myself, I doubt whether they will.
Secondly, I come to what remains of the. Bill. From the first, it has been my view that we have been involved in a great damage limitation exercise. The new array of powers given to Ministers in the Bill has few friends. Those powers are being taken in the face of continued, strong opposition from the police service. They weaken the operational independence of chief officers, as the noble Lord, Lord Allen of Abbeydale, rightly said, and, despite the protestations of the noble Earl, it is clear that they are designed to undermine the operational independence of the chief officers. They hand to Ministers power to set national policing objectives which in many communities make no sense whatever. Minor physical assaults are to be an objective; the rapid growth in the trafficking of heroin and cocaine is not. That is quite absurd.
A few days ago the annual figures showing drug trends were published. What they demonstrated was that there had been 10 murders and 21 attempted murders linked to crack cocaine. The director of drugs at the National Criminal Intelligence Service said that there was a continually growing level of drug misuse. But that is not to be a national policing objective. That demonstrates the total irrelevance of this part of the Bill to the problems faced by many communities in this country.

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As regards local policing objectives, a police authority will be able to interfere with the operational independence of the chief officer simply by indicating to him at a time when his contract is coming up for reconsideration that, if he does not accept their judgment on an operational issue, his contract may not be renewed. All of this is being done on the basis of nothing more than the whims of Mr. Clarke, who was Home Secretary at the time that these proposals were announced. There was no independent inquiry by a Select Committee, no departmental inquiry and no Royal Commission. It is a classic illustration of what is wrong with the process of putting legislation through Parliament which is ill-considered, ill-drafted and irrelevant to the central problems that face our country.
It is probably an error to speculate on how long this Bill will remain in its present form on the statute book. All one can say with certainty is that as long as it does it will do damage to the police service. It will have no effect on the real level of crime, nor, in my view, will it have the slightest effect on the fear of crime that dominates so many communities in this country. The British police service, despite all its recent difficulties, still possesses an immensely high reputation. It is tragic that that is to be endangered by this wholly undesirable legislation.
7.30 p.m.
Lord Ackner: My Lords, I do many things badly. One of them is to dissemble. I admit straight away that I am deeply disappointed by some of the major provisions of this Bill. According to Lord Simmonds, a distinguished predecessor of my noble and learned friend on the Woolsack:
"It remains the supreme truth that the safeguard of liberty lies in the independence of a judiciary which fears not nor favours the Executive".
Those words are now becoming distinctly old-fashioned. On Second Reading the noble Lord, Lord Callaghan, referred to a statement given that morning on the radio by Mr. Freen, chairman of the Justices' Clerks' Society, recalling examples of pressure being brought to bear on justices' clerks by civil servants about the conduct of court cases during the miners' strike. The noble Lord said that if such an encroachment by the Executive on the judiciary did occur it could not have happened a quarter of a century ago.
We have been moving backwards since then whereby, with ever-increasing centralisation, the process is advanced by which the Executive creeps nearer and nearer to running the administration of justice. The pursuit of power and the Executive's concept of what constitutes value for money are the motive forces.
As I have already said, I have heard that it is part of the Treasury creed that if it cannot be measured it does not exist. That justice falls a casualty to this philosophy is borne out by that astonishing forum, funded in part by the Lord Chancellor's Department, entitled Managing Corporate Direction—a Course Designed for Managers of Magistrates' Courts and its extraordinary content,
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which was described in such detail by my noble and learned friend the Lord Chief Justice on the 22nd February during the fourth day of Committee.
In introducing this Bill my noble and learned friend the Lord Chancellor has made history. It must be the first time that a government have felt obliged to enshrine in legislation a clause whose very function is said to protect and safeguard judicial independence. I say that the Government were obliged to do so because of the very strong and persistent criticism from the lay judiciary and their legal advisers, the justices' clerks, during the discussions that preceded the introduction of the Bill.
The sad and depressing feature of this legislation is that it has highlighted the marked difference between the judicial and political concept of judicial independence. The initial, highly criticised proposal—later dropped after Second Reading—that justices' clerks should be on fixed-term contracts and subject to performance-related pay represented, in the words of my noble and learned friend the Lord Chief Justice,
"a serious threat to judicial independence".
The Lord Chancellor, in his statement withdrawing these proposals and the additional proposals that the appointment of chairmen of magistrates' courts' committees required the approval of the Lord Chancellor, as well as the renewal of the appointment of the justices' clerks, repudiated on behalf of the Government the suggestion that these proposals in anyway undermined judicial independence.
This leads to the inevitable question: why Clause 70 (a clause designed to protect the independence of the justices' legal advisers) and how effective is it anyway? The reasons for the clause appear to be largely cosmetic, since imprecision in its drafting renders its effect largely illusory. Indeed, I have submitted to your Lordships that the justices' clerks may well be better off without the clause altogether.
At every stage of this Bill that clause has been criticised on all sides of the House. Draft amendments have been put forward in Committee on Report and today on Third Reading in order to elucidate and spell out the necessary protection which this clause should give. Although the Lord Chancellor indicated on Report that he might consider how the protection said to be given by the clause might be elaborated, he has consistently resisted all attempts to do so.
Why is this? It is my belief that all the song and dance about the name of the new official, whether it was to be the chief justices' clerk, the justices' chief clerk or, as I suggested and as has now been accepted, the clerks' chief executive, was largely a red herring. The essential issue is how the new official is to be prevented from becoming, as described by my noble and learned friend the Lord Chief Justice, the headmaster who carries out directions and guidelines that emanate from the Executive, in particular from the Lord Chancellor's servants, the inspectors of the magistrates' courts' system, whose power to interfere in the exercise of judicial functions and the discretion of the magistrates my noble and learned friend the Lord Chancellor has refused to restrict.

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One might have thought that that remarkable coincidence which occurred this week would have persuaded the Lord Chancellor to think again. While we were all concentrating on preserving the judicial independence of lay judges and their legal advisers, there suddenly surfaced the very grave allegation—on the merits of which I certainly do not propose to comment—made on the front page of the Observer of 6th March, supported by a very respected and recently retired Lord Justice of Appeal, that the Lord Chancellor had acted unconstitutionally by requiring the President of the Employment Appeal Tribunal, Sir John Wood, a High Court judge, to follow a legal course which that judge considered to be contrary to his judicial oath. That gave rise to a Starred Question on Monday of this week.
I am bound to tell your Lordships that in fairness to Sir John I have checked against a copy of the correspondence the validity of the correction which the noble Lord, Lord Lester, unsuccessfully invited the noble Lord the Lord Chancellor to make to his detailed answer as to the sequence of events—which came first, the judge's detailed justification of the procedure he was adopting or the letter from the noble and learned Lord the Lord Chancellor telling the judge, as is accepted, "to consider his position"? Having made that check, it is quite clear that the sequence suggested by the noble Lord, Lord Lester, was correct. Out of fairness to Sir John, 1 am sure that my noble and learned friend the Lord Chancellor will take the earliest opportunity to correct the error.
As previously indicated, I refer to this incident only by way of providing a quite dramatic cautionary tale, emphasising how careful one must be not to encroach either directly or indirectly on the judicial function. The Government having recognised that this legislation necessitated spelling out in terms the protection which must be accorded to the independence of the lay justices and their legal advisers, I find it absolutely astonishing that they have so obstinately refused to do precisely this.
Lord Renton: My Lords, perhaps I may return briefly to the question that the Bill do now pass. During the course of our debates I have from time to time been a bit of a nuisance to my noble friend Lord Ferrers, in particular on the composition of police authorities. I wish to acknowledge not only his patience and courtesy but also his unfailing good humour and complete mastery of the subject and grasp of the detail of this complex and controversial Bill. We should be greatly indebted to him. As regards the part of the Bill with which my noble and learned friend the Lord Chancellor was concerned, I felt much less difficulty. Indeed, I was glad to support him on all of it, except Clause 70, on which I hope there may be further thoughts.
The Bill is now very much better than when it was first introduced. My noble friend Lord Whitelaw is entitled to some of the credit for that. It is a much better Bill but I humbly suggest that it is capable of further improvement in another place.
Lord Simon of Glaisdale: My Lords, I rise only to draw attention to a wider constitutional issue arising from the Bill. I entered Parliament as long ago as 1951. I cannot remember any measure being so universally
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and strongly assailed as was this Bill on its introduction. Noble Lords who preceded me in the debate have spelt out the manifest and dangerous defects. They have also spelt out the significant ways in which the Bill has been improved. Finally, they have spelt out the scope for further improvement.
One is bound to ask: how has that improvement taken place? I cannot remember a measure that has been debated and discussed with equal ability. That applies not only to the Front Bench spokesmen, to whom we are irredeemably in debt, but also to those on the Back Benches who brought so much experience and expertise to the measure.
As regards the police provisions, the noble Lord, Lord Callaghan, spoke after the negotiations had been completed and concessions won. That could have been done only if all negotiating parties trusted each other implicitly, as was obvious when the matter came back to your Lordships' House on Report. On that occasion the noble Lord, Lord Callaghan, said:
"everyone has given a little away in order to get that accommodation … but I do not know what those in another place will think when they read about it. However, I dare say that: the Government's majority will carry them through. They do not have to withstand quite the independence of mind which characterises this House".
The noble Lord, Lord McIntosh of Haringey, added:
"it is well recognised that the arrangements are those to which we assented in order to achieve agreement… I would prefer to have two-thirds of what I wanted—"
and I think that is a pretty fair assessment—
"not being overturned in another place than to lose everything that would have been gained with a victory in the Division Lobbies here. My noble friend Lord Callaghan is quite right. The discipline which applies in another place makes it likely that, whatever we put forward for its consideration, provided that it is approved by the Government, will in fact go forward".—[Official Report, 15/3/94; col. 116.]
That exemplifies a most important lesson. Your Lordships' House is much freer and more enabled to act a forum of state for the discussion of these grave constitutional measures than, it must be said, the House of Commons. I was always proud to be a Member of the other place. Why is that so? One has only to think in the context of this Bill that your Lordships have among you five former Secretaries of State at the Home Office. At one point, three of them intervened significantly and decisively. Another also contributed to our deliberations. We have among our Members a former Permanent Secretary and three Ministers of State in that department, in addition to the noble Earl. No other legislative assembly in the world can show such a galaxy of relevant talent. Lord Lieutenants of counties, the Governor of the Isle of Wight and a number of justices of the peace supplemented the knowledge and brought their influence to bear. It would be quite inappropriate to try to list them all.
That means that your Lordships' House as at present constituted is in a wonderful constitutional position to review a constitutional measure such as this. It can be done in the way that it has been done; that is, by negotiations between Front Benchers who trust each other. It can be done by influence brought to bear by former Ministers of the department and by all the Back Benchers with the knowledge to which I have referred.

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Perhaps I may add that among noble Lords who intervened in that way, some were hereditary Peers and some were Life Peers by appointment. Therefore, when, as at the moment, the future of a Second Chamber is being canvassed, your Lordships and the general public will, I think, wish to look at what has happened and why and how it has happened with regard to this Bill. Your Lordships need feel no modesty in view of the fact that you have improved the Bill out of all recognition.
Lord Carr of Hadley: My Lords, I wish to say how happily I can now support the Motion that the Bill do now pass.
When I first saw the Bill, I never imagined that I should be able to say that. Parts of it appalled me so strongly that I went so far as to say on Second Reading that had I found myself again to be Home Secretary, I should have rather resigned my office than accept the powers in the Bill as it was first presented to us.
I remember ending my speech on that occasion by saying that I realised that it was old fashioned and presumptuous of me to ask both the Government and Oppositions to get together to try to reach a degree of consensus and to preserve the non-politicisation of the police, which we have always managed to do in this country. It is a source of great happiness to me to see the success with which that was done. I wish to thank everybody who played a leading part in that.
This is still not the Bill that I should have presented to Parliament had I been Home Secretary. But, as I said when I first saw it, there were, alongside what I regarded as extremely objectionable provisions, provisions which are very good and which will prove to be very good in practice.
I do not wish to be in any way grudging in supporting the Motion that the Bill do now pass because, with reasonable luck and good and wise administration, the Bill will work well. Therefore, I send it happily on its way.
Earl Ferrers: My Lords, I shall resist the temptation to answer all the points that have been raised in the debate. I am grateful to my noble friend Lord Carr for what he has just said. He said that there are good provisions in the Bill; and there are. However, even this evening, your Lordships could not resist the temptation of drawing attention to those provisions which your Lordships find disagreeable and have not homed in on the good points of the Bill.
I was grateful to my noble friend Lord Renton for his kind remarks. He said that he had been a nuisance from time to time. If I may use a colloquial expression, I would say that he can say that again.
The noble Lord, Lord McIntosh, said that he does not like performance targets but at least the Bill focused attention on local accountability and local policing. That is true. The noble Lord, Lord Allen of Abbeydale, referred to the fact that my right honourable friend retained his objective of having independent members.
It would be inappropriate to rehearse the advantages of the Bill but I cannot resist answering one or two of the points made by the noble Lord, Lord Harris of Greenwich. He said that we had had protracted
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discussions on the Bill. I did not protract those discussions. I wonder who it was. We had discussions and as a result of that, the Bill was changed in a way that I hope even the noble Lord, Lord Harris of Greenwich, appreciates.
I have heard the noble Lord, Lord Harris of Greenwich, make many speeches in my time. I have enjoyed some of them but when I have been at the butt end of them, they have been rather disagreeable. However, I do not believe that I have ever heard him make such a reactionary speech as that which he made this evening. He said that nothing must change and that everything must be retained exactly as it is. He said that the police are superb, the structures are wonderful, and we should not change anything.
Perhaps I may tell the noble Lord that when I first entered the Home Office, I heard from the police and elsewhere that change was needed and that the police were looking for change. They wanted modernisation. They complained that the Home Secretary retained powers to allocate out police officers and many other responsibilities. They wanted him to release those powers. What does my right honourable friend do in this Bill? He has released that power. He has created separate individual police authorities to look after policing in their own areas. He has given them the ability to look after their own finances and to make decisions on policing, vehicles and so on. All such matters have been moved to the local police authorities.. They are now independent of local authorities.
When anything goes wrong—and it does from time to time—the first thing that everyone asks is what the Home Secretary is going to do about it and what action he is going to take. That question has been often asked of me, including by the media. Under this Bill, that will no longer have anything to do with the Home Secretary. If something goes wrong in the locality, it will be the business of the police authority. However, as I am sure your Lordships will agree, the Home Secretary must retain some powers in the event of things going wrong. After all, he is responsible for the £6,000 million of public money which goes to the police authorities. If he has no responsibilities whatever, how can he answer his critics when he is castigated because things have gone wrong? Of course the Home Secretary must retain certain powers, but this is not a centralising measure in that respect. It gives powers, responsibilities and accountability to the local police authorities and local chief constables.
The noble Lord, Lord Harris, could not resist referring in a disparaging way to political henchmen and associates whom he thought my right honourable friend wished to install as independent members. I have always explained that that was never the intention of my right honourable friend. Indeed, in order to meet that criticism, we devised, with the help of other noble Lords, a system to make that absolutely clear.
Throughout the passage of the Bill the noble Baroness, Lady Hilton, the noble Lord, Lord McIntosh, and, of course, the noble Lord, Lord Harris of Greenwich, have all demanded consultation and we agreed to consult. The noble Lord, Lord Harris of Greenwich, then turned upon me and asked why drugs

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are not included in the national objectives. I should tell the noble Lord that we consulted with the relevant people as to what the national objectives should be. As a result of that consultation it was considered that although drugs are important, vital and despicable, they are not suitable for national objectives. Therefore, the noble Lord, Lord Harris of Greenwich, should not complain when the consultation that he has demanded results in an outcome which is different from his wishes.
Lord Harris of Greenwich: My Lords, I recall the last occasion on which the noble Earl put that point extremely forcefully. But, as he will recall, on that occasion I pointed out to him that the police service made it quite clear that it was fundamentally opposed to the concept of national policing objectives. That is the issue.
Earl Ferrers: My Lords, I do not believe that that is the issue at all. If there are to be national objectives, consultation takes place on what they should be. As a result of that consultation, it was decided that drugs should not form part of the national objectives on this occasion.
could go on for ever but I should not wish to do so. I end on what I hope is a happy note. I am grateful to noble Lords for a variety of contributions—the nice ones and the nasty ones. They do not always come from different people. Some noble Lords make nice as well as nasty speeches. Whichever they are, I am grateful for the contributions which your Lordships have made and I commend the Bill to the House.
On Question, Bill passed, and sent to the Commons.

Coal Industry Bill
Brought from the Commons; read a first time, and to be printed.

Transport Police (Jurisdiction) Bill
8 p.m
Earl Ferrers: My Lords, I beg to move that the Bill be now read a second time.
I should like to start by saying how grateful I am to the noble Lord, Lord Harris of Greenwich, to the Chief Constable of the British Transport Police and to the British Railways Board for having drawn the matter to your Lordships' attention, and for the courteous consideration of the Opposition and the Liberal Democratic party in your Lordships' House in allowing this unusual, but not entirely unique, parliamentary procedure to be used whereby the Bill can pass all its stages in one day.
I think I can say that the Bill is not controversial. It is merely necessary to ensure that the jurisdiction of the British Transport Police is not, inadvertently, reduced in England and Wales from 1st April by the Railways Act 1993. The British Transport Police is a national force employed by the British Railways Board. It operates under its own Chief Constable and the auspices of a police committee. From 1st April, that committee will be chaired by the Chairman of British Rail, Sir Bob Reid.
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The Government want the British Transport Police to continue as a unified police force, policing Britain's rail network, just as it does now. But, without the Bill, the; powers of the British Transport Police would be reduced on 1st April and its effectiveness in policing the railway would therefore also be reduced.
Quite simply, the problem is as follows. The effect of the Railways Act 1993 will be, inadvertently, to limit the British Transport Police's powers in relation to crimes connected with or affecting Railtrack—the new Government-owned company which will manage all track, signalling and stations from 1st April. Broadly speaking, the British Transport Police would have powers to investigate or to make arrests only when on or in the vicinity of Railtrack property.
The problem, which has made the Bill necessary, is caused by the words "in the vicinity of'. As the British Transport Police will, under the Railways Act 1993, only be able to use its powers "in the vicinity of" Railtrack property, it would mean that it would lose its powers to investigate, to pursue and to arrest offenders away from Railtrack property. There would also be some uncertainty about what the words,
"in the vicinity of Railtrack property",
actually mean. For example, how far could a British Transport Police constable pursue an offender who is running from a station before he ceases to be in the vicinity of that station?
At present, a British Transport Police constable can arrest a person in his home for an offence which he has committed on British Rail property. In other words, a British Transport Police constable can see a person commit an offence at King's Cross can pursue him to his home in Pimlico; or, indeed, he can call at his home in Pimlico the next day to interview him in order to arrest him. In that example, even the most broad-minded legal advocate might find difficulty in persuading a court that Pimlico was "in the vicinity of" King's Cross.
The Railways Act 1993 has no effect on the jurisdiction of the British Transport Police in relation to matters concerning the British Railways Board, London Underground Limited or Docklands Light Railway. In due course, though, as the private sector takes over existing British Rail services, the problem which I described in relation to Railtrack would then also apply to those privatised services.
The Railways Act 1993 only affects the jurisdiction of the British Transport Police in England and Wales. It does not affect the jurisdiction in Scotland, which remains unchanged as it is intended to be. The defect in the Railways Act was only discovered recently and a great deal of effort—and also some anxiety !—has been expended in trying to resolve how best to rectify it. It was considered that the Bill would be the best way. The Bill will enable the British Transport Police to have exactly the same jurisdiction which it has now in policing railway lines and stations. Its members will be able to investigate and make arrests on Railtrack property or away from it when dealing with any crimes which are connected with or which affect Railtrack, just as they do now in relation to British Rail property.
The Bill also provides for the British Transport Police to have the same jurisdiction in relation to

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matters connected with or affecting any subsidiaries of British Rail and any future private sector operators. Such operators would be "police services" users under the terms of the Bill. They will not be able to operate without a licence which will be issued by my right honourable friend the Secretary of State for Transport or the rail regulator, unless they are licence exempt which, in practice, will apply only to a tiny proportion of railway activities. The licence will require them to enter into an agreement with the British Transport Police for the provision of police services.
The police committee will ensure that the police services which are to be provided are clearly set down, will be common to all agreements and will cover all which is necessary for the British Transport Police to maintain law and order on the railway. My right honourable friend the Secretary of State for Transport must approve all police services agreements and he will therefore be able to ensure that there is a consistent approach to any provisions in the agreement which might affect the jurisdiction of the British Transport Police.
Railtrack and, in due course, all licensed private sector operators will pay British Rail for the police services which they receive. But, as the employers, British Rail will be responsible for funding the British Transport Police. So there will be no question of there being any effect on the British Transport Police should any operator fail to pay up.
The Bill will therefore ensure that the British Transport Police will retain, after 1st April, the jurisdiction which it has at present to police and to maintain law and order on the railway. The British Transport Police, British Railways Board and Railtrack have all been consulted and have been given assurances by my right honourable friend, the Minister of State at the Department of Transport, about how the Bill would provide the jurisdiction which they require. They have welcomed those assurances. I see that the noble Lord, Lord Clinton-Davis, wishes to intervene. I give way.
Lord Clinton-Davis: My Lords, the noble Earl mentioned consultation. However, can he explain why the British Transport Police Federation was not consulted before the Bill was published?
Earl Ferrers: My Lords, I thought that the noble Lord was about to make a speech, as I was in fact in the process of concluding mine. No doubt the noble Lord will be able to make a speech in his own time.
In conclusion, I should like to express my gratitude to your Lordships for the understanding as regards the urgency of the Bill. I commend the Bill to the House.
Moved, That the Bill be now read a second time. —(Earl Ferrers.)
8.7 p.m.
Lord Clinton-Davis: My Lords, I must say, first, that the noble Earl's speech was a nice one. As he now distinguishes between nice and nasty speeches, I hope that he will not regard mine as a nasty one. Nevertheless, it will be a probing speech. What I tried to elicit from the noble Earl a few moments ago was
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information that I thought he would have been able to provide. It is a matter which goes to the very heart of the issues that we are now considering.
Had it not been for the intervention of my honourable friend, Mr. MacKinlay, in another place, the federation in question would not even have been told about the publication of the Bill. On the face of it, that seems to be a rather serious omission and one which requires an explanation from the noble Earl. However, in mitigation, I must say that it is not really the noble Earl's Bill; indeed, it is the Bill of the noble Lord, Lord Mackay, who is unavoidably absent tonight. I do not seek to cast great aspersions on the noble Earl for not being able to respond immediately to that point, but I hope that he will be able to do so later in the debate.
Again, while not seeking to cast blame on the noble Earl, I believe it was the Government's duty—and one which they have significantly failed to discharge—to explain to Parliament how that serious omission occurred. For example, who was responsible? I believe that an apology is due, especially from Mr. Freeman, who dealt with the matter in another place—but who, significantly, was also missing—for something that could (if the matter had not been put right) easily have led to the peril of the British Transport Police exceeding its competence and jurisdiction and no doubt suffering the possibility of being landed in damages for such an excess of jurisdiction. Whatever the situation in that regard, its cure has been left until virtually the eleventh hour. That is certainly not a satisfactory state of affairs.
The situation has to be viewed against the backcloth of a Bill which, on any showing, was pretty shabbily drafted from the word go. It was the subject of hundreds and hundreds of amendments—the overwhelming majority being government amendments—and yet this Government of under-thought and after-thought missed out this critical matter.
I claim that they were put on notice of this because on 19th July I specifically adverted to the issue of the agreements that were to be made between the operators and the British Transport Police. One would have thought that, whatever the Minister thought about the particular amendment I moved when we discussed this issue previously, he would have felt constrained to mention the matter to his colleagues in the Home Office and they would have taken the matter seriously at that time. But somehow or other it has all gone wrong. The Government have missed out this critical matter and they still owe us an explanation for that but have failed to provide it.
I suppose they were distracted by the nature of the Bill itself which was engaged in fragmenting the railways in the most complex way. The Government got into a terrible mess and they kept returning to the House with amendments. Perhaps their mind was distracted from what was nevertheless an important matter. I still fail to understand, having read with some care the debates that took place in another place, why the Government could not have said that this is a matter which is perfectly well dealt with in Scotland and therefore the same rules could have prevailed in England and Wales. Very complex reasons—if one can dignify the Minister's speech by referring to it as

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displaying cogent reasoning—were put forward as to why that was not possible, but I still think it is necessary for the Government to elaborate on why that situation could not have prevailed.
Another matter which I think is unsatisfactory is the following. We all pay tribute, quite rightly, to the British Transport Police and to its role in seeking to deal with and deter terrorism and to deal with all kinds of bogus alarms which cause so much damage to the working of the railway system, but it also does a great deal to ensure that alarms which are clearly bogus do not disrupt the system. However, we are not told why the Government have not addressed, even to this day, a number of the points which were raised in another place and which will be dealt with--therefore I shall not address those points now—in the amendments which will be discussed later but which were also introduced in another place and dealt with rather unsatisfactorily.
1 have a feeling that whatever strength the amendments may have, the Government will not entertain them at all simply because of the question of time. Why are we put in this position? Why have the Government not acted earlier when, as I said earlier, they had been put on notice about this matter a long time ago? I repeat the question that I posed earlier. Why was the federation not consulted about this Bill? Once the Government recognised that there was a problem here, it surely would have been appropriate for that federation to be asked what its opinion was about the issues. As I have said before, my honourable friend sent the Bill to the chairman of the federation and that was the first time that the chairman had even heard of it.
I wish to address another matter that was dealt with in another place which concerns so-called core activities which were to be undertaken by the British Transport Police and the non-core activities which could be delegated else where. Perhaps when the noble Earl replies to this debate he could be rather more informative as regards explaining what constitutes core and non-core activities. We understand that it will be for the Commissioner of Police to determine these matters, but what answerability will the police committee and the senior officer concerned have to this place and to another place? Is there to be any parliamentary control as regards determining those matters?
As I indicated earlier, there are other issues which we shall address in the amendments which will be discussed later. I do not wish to detain the House for longer than I have, but we look to the noble Earl to provide rather less complex argumentation than was presented by his honourable friend in another place. Frankly some of the arguments used in another place not only eluded me but certainly eluded a number of Members of that place.
Finally, I wish to deal with a matter which struck me as outrageous. This matter does not redound on a government Minister. Mr. Trotter MP, who represents the British Transport Police Federation, has said,
"It would have been much better if the whole issue"—[Official Report, Commons; 21/3/94; col. 630.]
Lord Tordoff: My Lords, I hope that the noble Lord will forgive me if I point out that he should not quote
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directly the comments of someone in another place who did not speak from the Dispatch Box. He can certainly refer to those comments indirectly but not directly.
Lord Clinton-Davis: My Lords, the allegation was made that it would have been much better if the whole issue had been decided when the Bill went through the House of Lords. That is a pretty outrageous allegation. It is as if someone is saying that it is the noble Earl's fault and my fault that we are in this position today. That is a most extraordinary allegation. The mind boggles at its maladroitness. Startlingly irrelevant though that observation may have been, I hope the Minster will recognise—I am sure he will —that a 11 of us in this House did our best to improve what was a bad Bill.1 do not think we succeeded entirely but we did our best. Certainly I do not think we should carry responsibility for it in the way that has been alleged in another place.
8.18 p.m.
Lord Tordoff: My Lords, the huge House which is assembled here tonight to hear this Second Reading will be grateful to the noble Earl and will have noted the difference in tone between the Home Office brief, in its remarks about my noble friend Lord Harris of Greenwich, and the Transport Department's remarks about my noble friend. However, that is not surprising because the relationship between those people who deal with transport affairs in this House is on the whole amicable. We welcome the noble Earl to our ranks, although I am sure that he would rather have left the House after his difficulties with the previous Bill. However, we are grateful to the noble Earl for the way he presented this Bill to the House.
Perhaps I should declare an interest straight away by saying that three weeks ago today my car was stolen from a British Rail car park and the matter is still in the hands of the British Transport Police. I hope that that will not in any way affect my judgment on this Bill because I think the British Transport Police are an excellent body of people who need everyone's support.
The Bill has been generally welcomed. I too should like to congratulate my noble friend Lord Harris of Greenwich on having persisted in this matter. Had he not done so, from 1st April the British Transport Police would have been in a very difficult position. The possibility that police officers who stepped outside the terms of the Railways Act and arrested somebody and found themselves being sued in court for a vast sum of money for improper arrest had not penetrated either the Department of Transport or the Home Office. When they realised that possibility, prompted by my noble friend, matters moved rather more quickly.
I turn to the question of the Bill passing through all its stages in another place in one day and through all its stages in this House in one day. Although we have agreed to that procedure on this occasion, we would not encourage such a procedure given the past history of Bills dealt with in that way. In these circumstances I can always beat my breast as a good former Member of the Liberal Party and now a Liberal Democrat and point to the Official Secrets Act, which was put through Parliament in 1911 in one day; we have spent the rest of

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of our lives trying to get rid of it. Therefore, we need to approach these Bills with a considerable degree of caution and be quite sure that when it is suggested that everyone is in agreement with the Bill that is the case.
I do not want to dwell further on the inadequacies of the Railways Act. The noble Lord, Lord Clinton-Davis, has rightly drawn attention to the problems that we raised when that Bill passed through your Lordships' House, some of which are now becoming apparent. It was interesting to see that yesterday the Secretary of State for Transport told the world at large that the Gatwick Express is not the jewel in the crown that we were all led to believe it was when the Bill passed through our House. Indeed, far from it being taken over by an entrepreneur from 1st April it will not be dealt with until next year. Much of what we said about the Railways Bill at the time was true.
I pay tribute to the noble Lord, Lord Clinton-Davis, because when the question of the British Transport Police was before your Lordships' House during consideration of the Railways Bill he asked appropriate questions. If the Government had listened to him they would not find themselves in the mess in which they find themselves today and we would not be having to push through a Bill in all its stages in one day.
The danger was that the public were left exposed by the Act and criminals would have been given a free rein. It would be interesting to know whose head has rolled as a result. However, heads no longer roll as a result of incompetence. We are having to paper over the cracks left in the legislation by the Government.
The Bill does what is required, but I fear only partially. I have been in discussion with the British Transport Police, who are far from satisfied with the provisions of the Bill. That is not to say that it will not do what it is intended to do. But there was an opportunity to take matters further. The British Transport Police are not remotely satisfied with the Bill as it stands.
The basic problem is the question of jurisdiction. The noble Earl rightly said that the Bill will allow hot pursuit —or even cold pursuit—of someone seen committing an offence on railway property. The police will be able to continue that pursuit into the outside world, which would not have been possible under the Railways Act as it stood.
As someone who has a flat in Pimlico, I have to say to the noble Earl that, having suggested that thieves and vagabonds would go from King's Cross to Pimlico, he ought to offer an apology to the citizens of that fair part of London lest the value of their property descends too far.
I do not know whether the noble Earl is aware that the British Transport Police have recently conducted a survey of incidents which fall clearly outside the present jurisdiction of the Act and also outside the jurisdiction of this proposed Bill. The survey shows that over a two-week period officers responded to more than 200 incidents that were clearly outside the jurisdiction of both the Act as it was and. as it will be as a result of this Bill. I believe that that was recognised by the Minister, Mr. Freeman, at the British Transport Police Federation
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conference at Torquay yesterday. The incidents arose as a result of requests from Home Office police forces or from the public, or as a result of incidents discovered by officers on patrol.
Like the noble Lord, Lord Clinton-Davis, I intend to return to that aspect in connection with the amendments which have been tabled in my name. I apologise to the House that it was not possible for them to be circulated earlier. That is one of the problems which arise from seeing a Bill in print only a day or so before it is to be debated in your Lordships' House. I hope that the fact that they are manuscript amendments (although they are in fact printed) will be accepted by the House.
The second area which I wish to raise at this stage is the question of British Transport Police service agreements. There was a great deal of discussion of such service agreements in another place. It is clear that there will be a series of different agreements but that there will be a core agreement which is common to them all. The noble Lord, Lord Clinton-Davis, rightly drew attention to the fact that those core activities have not yet been defined. One would have thought that by the time we had reached this stage of the proceedings the Government should be in a position to indicate what those core activities are. One would like to scrutinise them, and even challenge them, to see whether they are adequate.
There are some services which, because they do not pay policing costs, are exempt from licensing. One wonders about the position of the British Transport Police in relation to those areas. I refer, for instance, to BR maintenance, the rolling stock leasing companies, BR telecommunications, the freight companies and the Heathrow Express. In another place when the Heathrow Express was mentioned the Minister, Mr. Freeman, said that the Heathrow Express would be covered because of a licensing agreement relating to the British Rail track which the Heathrow service would use. It is my understanding that all of that track is not BR track and that a section of track between the British Rail track and Heathrow itself will not be covered by such a licence. One wonders what the position would be if the British Transport Police observed offences taking place on that part of the track, such as a terrorist laying a bomb, for example. Will they have the jurisdiction to cope with such an incident? As I read the Bill as it stands, they will not. They will have the right of citizen's arrest and no more. I shall return to that point later.
What worries me is that in relation to the services which will not be licensed the Government are trying to bring in privatised police forces of one kind or another to cover that kind of situation and the British Transport Police will be excluded.
That is why it is essential that we go a little further tonight into this whole business of the jurisdiction of the British Transport Police. Of course we shall make sure that this Bill gets on its way with due dispatch because it is essential. But I do not believe that the opportunity has been taken to repair situations which could have been repaired. I am not sure that even now the Department of Transport and the Home Office have thought through the consequences of the Bill. I hope that this is not another occasion when a Bill is rushed

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through both Houses of Parliament and within six months, a year or five years we find it inadequate to deal with the problems found by the British Transport Police.
8.30 p.m.
Earl Ferrers: My Lords, first, perhaps I may commiserate with the noble Lord, Lord Tordoff, for the fact that he had his vehicle stolen from British Rail premises. Whenever a vehicle is stolen, and when it is one's own vehicle, it is enormously distressing and my sympathies go to the noble Lord for that experience. He castigated me for referring to what might happen if someone pinched some item from King's Cross and went to Pimlico, as if such things did not happen. I merely sought to give an example which some noble Lords might readily understand. If I imputed any motives to the residents of Pimlico, of whom I am one, I of course withdraw that. I ask the noble Lord not to use his imagination, which is prolific, to quite the extent that he has.
The noble Lord referred to remarks that I made about his noble friend Lord Harris of Greenwich. The noble Lord, Lord Tordoff. said that it was interesting that the Department of Transport brief with regard to his noble friend was different from the Home Office brief. I can tell the noble Lord that in neither case did I have a brief about the noble Lord, Lord Harris of Greenwich. My remarks were entirely my own. The reason why they were so courteous in relation to this Bill was because the noble Lord, Lord Harris of Greenwich, did a great service of which we were appreciative. The reason why the remarks were so horrible in relation to the earlier Bill was because the noble Lord, Lord Harris of Greenwich, had produced some horrible amendments and deserved every bit of castigation that he received!
The noble Lord, Lord Clinton-Davis, could not resist having a go at the Government for the fact that the Bill was produced in a hurry. I do not blame him for that. It is his privilege and his prerogative. I dare say that, had I found myself in his position—I am bound to say that I am unlikely to do so for a very long while—I might have used the same argument. The noble Lord asked: "How has this mistake occurred and why have we not received an apology ?" The fact is that, periodically, errors arise and lacunae in legislation are found. No one intends a lacuna to appear. However, one appeared on this occasion. Therefore we considered it appropriate to produce a remedy as quickly as possible.
The noble Lord asked why on earth we did not consult with the British Transport Police Federation. I can understand the desire to consult. We normally consult as much as possible on all matters. However, as noble Lords will appreciate, in this case the legislation had to be produced quickly. There was little time between the decision to bring forward a Bill and the Bill being introduced in another place. There was not time to consult on the details. However, my right honourable friend the Minister of State in another place consulted with the chief constable and the deputy chairman and chairman of British Rail. L hope that the noble Lord will realise that no offence was intended. It was simply lack of time.
Lord Clinton-Davis: My Lords, I am grateful to the noble Earl for allowing me to intervene. I do not suggest that the Government acted in bad faith. The noble Earl would not know about this, but I can assure him that throughout the debates on the Railways Bill we urged that even in situations of emergency it was necessary to consult. With respect, I cannot accept the suggestion that it would have been impossible in these circumstances to do so. It would have been quite possible for the Department of Transport to have got in touch with the federation and to have said, "Please come in. We have this urgent problem. We should like to discuss it with you". I am sure that the federation would have responded. That was not done. Yet discussions took place elsewhere, as the noble Earl said.
I do not wish to press the matter further. The noble Earl has no responsibility in this regard. However, I wish to put clearly on the record that the lack of consultation was a serious omission.
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Clinton-Davis, for saying that he will not press the matter further. I accept that, where one can consult, one should do so. If one had consulted nobody, the castigation from the noble Lord would have been even greater. The fact that one has consulted with some persons and not others makes the noble Lord ask, "Why did we not consult all of them?" I accept the castigation. I am grateful to the noble Lord for his understanding of the situation.
The noble Lord, Lord Clinton-Davis, was also worried about the jurisdiction problem. Until earlier this year, the Government, the board and the British Police Federation were not aware of the specific problem which gives rise to the loss of jurisdiction which the Bill corrects. Noble Lords will recall that the noble Lord, Lord Harris of Greenwich, raised the issue not long afterwards in your Lordships' House. The Government are aware of a wider concern about the powers of the British Transport Police to act other than in connection with railway matters, for example, in assisting other forces. But that is not a matter for this Bill, which is aimed simply at maintaining the current jurisdiction.
The noble Lord, Lord Clinton-Davis, was worried about whether there will be any reporting to Parliament. The committee is set up under a statutory scheme by the Secretary of State for Transport. The employer is British Rail. That is a role which British Rail exercises under the auspices of the police committee. It is not a role which requires reporting to Parliament.
Both noble Lords were concerned about core police activities. The police committee will set down core policing activities. Those will include services relating, for example, to such items as safety, anti-terrorism, prevention and detection of crime, the keeping of the peace, the bringing of offenders to justice and the rendering of support to victims of crime. All that reflects the current situation. With regard to non-core policing activities, the operators will have freedom not to use British Transport Police, for example, for static guarding of premises or goods, the supervision of car parks, the escort of high value loads, and so forth. That, too, reflects the current position.

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The noble Lord, Lord Tordoff, was also concerned about the Heathrow Express. On that I believe that he is wrong. Although the Heathrow Express route will be partly licence exempt in respect of its own private track which links Heathrow to Railtrack's main line, it will need a passenger licence. That licence will contain a condition for the British Transport Police to cover passenger services over the whole route.
Lord Tordoff: My Lords, I am grateful to the noble Earl for that explanation. However, perhaps I may return to the core situation. A problem faced in another place was not that core activities could not be defined but where a different licence had been put into effect for different places. At present British Transport Police know exactly where they stand. They are dealing with railway property wherever it is. The core activities are the same. Some of the peripheral activities will remain the same. However, if one has different licences dealing with different factors at the margin, the danger—I am sure that it was felt by Members of another place—relates to how the British Transport constable knows when he is stepping outside his jurisdiction. That is why it is not so much the core problem but the responsibilities outside the core that could lead to confusion in the future. That is why we question the matter.
Earl Ferrers: Yes, my Lords, I believe that I understand the noble Lord's anxiety. But all the licences will, when issued, require the same kind of service. Therefore, when a licence is issued, the people who obtain it will know the service they will receive. The noble Lord, Lord Tordoff, was concerned about the constable and how he will know where he is when he is patrolling. That is a matter for the operational instructions given by the chief constable. The constable has to know where he is entitled to carry out his work and where his responsibility ends. That information will have to be given to the constable by his superiors.
The noble Lord, Lord Tordoff, referred to one other point: the wider jurisdiction of the British Transport Police. It is a separate issue from the present Bill. We are aware of the wider concern about the powers of the British Transport Police to act other than in connection with railway matters; for example, assisting other forces. That is often referred to as "the Bishopsgate problem" when British Transport Police officers were first on the scene after the Bishopsgate bomb. It is not a matter for the Bill, which is aimed simply at maintaining the current jurisdiction. I know that the British Transport Police have provided the Department of Transport with detailed and quantified information about the matter. The Department of Transport will in turn take it up with my department to see how and whether it can be addressed. Clearly, it is a matter relating to wider police powers in general and is being addressed but it does not strictly come under the Bill.
I hope that I have answered the majority of questions posed by the two noble Lords. I see that I have not.
Lord Clinton-Davis: My Lords, before the noble Earl sits down, I apologise for the omission, I should
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have raised this point earlier to give him more time to consider the matter, but it is important that I raise it now. The point was raised by my honourable friend Mr. Brian Wilson in another place referring to the transport police services agreement. He argued that the word "agreement" implies that the two parties concerned have to agree about something. He went on to argue that there could be some inconsistency between an agreement with one operator and another agreement affecting other operators. The Minister wrote to David Rayner, the chairman of British Transport Police, saying:
"Since all licence holders referred to … must have an agreement approved by the Secretary of State for the provision of core police services determined by the Police Committee, you have my assurance that the Secretary of State will ensure consistency of agreements".—[Official Report, Commons, 21/3/94; col. 73.]
It suggests that consistency is not the same as similarity in all respects. I should have thought that it was extremely important to have that degree of similarity.
Who will undertake the task? It seems to me, having regard to the large number of operators concerned, it will be quite an onerous task to scan each agreement to ensure that there is a measure of consistency. Could not a form of words be introduced to ensure that consistency equates with being exactly similar?
Earl Ferrers: My Lords, I shall have to take note of what the noble Lord, Lord Clinton-Davis, said. It seems to me that it is somewhat a matter of semantics. Obviously there is consistency of agreements; indeed there must be. But the agreements have to be tailored to the requirements of the individuals. The agreements will be approved by the Secretary of State, and he will only approve them where they are for the same core services. Obviously, they have to contain sufficient consistency that allows them to be applicable across the board, but they would need to be tailored to the individual case. However, I shall certainly look at the point which the noble Lord has raised. I commend the Bill to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 21st March):
Lord Annaly: My Lords, I beg to move that the House do now adjourn during pleasure—
8.45 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD SKELMERSDALE in the Chair.]
Clause 1 [Amendment of the British Transport Commission Act 1949]:
Lord Tordoff Lord Tordoff moved Amendment No. 1:
Page 1, line 21, leave out from ("elsewhere") to end of line 31 and insert ("but only for the purposes of—

(i) carrying out investigations; and

(ii) arresting any person— —

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(aa) whom he has followed from, or from the vicinity of, arty such premises, in circumstances where that person could have been arrested in, on, or in the vicinity of, such premises; or

(bb) who is in possession of goods or money which the constable reasonably believes to have been stolen from or from the vicinity of, any such premises or from the custody of the transport police.").

The noble Lord said: I beg to move Amendment No. 1 and to speak to Amendment No. 2. I thought for a second that we were moving directly to Royal Assent and I am glad that we have avoided it. In welcoming the noble Lord, Lord Annaly, to the Dispatch Box, I am glad that it is not the position that the Bill is moving straight to Royal Assent. I am sure that the noble Lord's friends will assist him in the matter.
The amendments are intended to tease out further some of the matters we have been talking about on jurisdiction. As I understand it, the situation in Scotland is different from that in England. In Scotland, a member of the British Transport Police has jurisdiction by virtue of being a constable in precisely the same way as a constable in any other police force is entitled to carry out his duties.
I suggest to the noble Earl that the reason we have the argument about core activities and secondary activities is that the rights of the British Transport policeman as a constable are restricted in England and Wales as they are not in Scotland. The simple way out of the problem that we face on the core and other activities is to say that we should have the same arrangements south and west of the Border as in Scotland. That is what the amendments seek to achieve.
One accepts that the Bill as it now stands gives the constable the right, when he sees persons doing some deed on railway property, to pursue them and to go some distance or as far as he needs to interview and arrest them if necessary. As I understand it, it is possible for a constable who may believe that an offence is about to be committed—for example, that a terrorist is about to plant a bomb on a railway line—to follow that person back to police property. However, if the felon plants the bomb on a petrol station instead of a police station the constable does not have the right of a constable to arrest. He has the right only of an ordinary citizen.
In that situation a person is going round in police uniform; to the general public he looks exactly the same as any other policeman. Someone may, for example, rush up to him and say, "Constable, constable, come and do something. An affray is going on". The constable has to say, "No, I'm sony. I'm not allowed to do that. I am only a constable when crimes have been committed on railway property or are related to railway property". That cannot be right. Apart from anything else it is something of an offence to the ability of that excellent police force, which, as my noble friend Lord Harris has said several times, is one of the larger police forces in the country. That is the basis of the amendments that I have put down tonight. It seems to me that the way the Government can gel off the hook in relation to those core arid non-core activities, and the way in which the British Transport Police can be given the ability to carry
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out their duty as normal constables across the length and breadth of Great Britain, is through one or other of these amendments.
I accept that that goes further than the position of the British Transport Police at the moment. There is nothing new in the position as it stands if this Bill goes through as it is currently presented. But here is an opportunity to tidy up a very important anomaly which faces the British Transport Police. I hope that the Government will at least respond, not necessarily to accept these amendments tonight —I know that there are all sorts of pressures upon them to get this Bill through as fast as they can so that it receives Royal Assent before the Commons rises at half-past 10—but to give at least an indication that they recognise that there is a serious problem here and that they will find some way of correcting it in the future. I beg to move.
Lord Clinton-Davis: I rise to support the amendment of the noble Lord, Lord Tordoff, which was not simply consistent with, but precisely similar to, the amendment moved by my honourable friend Mr. Frank Dobson in another place.
We shall now no doubt hear from the Government an explanation as to what causes the noble Earl to resist this amendment. What the noble Lord, Lord Tordoff, arid I are looking for, knowing that the Government are implacably opposed to entertaining any amendment to the Bill, is at least an assurance that these issues will be looked at and will be capable of being dealt with in another Bill. Indeed, there is a vehicle that is available to the noble Earl in the shape of a Bill which is to come to this House very shortly, namely, the Criminal Justice Bill. It is therefore wholly appropriate if we look to the noble Earl to give us an assurance that the Government will at the very least examine the proposition that this amendment, and indeed the one that follows, will be considered very carefully in the light of that legislation.
The noble Lord, Lord Tordoff, made out a case of some substance for that to happen, even if this may not be considered by the Government to be the right vehicle for it. I am always suspicious about the vehicular argument which Ministers introduce and which I myself used from time to time in the past, in the halcyon days. To recognise the reality of the matter, the Government will not accept any amendment now. We hope for some positive views from the noble Earl as to how the Government might be able to consider accommodating this proposal in some further legislation.
Lord Harris of Greenwich: This is a matter of some importance, as I am sure the noble Earl, Lord Ferrers, will recognise. It is not a new issue, as has been made clear. It seems to me to be something of an absurdity that a force as large as the British Transport Police should have this limitation on its powers in the sort of situation that was outlined by my noble friend Lord Tordoff.
To take up a point that was made by the noble Lord, Lord Clinton-Davis, it seemed to me on the basis of the discussions that I had with Mr. Freeman and his colleagues at the Department of Transport that if this Bill had not been introduced in its present form, the other option would have been to incorporate its

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proposals in the Criminal Justice Bill. The Government rightly decided not to do that because of the delay that would be involved. I welcome that decision. Indeed, I urged the Government not to travel down that particular path. They did not do so, and I am glad that they did not do so. But it is quite clear that an amendment along these lines (I recognise that the Government will not accept this amendment tonight) could be introduced to the Criminal Justice Bill when it arrives in this House. I urge the noble Earl to be in a position at that time to respond, I hope positively, to an amendment on these lines.
Earl Ferrers: I am grateful to Members of the Committee for explaining the amendment and the concerns which they have. One always gets difficulties when one starts trying to define what are the responsibilities of police officers who do not form what might be described as part of the national policing system. The British Transport Police are a peculiar force in so far as they are peculiar to British Rail and all that goes with it. In that respect, their powers and responsibilities relate to British Rail property, tracks, stations and so forth.
I can understand the noble Lord, Lord Tordoff, saying that if a British Transport police constable finds a person putting a bomb, not on a station but in somebody's garage or in a petrol station, he ought to be able to do something about it. That is understandable. But it sets that constable's remit very much wider than the remit that he has, namely to look after British Rail property.
The noble Lord asks why we cannot do in England and Wales what is done in Scotland. The fact is that Scottish law is different to English law. We often get that problem when comparing the jurisdiction and the jurisprudence of the different countries north of the Border and south of the Border. The Scottish provisions have stood since 1980. They reflect the fact that the law and jurisprudence in Scotland are different to England. We cannot simply insert Scottish wording into English law because it may be interpreted entirely differently and have an unintended effect.
The Bill gives jurisdiction in England and Wales for constables in all matters concerned with or affecting licensed railway operators for whom the services of the transport police would be provided to maintain law and order on the railway. That is the function of the British Transport Police. The jurisdiction in Scotland is not affected by the Railways Act. It will continue after 1st April as it does now. It does not therefore need to be addressed in the Bill.
I am aware, however, of a wider concern about the powers of the British Transport Police to act other than in connection with railway matters. I say only that this Bill would not be an appropriate vehicle for it. I know that Members of the Committee do not intend that the amendments should be put into the Bill. I know that the British Transport Police provided the Department of Transport with detailed and indeed quantified information about the matter. The Department of Transport is, in turn, taking it up with my department to see if and
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how the issue can be addressed. Clearly this is a matter which relates to wider police powers in general. I shall certainly see that the matter is looked at. I hope that the noble Lord, Lord Clinton-Davis, will be satisfied with that.
The noble Lord, Lord Harris of Greenwich, asked whether we could incorporate an amendment in the Criminal Justice Bill. Perhaps the noble Lord will be content for me to say: well, we must see. The noble Lord will also know that the Criminal Justice Bill has increased enormously in size while it has been in another place. In view of the strictures voiced when the previous Bill was going through this House about the length of Bills and the amount of legislation, the noble Lord will understand that there is a certain reaction not to make the Criminal Justice Bill even longer than it already is. I will see that the point is taken into account. I will also see that I am adequately and suitably briefed to answer the noble Lord's amendment if he intends to put it down, which perhaps he may not.
Lord Tordoff: I am grateful to the noble Earl for those remarks. I hope that he will not hide behind the size of the Bill as an excuse for not doing what is sensible. The size of Bills has not inhibited the Government in the past and no doubt it will not do so in the future. Similarly, I hope that the Government will not hide behind the suggestion that Scottish legislation is different. Indeed, it is different and sometimes it is better. If this system has been operating successfully in Scotland since 1980, that seems to me a good reason to say that it has been a very useful test patch for introducing the legislation into the rest of Great Britain.
The noble Earl said that the British Transport Police were not part of the national policing network—I think those were his words. I am sure that he did not intend that to be in any way derogatory to the British Transport Police. Admittedly, they have a separate function, but they are very much a part of the total police network in this country and, as my noble friend said, they comprise 20 per cent. of the total police force.
Earl Ferrers: Perhaps I may interrupt the noble Lord. He is quite right to pull me up on that point. I was searching for a form of words which would avoid saying "part of the national police force". In view of our last debate, that would have been an unfortunate choice of words. If I did not choose the correct form of words, the noble Lord, Lord Tordoff, at least understood what I meant.
Lord Tordoff: I am grateful to the noble Earl. I am sure that the British Transport Police will understand. They are people who are trained to the same standards as the rest of the police force and, indeed, in the same establishments.
As has been said, we did not expect the Government to accept this amendment tonight. I am grateful for the fact that the noble Earl indicated that the Government are listening to the problem. I believe that it is a problem that could be put right quite simply. I hope that, by the time we come to discussions in this Chamber of the Criminal Justice Bill, both the Department of Transport and the Home Office will have seen the sense not of

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what I, the noble Lord, Lord Clinton-Davis or my noble friend Lord Harris say but of what the British Transport Police themselves say; namely, that they could do a better job with a fairly simple change in their jurisdiction. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 1 agreed to.
Remaining clause and schedule agreed to.
House resumed: Bill reported without amendment; Report received; Bill read a third time, and passed.
Lord Annaly: My Lords, I beg to move that the House do now adjourn during pleasure until 13 minutes past nine—in other words, in 10 minutes time.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 9.3 to 9.13 p.m.]

Royal Assent
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts and Measure:

Consolidated Fund Act,

New Towns (Amendment) Act,

Mental Health (Amendment) Act,

Insolvency Act,

Transport Police (Jurisdiction) Act,

British Railways Order Confirmation Act,

British Railways (No. 2) Order Confirmation Act,

British Railways (No. 3) Order Confirmation Act, Pastoral (Amendment) Measure.

House adjourned at a quarter past nine o'clock.