Lords Sitting of 29 November 1994

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.

The Lord Bishop of Durham
Anthony Michael Arnold, Lord Bishop of Durham—Was (in the usual manner) introduced between the Lord Bishop of Chelmsford and the Lord Bishop of St. Albans.
Lord Sandhurst Lord Sandhurst —Took the Oath.

Indonesia: Arms Sales
2.44 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they will immediately cancel all current and planned arms deals with Indonesia including related deals such as military bases and road construction.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, we have no plans to do so. As always, the export of military equipment is looked at on a case-by-case basis.
Lord Jenkins of Putney: My Lords, I thank the Minister for his response to the Question, to which, of course, I did not expect to receive an affirmative Answer. However, it gives me the opportunity to ask the noble Lord whether he recalls that last month the Chief of the Defence Staff, Field Marshal Sir Peter Inge, visited the Indonesian leader and was quoted in the Jakarta Times under the heading,
"[Indonesia and] Britain forge closer defense ties",
as saying:
"We are looking to sell certain things like Hawk aircraft and Scorpions (armoured vehicles)".
Does the Minister also recall that, in the report, the Hawks are described as "ground-attack fighters", and that the Indonesian general who accompanied the Chief of Staff during his interview with President Suharto is quoted as saying that the issue of human rights "was not touched on"? Does that report accord with the position in relation to Indonesia which the Government have outlined to the House from time to time?
Lord Henley: My Lords, as regards the noble Lord's last point, I believe that the Indonesian authorities are well aware of our concern for human rights. I can assure the noble Lord that representations have been made to the Indonesian Government about those concerns at the highest level. I can also assure the noble Lord that assurances have been received from the Indonesian authorities at the highest level that British equipment
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will not be used against the civil population. I can further assure the noble Lord that we have no evidence of British equipment being so used.
As regards the visit of the Chief of Defence Staff, I can tell the noble Lord that discussions covered a range of equipment and topics of mutual defence interest. Details of the negotiations are commercially confidential between the customer and the supplier. However, I can assure the noble Lord that the export of military goods from the UK has been, and will continue to be, subject to export control which takes into account both defence and foreign policy, as well as human rights issues.
Lord Avebury: My Lords, does the Minister agree that arms sales to Indonesia are governed by the set of principles that were agreed by the CSCE on 23rd November 1993, and that they not only enjoin us not to sell arms where they might be used in violation of human rights against the civil population, but also where they might contribute to an arms race in the sub-region? Against what external enemy could Indonesia be building up such a formidable arsenal? Further, is not one of the consequences of arms sales by the United Kingdom and others to Jakarta that neighbouring countries such as Malaysia, the Philippines and Australia will also be compelled to increase their military expenditure?
Lord Henley: My Lords, the Indonesian Government have a right to purchase arms under Article 51 of the UN Charter. As regards individual exports of arms, I can only tell the noble Lord that we consider export licence applications on a case-by-case basis in the light of established criteria. In addition to our own national security considerations, those criteria will include the common criteria for arms transfers agreed by the EU partners in 1991–92, the P5 guidelines of 1991, and the principles governing arms transfers, mentioned by the noble Lord, which was agreed by the CSCE in 1993. We would reject any applications which in our view—and I repeat, in our view—would not be consistent with those criteria.
Lord Judd: My Lords, does the Minister agree that this is not just any human rights story? It is the story of 200,000 people who have perished in East Timor since the Indonesian invasion. How do the Government reconcile their position on human rights with being a principal supplier of arms to that regime? When the Minister says that he has no evidence of the equipment that we supply being used against the Indonesian people, can he actually give the House a guarantee that that has never happened?
Lord Henley: My Lords, when I say I have no evidence, that is exactly what I mean by those words. I obviously cannot give a guarantee if I have no evidence. All I can say is that there is no evidence, but that we have received assurances from the Indonesian authorities that arms have not been used to that effect. I recognise the noble Lord's concerns. Indeed, we recognise that the human rights situation in Indonesia and East Timor is by no means perfect. There obviously have been recent setbacks. We do believe, though, that

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the human rights record has shown a degree of improvement since the 1960s and 1970s. I have to say to the noble Lord that I suspect if we simply severed all links with the Indonesian Government we would by so doing surrender all influence over them whatsoever.
Lord Redesdale: My Lords, is it coincidence that since 1986, when Britain became the major supplier of arms to Indonesia, the British aid budget to Indonesia has doubled?
Lord Henley: My Lords, as I made clear, and as my noble friend Lady Chalker made clear in the debate that I think the noble Lord spoke in some week ago, there is absolutely no link whatsoever between arms sales to Indonesia or anywhere else and our aid programme, and I cannot repeat that point enough.
Lord Mayhew: My Lords, nevertheless if the Indonesian Government can afford to pay these vast sums for arms, can they not also afford to dispense with our overseas aid?
Lord Henley: My Lords, as I made clear, I believe the Indonesian Government have a right under Article 51 in terms of their own self-defence to purchase arms. There are many other poor countries, or even poorer countries, that find it necessary to buy arms for their self-defence. I do not believe that Indonesia is in such a position that we could deny them aid purely on the grounds for example that their per capita income was above a certain level.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that it is obviously unreasonable to ask for the breaking of all links with Indonesia? But is he also aware that the fact that our trade with that country so largely consists of armaments is the source of very considerable disquiet which I think is not confined to the Opposition Benches in the House? Can the Government at least say that they will not seem to go out of their way, as they are at present, to increase the arms trade at the cost of other forms of trade?
Lord Henley: My Lords, I do not think I can take the noble Lord any further. As I said, we shall continue to consider any application for arms sales on a case by case basis, and obviously we shall take human rights concerns as well as all other criteria into account.
Lord Rea: My Lords, does the noble Lord not feel that this is breaking the principle that arms should not be sold to regimes which have a poor human rights record? I am not only thinking about East Timor, but over the whole of the many islands of Indonesia there are instances of appalling human rights activities by the government and restriction for instance of trade union rights and freedom of the press. Should we be selling arms at all to such a regime?
Lord Henley: My Lords, I cannot take the noble Lord any further. As I said, human rights is one of the criteria that will be taken into account.

Diplomatic Service: Civil Service White Paper
2.53 p.m.
Lord Allen of Abbeydale Lord Allen of Abbeydale asked Her Majesty's Government:
What action they are taking to apply to the Diplomatic Service the proposals set out in the White Paper The Civil Service: Continuity and Change (Cm 2627).
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the White Paper recognises that the Diplomatic Service is a separate branch of the public service with its own particular needs and structure. My right honourable friend the Foreign Secretary is considering the parallel action to be put in hand to cover the areas considered in the White Paper.
Lord Allen of Abbeydale: My Lords, I am much obliged for that Answer, although I am a little bit surprised that we have not yet had any detailed statement of what is proposed given that the White Paper on the Civil Service was issued in July. We have not been told what the Government's response is to the comments which they invited on the White Paper. We now have to digest the long report of the Treasury and Civil Service Select Committee from another place which has just been issued. It will not be all that long before we get the first report from the Nolan Committee and one day presumably we shall get the Scott Report. All of these bear directly on the role of the Civil Service, including the Diplomatic Service. Are the Government holding back on final decisions until all this information is available or are they steaming ahead, as it were, and if so could we somehow be told in some detail just what is going on? Are we to be given an opportunity at a fairly early date of debating these issues, which are not without importance?
Baroness Chalker of Wallasey: My Lords, the noble Lord's Question was about the Diplomatic Service. I would say to the noble Lord, who has long experience in Civil Service matters, that it is quite right that the Government should consult widely on the White Paper. Indeed it is quite right that the Foreign and Commonwealth Office is undertaking a wide-ranging and thorough review of the senior management structures, evaluating every senior post. This review will consider similar scope for de-layering for the Foreign Office as has been found possible in other areas. But I do not think we should rush this exercise when it is of such importance to so many people in our excellent Civil Service.
Lord Campbell of Croy: My Lords, is my noble friend aware that open competition and transfers for limited periods are not easy to arrange for the Diplomatic Service because members of it at the beginning have to sign that they will be prepared to be sent anywhere, usually to insalubrious places, and their wives and families have to be prepared for that? As regards the Civil Service or industry, wives are often teaching at local schools or carrying on other careers of

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their own. After the Plowden and Fulton Reports cross-fertilisation was tried and has been successful, but it is limited by the factors which I have just described.
Baroness Chalker of Wallasey: My Lords, my noble friend is absolutely right, but we welcome the opportunity to have members of industry serving both in the Diplomatic Service and indeed in the Civil Service as a whole. We also welcome the exchanges that are taking place between the diplomatic services of member countries in the European Community. However, my noble friend is absolutely right in saying that, because the Diplomatic Service needs to recruit and retain people who are willing to be sent anywhere in the world at short notice, we have more difficulties in such recruitment, but I am glad to say that the applications always far exceed the number of places that we have.
Lord Richard: My Lords, I wonder whether the Minister can help us a little more. I do not say this in any spirit of criticism—not great criticism anyway—of the Government's position, but I do not quite understand what is happening. The Government produced a White Paper on the Civil Service and presumably took quite a lot of time to think about it before doing so. They state in that document:
"The Secretary of State for Foreign and Commonwealth Affairs will be putting parallel action in hand".
It does not state that he is considering action, but that he will,
"be putting parallel action in hand to cover the areas considered in the White Paper".
Are we to be told what the parallel action is? Are we to have another White Paper dealing with the position of the Diplomatic Service? Will a statement be made? How will it be done?
Baroness Chalker of Wallasey: My Lords, I thought that I made clear in answer to the noble Lord, Lord Allen of Abbeydale, that we are already undertaking the review of the senior management structures, and also of grading arrangements and the machinery required for pay delegation, and preparing an efficiency plan. The Foreign and Commonwealth Office administration will take on responsibility for pay and grading from 1st April 1996, and we are exploring ways of bringing the Diplomatic Service and the Home Civil Service staff onto a similar footing and of improving career opportunities both for the fast stream and the main stream. I mention the Home Civil Service because I think it is important that we also have exchanges between the Diplomatic Service and the Home Civil Service where that will work. Many Home civil servants go and do most valuable work for us in our posts abroad. There may not be another White Paper, but I would say to the noble Lord that we are clear that we must continue our rigorous inspection system and that we must stand by our staff who, as my noble friend Lord Campbell of Croy said just now, have a difficult job to do in some of the posts in the world to which we send them.
Baroness Rawlings: My Lords, how is the Diplomatic Service responding to change in the
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international situation, especially with regard to the ex Soviet Union and especially with regard to the need to hold down public spending?
Baroness Chalker of Wallasey: My Lords, my noble friend is quite right to ask this question. The Foreign and Commonwealth Office has made considerable progress as regards doing more for less. We have achieved greater efficiency through our rigorous inspection system. The objective is to redeploy resources to frontline diplomatic work while at the same time holding down our running costs. By doing this we have been enabled to open 21 new posts since 1990, nine of which are in the former Soviet Union.
Lord Bridges: My Lords, does the noble Baroness agree that in introducing into the Diplomatic Service the changes outlined in the White Paper of last July we are not dealing with simple and minor administrative changes but with issues of some constitutional importance, such as the selection of ambassadors for the most senior posts, the professional competence of such people and their political neutrality? Does she also agree that we should pay heed to the example of the United States, where political patronage has operated extensively, to the great disadvantage of the efficiency of the United States foreign service, and that we should be very careful to avoid such a situation arising in this country?
Baroness Chalker of Wallasey: My Lords, I certainly agree with the noble Lord that this is not a simple matter and that the appointment of senior diplomats is of major importance. I believe that we do have a politically neutral Diplomatic Service and Home Civil Service, and so they should remain. These are matters which are very much in our minds in conducting the review.

European Union: Financial Arrangements
3 p.m.
Lord Benson Lord Benson asked Her Majesty's Government:
Having regard to the statement in the Queen's Speech on 16th November 1994 that they will promote budgetary discipline in the European Union and combat fraud, what proposals they will initiate to achieve that purpose.
Lord Henley: My Lords, the United Kingdom has been in the lead in pressing for improvements to the Community's financial arrangements. We secured important improvements in the Treaty on European Union. At the recent Anglo-French summit at Chartres the Prime Minister suggested a number of areas where the Community needs to improve its performance in dealing with fraud. I expect him to pursue these at the European Council in Essen next month.
Lord Benson: My Lords, does the noble Lord believe that this difficult subject could be approached by a three-pronged attack? First, it should be recognised openly that the Commission is not in a position to prevent those financial misdemeanours which take place

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throughout the Community, and particularly in the member states. Secondly, for that reason, does he agree that what is needed is a comprehensive reform of the whole of the financial administration of the Community which embraces not only the Commission but also the member states, as a single exercise? Thirdly, so far as I know the only institution in the Community which could set that in hand is the European Council of Ministers, which will have to undertake a great deal of painstaking inquiry and will need a great deal of independent professional advice. Has the noble Lord any other workable solution in mind?
Lord Henley: My Lords, I suspect that Question Time is not the time for me to answer in great detail the various points that the noble Lord makes, because I would use up not only the remaining 12 minutes available to the House for Question Time but a great deal more time thereafter. The noble Lord makes some very interesting suggestions. Perhaps I may take the first one, in which I suspect that he was suggesting an increase in the Commission's own extra powers. Obviously that is a matter which could be considered as part of the attack on fraud, but member states themselves would have to recognise that in so doing they would have to expect much greater intrusion into their own affairs. I am not sure whether that would be acceptable to all member states.
All that I can say to the noble Lord is, I repeat that the United Kingdom Government are absolutely committed to the fight against fraud and to good financial management within the Community. We shall continue to fight through the Council of Ministers and through other means for such improvements. We are beginning to see some improvements. But as the House's own Select Committee made quite clear, any such improvements are very much a long-term policy and would take quite a long time to bear fruit.
Lord Bruce of Donington: My Lords, the noble Lord has spoken of the efforts made by Her Majesty's Government in this respect at the level of the Council of Ministers. Is he aware that at approximately 25 minutes past 5 o'clock yesterday Mr. Norman Lamont, the former Chancellor of the Exchequer, gave his account of what happens when matters are raised? I quote from what he said.
Noble Lords: Order! Paraphrase!
Lord Bruce of Donington: My Lords, he is an ex-Minister. However, in effect, he said that he opened the discussion. A large number of Ministers did not turn up. Some of those who did turn up read newspapers. For some reason or other, Mr. Delors intervened in Council to reprove Mr. Lamont for having raised a political matter at the Council of Ministers. Thereafter the discussion terminated.
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In those circumstances, is it wise for Her Majesty's Government to agree, and to insist through another place, that an extra £18 billion be paid over the next six years into Community funds when the Community is quite incapable of controlling its expenditure properly?
Lord Henley: My Lords, again I do not think that now is the time to discuss the own resources decision and last night's debate in another place. We shall certainly have our opportunity to discuss the matter in due course. Nor do I intend to follow the noble Lord in discussing what my right honourable friend may or may not have said in another place yesterday. I am afraid to say that I have not actually read what my right honourable friend had to say.
Perhaps I may make one brief point about the fight against fraud; namely, what was agreed in Copenhagen. It is very valid. It was agreed by all member states that it was in their own interests to pursue fraud because if they did not do so—and they were in the best position to pursue the fight against fraud—the very reputation of the entire Union would be called into question by all those individual citizens in the Community. Therefore, I hope that in due course every single member state will pursue this policy with the same vigour as Her Majesty's Government.
Lord Clark of Kempston: My Lords, does my noble friend agree that the more effective control of public expenditure in Europe would be greatly increased if a committee were set up similar to the Public Accounts Committee that we have in this Parliament? Further, does he also agree that the Court of Auditors in Europe should model itself on our National Audit Office which places emphasis on value for money?
Lord Henley: My Lords, my noble friend makes very interesting suggestions. But as I said to the noble Lord, Lord Benson, I do not think that Question Time is the time for Her Majesty's Government to respond in considerable detail to what are perfectly valid suggestions that may or may not have advantages.
Lord Eatwell: My Lords, will the noble Lord confirm what Sir John Cope, the then Paymaster General, wrote to my honourable friend Mr. Andrew Smith last year? He wrote:
"It is correct that the UK does not take up the money that the Commission allocates to us for anti-fraud work".
In the light of Sir John's admissions, is not the Minister's statement that the Government are committed to fighting fraud totally worthless?
Lord Henley: My Lords, I start by saying to the noble Lord what I heard in an aside from one of my noble friends: absolute nonsense. The noble Lord takes the simplistic socialist view that merely by spending money on a problem one can resolve it. I do not believe that money is the only answer. The best answer is for all member governments to have the appropriate attitude. Her Majesty's Government will continue to set a lead in this matter and encourage other member governments so to do.
Lord Richard: My Lords, will the Minister confirm that the Government are not taking up moneys which

541
are available from the Commission in order to combat fraud? That was said in the other place yesterday by a Government Minister. Will the Minister be pleased to confirm it?
Lord Henley: My Lords, I was not denying the veracity of that letter from my right honourable friend the former Paymaster General. I was saying that the party opposite has a very simplistic view about how to go about things.
Noble Lords: Order, order!
The Lord Privy Seal (Viscount Cranborne): My Lords, I am, as always, in the hands of the House. I observe that we have one more Question. I wonder whether your Lordships might feel that the time has come to move on.

Crime Prevention: Children and Young People
3.10 p.m.
Baroness David Baroness David asked Her Majesty's Government:
Whether, in view of public concern at the levels of violence to and by children and young people, they have any plans for improving co-ordination of research and action to reduce and prevent such violence.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, Her Majesty's Government share public concern about violence to and by children and young people and remain determined to take concerted action against all crime. The strategy on crime prevention and partnership is being developed on a broad front both at a national and local level and a number of interdepartmental groups are in existence to provide a forum for co-ordination on this matter.
Baroness David: My Lords, I thank the Minister for that Answer. However, is she aware, and are the Government aware, that there is much concern about the operation of the child protection committees, the lack of any statutory basis for them, and the lack of resources to enable them to do preventive work? Are the Government reviewing the status and function of those committees? Does the noble Baroness realise that the most recent report, the 1993 Children Act Report, found that in some local authorities high numbers of children on child protection registers had no social worker allocated to them? Is that not a highly dangerous situation which must not be allowed to persist?
Baroness Cumberlege: My Lords, although area child protection committees are not on a statutory basis, they have been established in all social services departments. There are 108 local committees. They do very good work indeed, and we support them. But we do not necessarily fund them centrally. Often they are funded by the police, the social services department, health authorities and education committees. We believe that that is the good idea because it strengthens their commitment.
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With regard to cases not allocated to social workers, we carried out a survey in 1992. We found that 97 per cent. of children on the register had an allocated social worker. But there was an issue in inner London. That is one that we expect social services departments to address.
Baroness Faithfull: My Lords, if the Minister considers that there should be co-ordination of research and action to reduce and prevent such violence, does she agree that that would include almost every ministry, voluntary organisations as well as individuals? For example, every day an enormous number of children in this country are out of school. Young people cannot obtain jobs. The Youth Training Service does not work to the advantage of all young people. The youth service has been cut back and the social services' expenditure reduced. Will such research cover all those aspects?
Baroness Cumberlege: My Lords, yes, we have set up a number of groups. The interdepartmental official group on child abuse supports the ministerial and official group on domestic violence. There is also a new interdepartmental official group for crime prevention. However, with her vast experience of the subject, my noble friend will know that the best results are obtained locally and that it is really up to local organisations, be they voluntary or statutory, to work closely together to tackle that difficult problem.
Baroness Jay of Paddington: My Lords, is the Minister aware of the horrifying statistic produced by the OPCS that children in this country under the age of one are in the age group most vulnerable to being murdered? Is that not such a terrible situation that it calls for national Government action rather than local initiatives?
Baroness Cumberlege: My Lords, we appreciate that children under one year of age are twice as likely as children of other ages to be placed on child protection registers. The number of children who are murdered at that age is four per 100,000, so it is a very small number, although tragic for the families concerned. In trying to prevent that, we work very intensively with families who are at risk. We carry out such activities as pre-birth conferences which we believe go some way to ensuring that it does not happen to more young children.
Lord Rochester: My Lords, following the question asked by the noble Baroness, Lady Faithfull, will the Government consider supplementing the funds available to voluntary youth organisations, in particular in the London boroughs, where it is reported that there has been in real terms a reduction in expenditure of almost 15 per cent. over the past four years? Would not such an investment be money well spent in seeking to reduce criminal and violent behaviour among young people?
Baroness Cumberlege: My Lords, we support voluntary organisations to a large extent. We support Barnardos, the Family Care Unit, the Home Start UK, the National Stepfamily Association, the NCVCCO, and the NSPCC. We also give financial support to Parentline

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and Childline. We recognise that a range of voluntary organisations are doing sterling work in that field and we support them.

Central European Time Bill [H.L.]
3.15 p.m.
Viscount Mountgarret: My Lords, I beg to introduce a Bill to provide for the adoption of Central European Time in England, Wales and Northern Ireland; and to restrict the extent of the Summer Time Act 1972. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Viscount Mountgarret.)
On Question, Bill read a first time, and to be printed.

Business of the House: Debates, 30th November
Viscount Cranborne: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Ashley of Stoke set down for Wednesday, 30th November shall be limited to three hours and that in the name of the Lord Haskel set down for the same day to two hours.—( Viscount Cranborne.)
On Question, Motion agreed to.

Broadcasting: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the following Lords be named of the Select Committee on Broadcasting—

L. Allen of Abbeydale,

E. Arran,

L. Graham of Edmonton,

L. Mancroft,

L. Merlyn-Rees,

L. Morris of Castle Morris,

B. Seccombe,

L. Thomson of Monifieth (Chairman),

E. Winchilsea and Nottingham;

That the Committee have power to adjourn from place to place and to report from time to time;
That two be the quorum of the Committee;
That the Committee have power to appoint specialist advisers.—(The Chairman of Committees.)
Lord Renton: My Lords, it is with great reluctance that I raise this point because I have a high regard, as have all your Lordships, for the noble Lord, Lord Thomson of Monifieth. It may be that in this Session nothing can now be done about the situation if the Motion is passed.
However, I should have thought that the independence of the chairman of the Broadcasting Select Committee was absolutely vital. Although the noble Lord would he a very good chairman in all other
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ways, I wonder whether it is fair on him in view of his long and valuable experience in broadcasting, that he should be chairman of that committee, having to guide it in the way that he would. If that committee, in a spirit of minor controversy, came out in favour of broadcasting companies and the BBC, a decision which others considered that it should not have reached, that decision might be attributed to the chairman's previous history. With great respect to the noble Lord, it might be better to have a purely independent chairman.
The Chairman of Committees: My Lords, I am not sure that the points made by my noble friend have a bearing on the duties to be carried out by those noble Lords who will serve on the committee if the Motion is passed this afternoon. But I can assure my noble friend that the customary consultations took place before the recommendations were placed before your Lordships' House. First, such consultations are matters for the usual channels. Secondly, recommendations are a matter for the Committee of Selection. Finally, it is a matter for your Lordships' House. Your Lordships have heard what the noble Lord has said. If noble Lords feel that, on reflection, those are matters that ought to be taken into account, they can be taken into account in the future.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that some of us were very surprised and sorry that the name of the Member of your Lordships' House with most experience of broadcasting, my noble friend Lord Orr-Ewing, does not appear on the list?
The Chairman of Committees: My Lords, if I may say so with respect, a number of Members of your Lordships' House would be well qualified to serve on this and other committees of the House. I am sure that that suggestion will be borne in mind in the future, as no doubt will all other suggestions, which are most welcome.
Lord Aberdare: My Lords, am I not right that the functions of the committee are purely to oversee the broadcasting of proceedings of the House? They have nothing to do with the broader implications of the world of broadcasting in general and the differences between the BBC and commercial television. For that purpose, I consider that the noble Lord, Lord Thomson of Monifieth, will be a most admirable chairman.
Lord Renton: My Lords, if I may have the leave of the House to speak again, I am greatly influenced by what the noble Lord has just said.
The Chairman of Committees: My Lords, I am grateful for the contribution of the noble Lord, Lord Aberdare. I do not wish to take up your Lordships' time unnecessarily this afternoon, but in support of what he said perhaps I may refer to page 174 of the Companion to the Standing Orders. It gives the terms of reference of the Broadcasting Select Committee and states:
"This committee has responsibility for supervising the arrangements for, and dealing with any problems or complaints arising out of, the televising and sound broadcasting of the proceedings of the House and its committees".

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Then there is a further passage. It was with that thought in mind that I made my first response to the noble Lord who raised the matter. The points which he raised do not have a direct bearing on consideration of the working of this committee of your Lordships' House. I commend the Motion to your Lordships.
On Question, Motion agreed to.

Parliamentary Broadcasting Unit Limited (PARBUL)
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the following Lords, together with the Chairman of Committees, be named as members of the Parliamentary Broadcasting Unit Limited (PARBUL)—E. Arran, L. Thomson of Monifieth. — (The Chairman of Committees.)
On Question, Motion agreed to.

Parliamentary Office of Science and Technology (POST)
The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the following Lords be appointed to serve as members of the Board of the Parliamentary Office of Science and Technology (POST)—

L. Dainton,

L. Flowers,

B. Platt of Writtle.—(The Chairman of Committees.)

On Question, Motion agreed to.

Criminal Justice (Scotland) Bill [H.L.]
3.21 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, I beg to move that this Bill be now read a second time.
The Bill has two main objectives. The first is to enhance the effectiveness of our criminal justice system by strengthening the powers of the criminal justice agencies in the fight against crime. The second is to improve its efficiency and its capacity to deal with those who break the law.
This Bill is the result of the most substantial overhaul of the criminal justice system in Scotland in the last 15 years. I emphasise the word "overhaul", as we are not seeking to destroy the fabric of the system, and put something completely new in its place. We are building on strong foundations which have essentially stood the test of time. Over the past two years we have taken an intense look at how the system is operating, identified specific problems and points at which it is not running smoothly, and formulated proposals to make it work better.
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We have been careful to take account of the views of all those with an interest in the criminal justice system in Scotland. The proposals in this Bill are the product of wide and detailed consultation: seven consultation papers, five research studies, a White Paper and a report from the Scottish Law Commission. I cannot recollect in past years any proposal for legislation for Scotland which has been subjected to that intense degree of consultation other than the Children (Scotland) Bill published last week.
The responses to the consultations suggest to me that we have found the right approach to reform. The great majority of our proposals were supported. And where our original proposals met with reasoned opposition they were reconsidered, and discarded or adjusted.
My belief that we have found the right approach was reinforced only two weeks ago with publication of the Labour Party paper Protection and Justice, which bore in many respects a remarkable resemblance to the ideas in our consultation papers and the White Paper. That confirmed for me that there is no significant area of our Scottish criminal justice system which we have failed to explore. There are just two particular measures which are not included in the Bill, for different reasons.
Our consultation paper Juries and Verdicts recounted the history and development of our system of three verdicts, and considered as impartially and objectively as it could the case for and against retention of this system. We considered very carefully the responses received and concluded that the arguments for retention of the size of the existing jury, the present majority verdict and the historic three verdicts were more compelling than those against.
Most emphatically we were of the view that the verdict of not proven should not be considered in isolation from those and other distinct features of our system. We do not then propose to interfere with any of them.
A second matter, about which there has been considerable public debate in the last year, is that of the case for change to the criteria applied by the Appeal Court in its consideration of criminal appeals, and for new machinery for considering alleged miscarriages of justice. The care of our analysis, in the paper Sentencing and Appeals, of the difficulties of these issues has been applauded in Scotland but many of those consulted felt that these difficult issues required yet further detailed analysis.
We have now responded to that view: my right honourable friend the Secretary of State for Scotland has appointed an independent expert committee under the chairmanship of Professor Stewart Sutherland, the new Principal of Edinburgh University. The committee has been asked to report no later than the summer of 1996. Professor Sutherland has made it clear that he intends to complete the committee's work as quickly as possible, and I am grateful to him for that undertaking but I do not underestimate the complexity of the task. It is far too important a matter to be decided precipitately.
I indicated earlier that the Bill contained proposals which were intended to increase the effectiveness of the criminal justice system in dealing with crime and

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criminals. These include the provisions on bail, the use of DNA analysis, the development of fiscal fines and new powers covering confiscation and forfeiture.
The Bill opens with provisions designed to crack down on the abuse of bail. Clauses 1 to 5 are designed generally to tighten up on the use of bail, to ensure that the public is protected and to make it clear that abuses will be dealt with firmly. For certain serious offences where the accused already has a conviction for such an offence, bail will not be an option. The Bill also provides the courts with powers to increase the sentence for an offence which is committed while the offender is on bail. Up to six months' imprisonment or a fine of £1,000 may be added to a sentence for such bail abuse. Those are tough measures. But the Government consider them wholly justified. The court must take into account not only the interests of justice but the protection of the public. Breach of the court's trust is a serious matter. The measures show the seriousness with which abuse of that trust could be treated.
New technology has provided the police with many additions to their armoury. Most recently DNA analysis is being developed as an effective test in the investigation of certain crimes. To improve further the effectiveness of DNA techniques in the detection of crime, Clause 48 proposes extension of the range of samples which may be taken without warrant in a criminal investigation. The Bill specifies the circumstances in which samples and prints may be checked against those held in police records. It also includes essential safeguards on the uses of samples.
There has been considerable public debate in Scotland about our proposal to extend the use of fiscal fines, particularly in relation to minor drugs offences. Use of fiscal fines has proved effective in keeping a range of minor offences out of our courts. We propose in Clause 50 to extend the range of offences for which a fiscal fine could be offered to all offences triable summarily. I emphasise the words "could be offered". The discretion will remain with the public prosecutor as to whether or not it is in the public interest to prosecute. No offence would be decriminalised. We are simply proposing that the range of alternatives open to the prosecutor should be widened.
Clause 51 provides for a sliding scale of fiscal fines which would allow the procurator fiscal to offer a fine fitted to a greater range of circumstances than at present. It will come as no surprise to noble Lords to learn that my noble and learned friend the Lord Advocate intends to issue guidelines to procurators fiscal on the use of the extended system of fiscal fines.
As regards confiscation and forfeiture, the Government have been in the forefront of measures to deprive offenders of the profits of crime and property used in crime. The Criminal Justice (Scotland) Act 1987 introduced confiscation of the proceeds of drug trafficking in Scotland and the Criminal Justice (International Co-operation) Act 1990, which was UK in extent, implemented the Vienna Convention. The provisions in Part II of the Bill will give the Scottish courts powers to confiscate the proceeds of serious crime and enable the United Kingdom to withdraw its
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reservation to the laundering convention as it applies to Scotland. The provisions follow recommendations made by the Scottish Law Commission in its report on confiscation and forfeiture which was presented to Parliament as recently as last September. It also adopts the Law Commission's recommendations for reforming the general and specific powers already available to Scottish courts to order forfeiture.
The legislation proposed in Part II is lengthy and necessarily complex and I do not wish to detain your Lordships now by going into it in detail. But clearly, with the recent publication of the Scottish Law Commission report, we have had to move quickly and we may wish to propose some amendments to it.
In addition to the proposals I have already outlined as being intended to assist the system in dealing effectively with offenders, the Bill proposes a number of initiatives aimed at fitting the punishment to the crime and the circumstances of the offender.
Clause 29 is intended to enable supervised attendance orders to replace imprisonment as the main sanction for fine default. It builds on experience that we have gained since 1991.
The supervised attendance order would in certain circumstances replace imprisonment for fine default up to level 2 on the standard scale. The provisions would also enable the courts to use supervised attendance orders in place of fines for 16 to 17 year-olds, and would replace imprisonment for fine default for this age group. However, many responses to our consultation paper emphasised the value of the sanction of imprisonment in encouraging the payment of fines and expressed concerns about the risk of increased non-payment if the sanction was removed entirely. The Bill therefore provides for flexibility in permitting certain of these new arrangements to be introduced gradually at local level.
Major strides have been made in recent years to develop and reinforce community based penalties generally. Clauses 30 to 35 seek further to improve the effectiveness, enforceability, targeting, and credibility of these measures. This includes provision to reinforce public protection where there is abuse of trust while undertaking unpaid work as a condition of probation or on a community service order.
The Bill also—in Clause 55—empowers my right honourable friend the Secretary of State to extend the scope of 100 per cent. funding of social work criminal justice services to bring in diversion from prosecution and certain services to the children's hearings in respect of young offenders falling in the age group of 16 and 17. Pilot work still needs to be done but the provisions confirm the Government's continuing commitment to this vital area of criminal justice.
I turn now to the procedural reforms in the Bill. Many of these provisions are designed to streamline the criminal justice process, to speed it up and to reduce as far as possible both inconvenience and waste.
Recent experience in summary cases has shown that the holding of what we describe as an intermediate diet, ahead of the trial diet, at which the judge can assess the state of preparation of the prosecution and defence

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cases, can bring considerable benefits in reducing the number of trials which have to be cancelled or adjourned.
Sheriffs have reacted very positively to the use of intermediate diets in those areas where they currently operate, and I pay tribute to the groups under sheriffs principal Nicholson and Cox in promoting the use of intermediate diets under existing statute.
We have decided as a result of the consultations to build on the existing statutory framework. The provisions contained in Clauses 12 and 13 introduce mandatory first diets in solemn proceedings in the sheriff court and mandatory intermediate diets in summary proceedings.
As part of our proposals, the prosecution and the defence will be required to identify matters which may be capable of agreement and take all reasonable steps to agree those matters before the trial. We believe all this will have a significant and positive impact on the conduct of court business. Not least it will mean that many thousands of police and civilian witnesses (many of the latter group will also have been victims) will be spared unnecessary attendance at court.
Allied to these provisions are provisions in Clauses 14 to 23 designed to simplify the agreement of evidence where it is undisputed or uncontroversial. In addition to putting emphasis on agreeing evidence in advance, we propose that procedures should be simplified by enabling certain types of evidence to be given by means of certificate. These proposals take account of the changing nature of the evidence which is now coming before the courts as a result of new forensic techniques and the nature of modern crime. Again they should also reduce the burden on the number of witnesses actually required to attend court to give evidence.
We also considered whether anything could be done to improve the experience of the criminal justice system by those who were asked to act as jurors, building on the principles already set out in the Justice Charter.
Jury service is an extremely important duty. We believe that we must do all we can to obtain juries which are representative of society as a whole. In Clauses 6 to 8 we propose the abolition of peremptory challenge of jurors; that jurors' occupations should no longer be listed in jury lists; that jurors excused service for any reason should be recalled within a year; and that persons on bail should be disqualified from jury service.
I now turn to the matter that has caused some concern; namely, the right to silence. In the White Paper published in June this year, the Government undertook to consult on whether any changes should be made to the judicial examination procedure and related matters, including the right to silence. After consideration of the comments we received, we have reached the conclusion that only very limited changes to the law are necessary. Our proposals are contained in Clauses 10 and 26 of the Bill.
We do not propose any change in the law on the right of the accused to remain silent under police questioning early in an investigation. Clause 10 proposes, however, strengthening the procedures for judicial examination by ensuring that the prosecutor can put to the accused
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questions designed to seek admissions. We believe that there is no reason why an accused should not, under the sheriffs protection, be invited to admit, deny or explain facts which point to his guilt.
At trial, the approach of the court is determined by the common law of Scotland and the court may comment on an accused's failure to give evidence. We have concluded that a statutory provision to restate the law on silence at trial in Scotland is not necessary but we propose, as recommended by the Thomson Committee and a majority of those who responded to our consultation paper, to remove the statutory prohibition on the prosecutor from commenting on an accused's silence at the trial.
We consider it wholly appropriate that the prosecution, when addressing the jury should be able to comment on a matter on which the court may comment and which the jury may take into account in reaching its verdict.
I now pass to two important provisions on sentencing. The provisions contained in Clause 27 would empower a court, in determining the sentence, to pass on an offender who has pled guilty, to take into account when and in what circumstances the offender made that plea. This provision would make it quite clear that it is appropriate for the courts in Scotland to do that.
Apparent inconsistency in sentencing is also a frequent public criticism. Clause 28 provides expressly for the Appeal Court to issue opinions on sentencing matters which go beyond the particular case before it and would require the lower courts to have regard to those opinions in their own sentencing decisions. Our proposals also include significant changes to the procedures for dealing with criminal appeals. The number of appeals coming before the Appeal Court has nearly trebled in the past 10 years. That clearly is putting our system under considerable strain.
Clauses 35 and 36 propose two significant new measures designed to assist the High Court in their consideration of criminal appeals. First, there would be a new requirement for leave to appeal. A single judge would decide on the basis of papers whether there were arguable grounds to allow the appeal to proceed and would seek to filter out clearly unmeritorious or frivolous appeals. The appellant would, however, have the right to continue his application for leave to appeal to the High Court, if it were rejected by the single judge.
Secondly, in appeals against sentence or other disposals alone the quorum of the High Court would be reduced from three to two judges. The quorum of three judges would be retained, however, for appeals against conviction.
I believe that these reforms will help the Appeal Court to cope with the substantial and increasing workload and allow it to concentrate its resources on those appeals which raise issues of greatest importance.
Passing to Clauses 39 to 47, they respond to criticisms that have been made of the procedures for dealing with accused persons who are insane and cannot therefore stand trial, and persons acquitted on grounds of insanity. Under the existing procedures in Scotland, a person found unfit to stand trial must be detained in a mental

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hospital—possibly for the rest of his life, if he gets no better—without the court reaching a view on whether or not he committed the act for which he was charged.
That is not justice. Under the provisions of the Bill the court would be required to undertake an examination of the facts in order to determine whether or not he did the act constituting the offence. There would be a wider range of disposals available to the courts in dealing with persons acquitted on grounds of insanity. Bet let me stress that, whenever a court considers it appropriate to impose a hospital order with restrictions to protect the public from serious harm, it may still do so.
The House may be aware that there are now a number of statutory exceptions to the general requirement in the 1975 Act in relation to the time limits within which summary prosecutions must be brought. We are considering whether it is now time to make amendment to achieve a greater consistency and we may wish to introduce amendments at a later stage.
Finally, as a further step to streamline the operation of the criminal justice system in Scotland, we hope to bring forward a consolidation of criminal procedure legislation immediately following the Bill's passage. In order to achieve that, some pre-consolidation amendments will be needed and we intend to bring those forward at a later stage.
We are fortunate in Scotland to have a criminal justice system which commands widespread public respect and confidence. We cannot be complacent, however. Times change and society's expectations change with them. The public are understandably becoming ever less tolerant of crime and criminals. They rightly expect quick and effective treatment at all stages of the criminal justice system, just as they do from other public services.
I believe that this Bill, if enacted, will achieve a step change in both the efficiency and effectiveness of the Scottish criminal justice system. I commend the Bill to the House.
Moved, That the Bill be now read a second time.— (Lord Fraser of Carmyllie.)
3.45 p.m.
Lord Macaulay of Bragar: My Lords, I should first like to pay tribute to the noble and learned Lord, Lord Fraser, who is universally regarded in Scotland as a man with a great sense of fairness and interest in making the Scottish legal system as fair and just as possible. That is recognised on this side of the House. We also commend the diligence with which the Scottish Office has attacked—if I may so put it—the various problems arising within the administration of the Scottish legal system and on the production of various papers, culminating with the latest one on the right to silence. Consideration of those papers may very well be rather rushed by the presentation of this Bill to your Lordships' House.
It is true that the views of various parties have been taken into account in formulating the Bill; but the presentation of the Bill has been something of a rocket to the legal community in Scotland and indeed to the
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people of Scotland. Time may have been taken to consider the representations in the formulation of the Bill, but there is deep concern about the amount of time that has been left for people to consider the passage of the Bill through your Lordships' House and another place. It has been suggested to me that perhaps the Committee stage of the Bill should take place some time in the middle of December. That is not a course which commends itself to me. I note that the Minister shakes his head and so I shall depart from that piece of carping and leave the matter there. We shall be delighted to consider the Bill in detail in the new year. The Government can rest assured that from this side of the House everything will be done to expedite the passage of the Bill, subject of course to the usual tradition of scrutiny and improvement. I shall come to the issues of the not proven verdict and criminal appeals at a later stage of my remarks.
In passing, the noble and learned Lord mentioned the question of fiscal fines. There is one matter about which perhaps the Minister, when he winds up, might advise the House. If a young person is found in possession of a small amount of cannabis during a police search and is given a fiscal fine, is that to be recorded as a first "offence"? If that person is then caught a second, third or fourth time, will a record be kept somewhere of something that is not a conviction? It is quite a serious problem. It can readily be seen what may happen. People will say, "It's all right. It's just a fiscal fine. I'll just keep on taking drugs"; and vice versa. The suppliers of drugs may encourage young people to indulge in drugs on the basis that, with any luck, they will get away with a fiscal fine.
We on this side of the House support any measures which can streamline the system of Scottish law without eroding the rights of the accused in particular. Regrettably, we see the Bill as a grave threat to the so-called right to silence. I shall come to that point later.
We welcome the introduction of any measure which assists in the smoother operation of the criminal law in Scotland provided that it maintains the essential balance between expediency and efficiency in the administration of the law; the rights of the individual in criminal proceedings; and in particular the long-standing rule that the Crown, which brings alleged offenders before the courts, must always be held to its obligation to prove any case, from breach of the peace to murder, beyond reasonable doubt. The basic concept of the presumption of innocence should not and must not be undermined, shifted sideways and sacrificed on the altar of administrative expediency. That is one view that some people may very well take of the proposals in the Bill.
My reading of the Bill in the time so far available has not yet convinced me that that balance is maintained by the Bill. I suspect that behind some measures in the Bill there is a deliberate and calculated erosion of the basic concepts of the legal system in Scotland, with a view to obtaining more and easier "convictions", to satisfy—as we have seen south of the Border—a bloodthirsty lobby of people who say, "Get them at any cost", devotees whose ideas of justice may be somewhat blinkered, if not perverted.

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For example, we have heard of police officers at their annual conferences saying, "Of course, criminals are hiding behind the right to silence and we cannot catch them". If that is the philosophy behind the Bill, so be it. But I can assure the House that that philosophy—which I am sure the Minister would not endorse—will be fought tooth and nail from this side of your Lordships' House. Strangely enough, some people in that category who, in their experience, would express that view, are the same people who, when they get into trouble—I have had personal experience of defending some of them—immediately jump behind the right to silence and say, "I am not saying anything. It is up to the Crown to prove the case".
To sacrifice basic principles of law, long regarded as being for the protection of the individual and the avoidance of injustice in criminal trials, for reasons of expediency and cost cutting, is dangerous. If that is what is behind the Bill, to any extent, then the Bill must be carefully and rigorously monitored and scrutinised. This Bill will receive that attention in your Lordships' House in accordance with the usual approach of your Lordships to consider and improve Bills.
It is self-evident that any system is capable of improvement and no system, of law or otherwise, is or ever will be perfect. Throughout the United Kingdom events should by now have alerted us all that a system of law should always be tailored to ensure that the risk of miscarriages of justice is minimised in so far as possible, bearing in mind that cases in court depend on the honesty or dishonesty of police and lay witnesses and the vigilance of the court to control proceedings and direct the jury on legal issues arising within a case. No system can eliminate dishonesty. We have seen examples. If a police officer or forensic scientist wants to tell lies, nobody can stop them. They may be detected in due course; but that is a fundamental weakness of the system. Miscarriages of justice will no doubt occur as long as witnesses, of whatever standing they may be, are prepared to lie under oath. It is for the courts to attempt to trap them and give them their due justice in courts.
Various issues were raised by the Minister, such as the perceived weakening of the so-called "right to silence"; the question of comments by prosecutors and judges on the absence of the accused from the witness box; sentencing guidelines; and the extension of the area of questioning open to a procurator fiscal in judicial examination. Those are examples of areas which will be closely examined in this House when your Lordships scrutinise the Bill, always with a view to maintaining the delicate balance between the rights of the individual and the interests of the state within a criminal justice system.
For example, in a country such as Scotland in which an accused is not obliged to say anything which may incriminate him, from beginning to end of the investigative and judicial procedure, why is his absence from the witness box often referred to as a "failure" on the part of the accused to give evidence? In what is he failing? Where the accused exercises his legal right not to say anything from the moment of his arrest, his absence from the witness box, far from being in any
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way a failure on his part, is a positive exercise of his constitutional legal right to remain silent. Unless and until there is a radical review of the criminal justice system, perhaps not only in Scotland, but also in England and Wales—it is sometimes suggested that the adversarial system of justice is not achieving justice in the public sense and that we should go over to the interrogative system such as they have on the Continent where the whole proceedings are under the control of the court—the right to silence is sacrosanct.
It is a legal nonsense to allow comment to be made by either the judge or the prosecutor, as a general rule, on the absence of the accused from the witness box, though I concede that there may be exceptional cases where that may be justified. For example, where my fingerprint is found on the till behind the bar of some hotel where there has been a break-in, and it is a hotel which I do not frequent, if there is no explanation as to why my fingerprint was there, then there may be a case in which comment may be made by the judge or the prosecutor. But those exceptions are few and far between and any intrusion into the right of silence must be scrutinised carefully.
If the prosecutor is to be allowed to comment on the so-called "failure to give evidence", how far is he or she to be permitted to go? Who is to control the forensic excesses of a prosecuting zealot—and there are plenty of them—whose idea of exercise of judgment is at the least questionable? Whose guidelines are they to follow? Who will lay down the guidelines to a prosecutor to say, "By the way, in a case of murder you can say this; in a case of rape you can say this; and in a case of theft you can say that"? Will guidelines be laid down for the prosecutor? Moreover, having been given that freedom, if a prosecutor goes completely over the top—I do not rule that out in a serious case and, incidentally, it could ruin the prosecution—how is the judge to negative those excesses? Each time the judge draws attention to the excesses of the prosecutor, by inference he draws attention to the fact that the accused did not give evidence. The whole thing therefore becomes an uncontrollable circus. I believe the Minister said in a radio programme last week that it is simply an extension of the existing right of the judge to comment on the absence of the accused from the witness box. I may be misquoting the noble and learned Lord. Sometimes I listen to the radio early in the morning rather than a repeat of the programme in the afternoon.
Perhaps I can draw your Lordships' attention to the case of Sutherland v. H.M. Advocate, SCCR 1994, page 90. That is a typical example of the dangers as regards what is happening. It is a case in the Court of Appeal. The opinion states that the judge,
"told the jury that he was perfectly entitled to take that course"
—that is, not to give evidence—
"and that it would be an entirely wrong approach for them to conclude that the appellant must have had something to hide, must therefore be guilty and should be convicted. He said that they must draw no adverse inference from the mere fact that he had elected not to give evidence. In the passage to which the ground of appeal relates he then said this … 'Having said that, however'"—
note the word "however"—

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"'if there is some evidence in the case which is crying out for an explanation and there is no explanation from the accused when he is the one person who could give an innocent explanation, then you may find it easier to draw a guilty inference from the fact or from that piece of evidence which you are considering'".
The appeal court said,
"As to whether he [the judge] exercised the necessary care and restraint when giving this direction, we note that it was contained in a single sentence and that it was preceded by directions in the clearest terms that the jury were not entitled to draw any adverse inference from the mere fact that the appellant had elected not to give evidence. We do not think that what the trial judge said in his passage went beyond what was appropriate and permissible. We reject this ground of appeal".
That is sociological, if not legal nonsense. How can a judge say on the one hand, "Do not draw any adverse conclusion from the failure of the accused to give evidence", and on the other hand say, "but you will note that this is a piece of evidence which may require an explanation and he has not given evidence"? Why do we not get back to basics? In former days all a judge said was that the jury was not entitled to draw any adverse inference from the failure of the accused to give evidence? Why cannot we leave it at that and let the jury get on with it?
I should like to know—perhaps the noble and learned Lord the Minister or the noble and learned Lord the Lord Advocate can tell me—what evidential value the direction from the judge is to be given by the jury. In a recent case on television in Scotland the accused failed to give evidence. We did not hear what the judge said about the impact of that. But are we going to get corroboration not even by false denial but by absence from the witness box?
It is all very well for the noble and learned Lord the Lord Advocate to shake his head, and I understand why he does that. It is all very well for people versed in the law to say, "Well, of course, that is not the way things are". But if a prosecutor says, "Aha, Mr. Smith has not given evidence", and the judge says, "You will note this piece of evidence is here demanding an explanation and Mr. Smith has not given evidence. You will draw such conclusions as you think fit", what is a lay jury supposed to do except conclude that it is getting a nudge, nudge, wink, wink from the judge and say, "By the way, guilty may very well be the appropriate verdict"; not deliberately on the part of the judge, by no means? But as long as these freedoms exist from the Bench and, even more dangerously, from the floor of the court in the hands of prosecutors, we are in danger of eroding our system of law very considerably.
This matter, along with the question of judicial examination, must be considered. The noble and learned Lord the Minister raised the question of judicial examination with a view—if I have his words correctly—to eliciting a confession of some kind from the accused. Perhaps your Lordships are not familiar with the judicial examination. It is a process by which an accused person is taken before the court at a very early stage in the proceedings, before he even knows what the case against him is. He will have a copy of the complaint, or a indictment or a petition, but he is then "forced" to explain to the court what the case is all
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about, what his defences are, and so on. As it stands, the judicial examination is dangerous enough because it gives the prosecution one bite of the cherry before even the defence has had time to prepare anything. But if we are to go one step further and allow the prosecutor a real snap at the accused in order to get him to confess to something, that is quite a preposterous proposition. We shall be running two trials.
I go back to my basic point. If we do not like the adversarial system, if it is all wrong, let us get rid of it, and let us set up a commission to decide whether the whole legal system in England, Scotland and Wales is a proper legal system for modern times. However, what we are doing in this Bill is to mess about with procedure, with the accused and with the rights of the individual.
Judicial examination is just as important as any other element in the Bill. It is incumbent on the Government to take a second look at these matters—the right to silence and judicial examination—and sit back, get interested parties to come in and have a proper consolidated period of consultation and consideration. The right to silence consultation period ended on 31st October of this year. This Bill was printed on 16th November. There was a considerable response to the right to silence consultation paper. The rapidity of the production of the Bill raises very serious questions: either that the Government considered the representations and did not think them worth much, or they had already made up their mind, the consultation period was nothing more or less than a sham, and the Bill was ready on the stocks to be launched, giving it a fortnight after the close of the consultation period. I can assure your Lordships that within the legal profession there is great concern about the steps the Government are taking in the matters of the right of silence, judicial examination and so on.
The parts of the Bill which encourage expediency in the administration of justice without eroding, or potentially eroding, the rights of accused persons are welcome and will be supported, and are supported, by noble Lords on this side of the House. As I have already said, the passage of those parts of the Bill on to the statute book will not be impeded by unnecessary objections. We shall try to contribute constructively to the phraseology of the Bill. Various areas of the Bill, as the noble and learned Lord has already indicated, are better suited to be dealt with at the Committee and Report stages. It would be insolent of me to take up your Lordships' time in discussing those areas in detail.
I wish to raise two other issues. The first concerns sentencing guidelines. On this side of the House—the noble and learned Lord referred to the document produced by the Labour Party—we are in favour of consideration at least of a sentencing commission. The essence of guidelines is that they should be consistent. With the varying constitution of the Appeal Court in Scotland, where one does not get the same three judges listening to appeals, it is not necessarily the case that one will get a degree of consistency. We have to consider that point.

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What I would not like to happen—and I have raised this point in your Lordships' House before—is to see sentencing guidelines become a straitjacket for a local judge. In a recent case in England a judge wanted to give some young fellow a considerable period in prison. He said, "I would like to give you x number of years but the sentencing guidelines say that I can only give you y". He had to pass a sentence which was not commensurate with the feeling of the local area and the nature of the offence because someone in the Appeal Court, looking at a bundle of papers, had said what was the appropriate sentence in that type of case. That should not be allowed to happen. It must not be a straitjacket for local judges.
We have our own problems in Scotland—speeders on the A.9, the Inverness road, probably one of the most deadly roads in Britain, if not in Europe. People come from the south, driving at 100 to 120 miles an hour. Perhaps in the south of England that might be regarded as just a yuppy exercise on a Friday evening. In Scotland it is regarded as a highly dangerous exercise on a very dangerous road. The guidelines that might be appropriate in the south of Scotland—in Dumfriesshire—might not be appropriate in Inverness-shire. I should like to think that the Government might consider setting up a commission of lay and legal representation to give a broad consensus as to the gravity of particular offences at a particular time and the way they should be dealt with.
The area of mental disorder in criminal procedure is a minefield of difficulty. It is a bewildering area. I ploughed my way through it and I commend the Minister and those who worked on it for the work they have done. We will do everything to assist in the passage of that part of the Bill, as we will do on the question of people profiteering from crime.
On the question of the abolition of the not proven verdict, all I can say is that we shall be back. The not proven verdict is regarded by many people—I declare an interest in that I have been against it for ever—as a nonsensical verdict. It is a fudge. Three verdicts in a criminal court. The rest of the world gets along with two. We in Scotland, for historical reasons, have to have three. All I can say at this stage is, let us get rid of it, but let us get rid of it after an informed debate in your Lordships' House.
The question of defence access to Crown papers in criminal cases, which was focused on yesterday south of the Border, will have to be considered during the passage of the Bill.
Finally, on the question of miscarriages of justice, unlike in other respects, Scotland is well behind the field. England and Wales, we think, will have a new body in office probably within a year. What has happened in Scotland in response to various observations made about the difficulty of miscarriages of justice is that a committee has been set up. Perhaps I may quote Lord Ross, the Lord Justice Clerk of Scotland, speaking at the 10th Commonwealth Law
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Conference—I cannot remember where it was but it is the words that matter—in March 1993. In dealing with miscarriages of justice, he said:
"It thus seems that such a new body if brought into being would have an important part to play in remedying miscarriages of justice in the criminal justice system. Indeed unless such a new body is created, there will be some cases where one cannot be confident that means exist within the criminal justice system as presently constituted for remedying miscarriages of justice which may have occurred".
That was a cry from one of the principal judges in Scotland to say, "Do something about miscarriages of justice". I recognise that the Government have done something about the situation because they have set up a committee which will not report until July 1996, or earlier, on the promise of the chair of the committee. I am somewhat concerned about the composition of the committee because I do not see on it any representation from practising lawyers apart from Professor Ross Harper who, for this year and the next two years, I believe, will be the president of the International Bar Association. I am not sure how much he practises criminal law. There is no representation from the Bar Association of Scotland or indeed from the Faculty of Advocates, as far as I can see.
Lord Fraser of Carmyllie: My Lords, there is Derek Emslie.
Lord Macaulay of Bragar: My Lords, I understand that there is one representative from the Faculty of Advocates, but in terms of practising criminal lawyers, I do not believe that Derek Emslie would put himself into that category at the moment. If I remember correctly, he is an Advocate Depute. But there is no input from the practising lawyers, particularly practising criminal lawyers in Edinburgh, who deal with the appeal procedures. I ask the Minister to take that into account and perhaps consider expanding the committee without making it too unwieldy in order to bring in the practitioners who have to deal not only with the appeals but with the clients involved in the appeals. It is all very well taking evidence from these groups, but what is needed is people to consider the evidence.
In closing, I welcome what the Minister has said—that we are to have a consolidating Bill for criminal law in Scotland—because since the mid-1970s, with all the necessary developments in the law as time has gone by, the practise of criminal law has become a nightmare in trying to find what the actual statutory law is. I look forward to the later stages of this Bill, which I consider should be free from petty party politics. I hope that everyone who takes part in the Committee and Report stages will bear that in mind. We do not approach it from a political point of view and I hope that no one else in your Lordships' House will do so because what matters are the interests of justice, the interests of the individual and the benefit of society.
4.12 p.m.
The Earl of Mar and Kellie: My Lords, we have before us today a Bill which goes some way towards meeting the needs of the criminal justice system in Scotland. Some of the measures contained in the Bill

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are desirable and will be an improvement, but I have to ask: do they go far enough or are they just catching up measures?
Noble Lords will be aware that I worked for many years in the criminal justice system on the social work side, supervising probation orders, community service orders and aftercare licences. I was also a prison social worker and worked most recently on an intensive probation project.
From that point of view, I am happy with the stiffening of penalties for contravention of the Bail Act, with two provisos. First, I am not happy about those who are released on bail at the sheriff court as regards whether they are adequately briefed on the conditions of bail. My observations are that the priority of court staff at that time is to secure a signature on the bail release form. Discussing bail conditions with offenders has shown me that they have little or no knowledge of what is involved despite in some cases being bailed several times in the past. A review of the court procedures in that instance is needed.
Secondly, I wonder whether the new aggravated bail contravention sentence is compatible with the presumption of innocence. Release on bail after a remand can have a destabilising effect on offenders leading to desperate behaviour and naive feelings of "what does it matter?". Of course it does to a victim, but an offender may not see it that way clearly. Bail information and accommodation projects, as run by the Scottish Association for the Care and Resettlement of Offenders, can be helpful in this instance.
The proposed arrangements for jury service should achieve a reduction in hassle and frustration for potential jurors. It also makes it more difficult to avoid jury service by means of the re-citing of excused jurors within one year. We welcome the decision to keep the number of jurors at 15 and to retain the not proven verdict.
There are measures to improve the pre-trial procedures which may prove to be efficient. The mandatory first diet and intermediate diet will reduce the frustration currently felt by jurors and witnesses at the adjournment of trials. I am concerned that Clause 10 will cause difficulties for accused persons not legally represented who may not give a considered answer and subsequently find themselves in greater difficulty than appropriate, for few of these people are well versed in the law.
The measures on uncontroversial evidence seem to be helpful in speeding up trials. However, Clause 18 sounds unfair for it provides information to the jury that I, if a juror, would not wish to know. Meanwhile, Clause 22 seeks to protect the victim from the most pernicious line of questioning in the court system.
The changes proposed for the trial are significant to this debate. Clause 25 allows for the removal from the dock of an accused who is misbehaving. Perhaps this may be a reaction to the evidence which is being led against the accused. Without his or her presence and reactions, how will the jury be able to reach a satisfactory opinion? Clause 26 opens a potential can of worms. It seems to me that a situation may occur when
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the accused will never dare not to give evidence because there is a danger that the jury's mind will be predisposed against the concept of not giving evidence. Ultimately, the Crown must prove its own case.
After conviction, Clause 27 formalises the concept of sentence discounting. This may help to bring a speedier close to a trial in which the defence is faltering; but will that lead to circumstances where the accused, although innocent, will end up pleading guilty? In Clause 28 there seems to be a move towards a sentencing policy. Does that not put in jeopardy the independence of the bench? On the other hand, it would avoid vast differences in sentencing. An extreme and possibly ludicrous case I encountered 25 years ago was at Polmont Borstal. Three boys from relatively crime-free Stornoway were given Borstal training for the theft of paint—a charge that might not have come to court in Glasgow. The novel solution to that case of considerable disparity and of penal contamination, was that they were put in the care of a Gaelic-speaking officer and liberated as soon as permitted.
Clause 29 broadens the scope of supervised attendance orders, especially for 16 and 17 year-old fine defaulters. Given that this group is wrongly disqualified from benefit fines do seem inappropriate for unemployed teenagers. As long as the supervised attendance centres have a programme which will begin to meet the needs of the offender, that would be a good move. To do so, the centre's programme must include discussion groups about offending behaviour, the effect of crime on victims, the use of leisure, entry to the workplace and the resolution of personal and housing problems. The extension of supervised attendance orders to 100 hours is appropriate when set against this list of appropriate tasks for supervised attendance order clients.
Clauses 30 and 31 enhance the role of social work in the criminal justice system, but will the funding be there? Clause 33 brings treatment by a psychologist into the world of probation conditions. Clause 34 aims to stiffen the penalties for offences committed at community service locations. I recall two incidents at the Inverness community service depot. On the first occasion, a supply of paint was stolen and, on another occasion, a set of joinery tools was stolen—albeit that the latter was recovered.
In the proposals for appeals, there would be a reduction in judges' time if the single judge sift and quorum of two judges were implemented.
There is good news about the treatment of those accused who suffer mental disorder. They could now be dealt with by either hospital order, restriction order, guardianship, or supervision and treatment orders after an examination of the facts. I hope that the resources will be made available to allow those orders to be implemented.
Clause 49 tidies up the anomalous situation regarding detention before charges are preferred, so that the total period of detention will be restricted to six hours. That is quite long enough for young and inexperienced offenders.

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The proposal in Clause 50 which permits all statutory offences to be tried in the district court raises the question of whether we would see cases being remitted to the sheriff court for higher penalties.
The unspecified extension of the range of fiscal fines has some merit although there is a question about whether the exemption of a fiscal fine from a person's schedule of previous convictions will be suitable in every case as the range of offences dealt with in that way widens.
An increased range of social work activities are being brought forward on to the statute book at Clause 54 and therefore into the framework of 100 per cent. funding by the Scottish Office. They include the provision of social background reports to children's hearings for 16 and 17 year-olds to the procurator fiscal and the Lord Advocate, as well as supervision of the mentally disordered on supervision and treatment orders, the supervision of 16 and 17 year-olds on a supervision requirement under Clause 44 (1) (a) and (b) from a children's hearing with appropriate funding, and diversion from prosecution schemes. In Motherwell and Aberdeen reparation and mediation schemes are currently being run by the Scottish Association for the Care and Resettlement of Offenders after pilot projects in Edinburgh and Glasgow, the funding of which unfortunately ran out.
Part II deals with the proposals to extend confiscation, forfeiture and the accompanying restraint orders. All deal with money laundering and other proceeds of crime. I do not propose to speak at length about that, except to make two points. My first point is that while there is a good moral case for the confiscation of the means of crime and the forfeiture of its proceeds, it will all depend on the diligence of the procurator fiscal, the co-operation of the accused and convicted, and the persistence of the administrator. I wonder whether the expanded profession of administrator may prove more expensive to the court system than the amount recovered.
My second point is that confiscation and forfeiture are by no means a new idea in Scotland. There is a fine, if costly, history to that. The commissioners for the forfeited estates played a significant part in Scottish history visiting, among others, the Earldom of Mar in 1716. After pushing the Union through the Scottish Parliament, former Principal Secretary Mar rebelled against it, a view not lacking in support today. Ah well, the prison social worker in me cannot resist trying to rehabilitate the sixth Earl!
I wish to mention on a personal basis two aspects of the criminal justice system which ought to be in the Bill but which are not, yet. First, I had hoped that there would be a mandatory requirement on all Scottish prison service establishments to make available to prisoners, on a voluntary basis, a course to enable them to discuss their offending behaviour and other post-release issues. I have always been surprised that until recently such a fundamental subject has been a virtual taboo in prisons.
Secondly, I wish to complain that there is very little in the Bill which addresses the needs of the victims of crime. Urgent attention is required to be given to victim issues. Ought it not to be the norm, for example, that
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compensation orders are made? Again, the procurator fiscal should make more effort to keep the victim in touch with how the case is going and with what will be required of him or her as a witness. For the victim, the trial will probably be a re-run of the original offence—and the defence may be as aggressive as the offender. Again, the provision of a victim counselling service at court would be helpful. I pay tribute to the work of the Scottish Association of Victim Support Schemes across Scotland—from Clackmannan to Stranraer to Caithness. I hope that the Minister will soon be able to announce the doubling of funding for victim support. Spending more in that area will give better value for money for victims, who are fundamental to the criminal justice system. It is significant that if you are an offender, you will be seen by paid professionals. If you are a victim, you will be helped by trained volunteers. Such is the imbalance.
To conclude, the Bill tinkers with the criminal justice system to improve it, but I regret that crime will remain at an unacceptable level. Does the engine of the criminal justice system require fine tuning or replacement?
4.26 p.m.
Baroness Carnegy of Lours: My Lords, I begin by congratulating the noble Earl, Lord Mar and Kellie, on his speech, which I believe was his first from his Front Bench. He is a comparative newcomer to this House and I am sure that we all admire the way in which he has deployed his professional expertise in his first speech from that position.
The Bill deals with issues that are right at the top of the agenda for the people of Scotland. As elsewhere in the United Kingdom, we Scots think a lot and care a lot about jobs, schooling, hospitals, community care and the economy; but I believe that it is a fair guess that higher even than those in priority comes concern at the present time for the safety of our homes, our children, our elderly relations, ourselves, our cars and our possessions generally. There is concern about the number of burglaries and violent crimes which we read and hear about daily and which we and our friends and acquaintances may, alas, have experienced personally. High on our agenda too is concern that far too many people suspected of crime seem not to be caught or seem, having been caught, to be allowed to escape. There is concern that too many people receive sentences that seem far too lenient.
I know very well from when I served on the Bench as an honorary sheriff in the 1970s and early 1980s the frustration which ordinary law-abiding people feel if a court imposes a sentence that looks inappropriately light, if they think that an accused person is too easily given the benefit of the doubt, or if a convicted person is able to keep his or her ill-gotten gains and in no way make restitution for the loss suffered by the victim. Those frustrations are, I believe, no less—and probably more—strongly felt nowadays than ever before. We all hear and see more and more via the media, and the current desire for the operation of our courts in Scotland to be strengthened is very great and cannot be ignored.
At the same time, it seems to me that we Scots are deeply conscious—at any rate, when we take time to

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reflect—that accused people must be dealt with fairly; that as regards serious crimes juries are the people who should decide guilt or innocence; and that sentencing should be clearly fair as well as firm.
I say to the noble Lord, Lord Macaulay—who at present is not in his place—that I do not believe that the electorate or its elected representatives in Scotland are bloodthirsty. I believe that people are only too well aware not just that the victims of crime might at some point be their own parent, grandparent or child but that one day the accused person might be a member of their own family: a son, a daughter or a grandchild.
For that reason, as well as the basic tolerance deep down in the Scots personality and culture, I believe that people appreciate the need for balance in the law; that if, for example, there is to be the strengthening of deterrence—the more effective catching and holding of suspects and arrangements that make it more difficult for the guilty to be found innocent—there must also be proper safeguards to ensure that unnecessary force is not used, that the innocent are not convicted and that miscarriages of justice can be rectified.
Likewise, when people are reminded that the taxpayer must pay most of the costs of the administration of justice—of ensuring that firmness and fairness, in fact, happen—they accept that those costs must be kept in control. They understand well the need to make the procedures work as smoothly as possible with as little waste of time as can be managed. Those who at some time have been called as witnesses or jurors probably know from experience how time is wasted and how there are repetitions, delays and adjournments. It is interesting to note that the Government's figures show that of the 350,000 witnesses who attend court in Scotland each year, no fewer than 280,000 give no evidence at all. They are told that it is all necessary in the cause of justice. However, many are a little mystified why such inefficiency must be part of the law.
The Bill addresses many of those anxieties. As my noble and learned friend told us, and as subsequent speakers have mentioned, the first five clauses deal with the law relating to bail. They limit the range of people who may be granted bail and make it possible to impose tighter conditions. They make it possible to impose more severe penalties for those who break the conditions or commit offences while on bail. They also make it possible for bail to be reviewed if new circumstances come to light which cast doubt on the original decision.
Part II contains proposals relating to confiscation. They enable the court to confiscate the proceeds of crime and they set out how the court will determine what the convicted person has in fact gained by his or her crime. Part II also makes it more difficult for people convicted to escape from forfeiting the property that they have used in crime. It allows the court to make suspended forfeiture orders and to search for and seize property which might in due course be the subject of such an order. All those measures meet the anxieties of the public.
Much of the Bill is devoted to measures that would speed up the workings of the court and would enable court officials, lawyers, judges and, indeed, police
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officers to use their time more effectively and cost-effectively as well as taking up less time for witnesses and jurors.
The Law Society of Scotland has been kind enough to write to me as it has to other noble Lords. It is happy about the majority of the Bill. It tells me that the Government have consulted the society and have taken many of its suggestions into the Bill. It does not agree, it tells me, with Clause 10, which deals with judicial examination, or with Clause 26. We shall be discussing the proposal relating to the so-called right to silence, which I understand is different from that in the legislation for England and Wales. The Law Society of Scotland is also concerned that resources may not be made available on the taxpayers' behalf to finance the new arrangements. It wonders whether the Government have costed carefully enough the balance between the likely savings and additional expenditure. Can my noble and learned friend comment on the statement in the Explanatory and Financial Memorandum to the Bill that the cumulative effect of the proposals should be broadly cost neutral?
The Bill proposes many changes which, while looking eminently sensible to the lay person, will clearly demand new ways of working and, I dare say, even some new skills for lawyers. Of course the House will need to look carefully and in detail at the workability of the measures, not least through lawyers' eyes. After all, the lawyers must get it all to work. I imagine that when we hear the speech of the noble and learned Lord, Lord McCluskey, we shall not be allowed to forget that. I believe that the noble and learned Lord won the Sword of Honour during his training as an Air Force officer. He has ever since been a doughty fighter and we look forward to hearing his speech.
I hope that during our detailed deliberations noble Lords will not become so concerned by the challenge that the Bill presents to lawyers that the needs and anxieties of the public will sometimes be put on the back burner. We must not allow that. This Bill is much needed and I commend it to the House.
4.38 p.m..
Lord McCluskey: My Lords, on Second Reading it is appropriate to discuss the principle of the Bill. However, Part I contains many disparate and unconnected reforms and it is difficult to find the principle. That is not a criticism of the Government; it is just the way it is. I am inclined to agree with the noble Earl's judgment that the Bill is tinkering with the system. I was most surprised to hear the noble and learned Lord the Minister describe it as resulting in the most substantial overhaul of the Scottish criminal justice system for 15 years.
There is a temptation to go straight to the detail because there is no one coherent principle. However, I shall resist doing so. First, I wish to comment on the process that has led to the production of the Bill. It culminated in the publication in June of the Government's White Paper, Firm and Fair. I was and I remain a serious critic of that process. The Government went about it in entirely the wrong way and that is one of the reasons why they obtained some bad results.

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The Government published about half a dozen papers during a period of less than 12 months. They allowed a brief period of consultation—two or three months at most—some of which occurred during the court holiday periods. The people who wrote the papers, who thought up the proposals that were included in them and who decided what was to be left out were civil servants, working to the instructions of Ministers. In some cases I know that their knowledge and practical experience of criminal practice and procedure was very limited indeed. In the case of the Crown Office participants to that process, their experience was entirely one-sided. They had the perspective and prejudices of full-time career public prosecutors.
Let us contrast that with the process which led to the 1980s Bill. I see that the noble Lord, Lord Ewing, is in his place. In the 1970s, for a period as long as nine years, many distinguished experts sat and considered criminal justice reforms. In particular, the committee under Lord Thomson produced three reports. It had on it three High Court judges, a sheriff, public prosecutors, professors, doctors, policemen and lay people. Over that period, it produced a serious look at all the matters. It heard evidence from people listed in Appendix 1 to the report and that list extends to four whole pages of consultees. Some people gave oral as well as written evidence.
It then took a long time to produce its report which was based on all the perspectives of anyone inside, or even outside, the Scottish criminal justice system. Therefore, the legislation which followed was soundly based and commanded widespread support. I mention the noble Lord, Lord Ewing, because when we were members of the government, we sat together and went through the reports. We included in the Bill as many proposals as the legislation committee would permit.
When the government fell, the succeeding government took over that particular Bill, and in many ways, they improved it. They extended it and added the results of the new consultation processes which had come on-stream at that time. That reform commanded the respect of the whole of Scotland. This one is based on an entirely different process. Nobody knows where the ideas came from. Nobody knows why some of them are there and why others have not even been canvassed.
I want to say—and it is right that I should do so—that the consultation process, short though it was, produced a considerable amount of protest from people in Scotland, including myself, the Law Commission and a good many others, about the weakness of the process, the shallowness of some of the proposals and the unwisdom of some of the ideas being published by the Government. I wish to pay this tribute to Ministers—and I do so with the greatest sincerity—for listening to that consultation process in a way which, I must say, surprised me. But they certainly listened and the result is that the Bill is not nearly as bad as most of us had feared. I hope that they will continue to listen and I am sure that they will do so because we are all concerned to improve and streamline the system.
However, it is necessary to draw attention to one or two consequences of that particular process. The whole emphasis of the Bill is on what the White Paper calls
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"our fight against crime". That is what the White Paper is concerned about. I am certainly as anxious as the Government to fight against crime. The White Paper states that their highest priority is to protect the public from crime and from criminals.
Of course the public has the right to expect that kind of utterance from the Government. But the highest priority of the Scottish criminal justice system is to ensure that justice is done in and by our criminal courts. We, the judges, are not allies of the police or public prosecutor. We are not members of the same team. We and the criminal courts exist to ensure that those whom the police and the public prosecutor seek to prosecute will be dealt with justly and fairly and as speedily and inexpensively as possible.
The result of the process that I have described, with the main input coming from the prosecution, the Lord Advocate and the Solicitor-General, is that the balance of the Bill is entirely wrong. I detect only one measure which goes in favour of an accused person in a criminal trial. The whole thrust is to tip the scale against accused persons. That can be seen in the proposals with regard to bail, the increase in penalties, the limitations upon appeals, the reductions in legal aid, where it is hoped there is to be a saving in legal aid, the encroachment on the so-called right of silence and so on.
There is the proposal to reduce the right of peremptory challenge, the right of the defence to say, "We object to this juror" without having to show cause. The history of the matter is that until 1980, there were five peremptory challenges. The Thomson Committee considered the matter and suggested that we should reduce the jury to 12 and allow two challenges. The logic of that was that if you retained 15, you kept three challenges. In 1980 the Government came forward with a proposal to make it one challenge. In this House I introduced an amendment to make it three. The noble and learned Lord the Lord Advocate at that time—I think he is now the Lord Chancellor—marched his troops through the Lobby and the result was that the proposal was defeated.
The matter went to the other place and when it came back with the support of the Government, they had what was called a balanced compromise between those who held different points of view. It would be unwise to disturb that compromise now. The compromise was to have three peremptory challenges. What has changed today? Why are we being invited to abandon that balanced compromise which flowed from Thomson and which met with the somewhat muted approval of those who took part in the discussions at that time.
But an even more serious consequence of the somewhat incestuous way in which the proposals were conceived is that the procedural remedies which are to be introduced in Clauses 10, 11, especially 12, and 13 do not address real problems. Some delay and inconvenience is inevitable in a criminal justice system. It cannot be remedied. But in so far as it is possible to remove faults and improve matters, it is quite clear that the principal causes of delay and inefficiency in our system of bringing people to trial are to be found inside the prosecution system, the system over which the noble and learned Lord the Lord Advocate presides.

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Again, I make it quite clear that that is not a criticism of him or those who act under him, including the fiscals and the Crown agents. I believe that they are heavily under-resourced. Many people support me in that belief. But the Bill does absolutely nothing at all to help them in that regard. As is pointed out in the financial part of the Explanatory Memorandum, the Bill is to be cost neutral. That is cloud-cuckoo-land. You cannot introduce extra bail duties for fiscals and advocates-depute, extra preparation for questioning at judicial examination, extra preparatory work for the fiscals to deal with the matters in Clauses 11, 12, 13 and 14, extra work at hearings in relation to insanity cases, extra responsibilities conferred in relation to confiscation under Part II and so on without increasing the resources available to the fiscal service. Those resources are already inadequate and I am afraid that the Bill is extremely weak in that regard.
There cannot be the slightest doubt that if you increase the number of penalties and the number of crimes but reduce access to bail, as this Bill does, the prison population is bound to rise. I believe that it costs about £20,000 per year to keep a person in prison. Perhaps the noble and learned Lord will correct me if that figure is wrong. Has that been taken into account? The only likely saving mentioned in the Explanatory Memorandum is on legal aid. That is very dangerous indeed.
I see that the noble and learned Lord the Lord Advocate is in his place. He will remember very well the case of Grainger because he acted for the unsuccessful party before the European Court of Human Rights. We got into trouble there because we had not allowed legal aid to a person in relation to an appeal and the Government had to pay compensation of, I think, £1,000.
I turn from what the Bill does contain to some matters that it does not contain. It does not contain certain potentially useful reforms. Mention has been made already —and I want to emphasise it—of dealing with the real miscarriage of justice cases which the present system cannot handle. We may not have had the same publicity in relation to those cases in Scotland but make no mistake about it, we have had such cases and, indeed, I believe that some may still exist.
What is significant is that within the past 10 days, the Government have set up a committee. Why have they waited until then? The Runciman Committee was appointed in the spring of 1991 and the problem was evident then. It reported in June 1993 and the answers were offered then and there has been a great deal of commentary in relation to them since that time. I should certainly like to know why it has taken until now for such a proposal to be put forward. It is a matter of urgency. If a person is languishing in prison suffering from a miscarriage of justice, nothing could be more urgent to him. We must not proceed about it in such a leisurely way as that which has been proposed.
I shall pass over a number of other matters that I should have liked to deal with because they may be suitably dealt with in Committee. However, there is one case that I should like to mention. I am sure that the
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noble and learned Lord the Lord Advocate will have a good deal of sympathy with this point. I have in mind the recent case of Eric John Rowan. He faced criminal charges in Scotland and was released on bail. Eventually, he failed to turn up for trial. One of the conditions of bail was that his passport should be confiscated. Shortly afterwards, he was arrested at Manchester Airport apparently trying to leave the country without a passport. He has since been detained on remand in England. The Scottish courts cannot bring him to trial because statutory provisions do not permit the release of a person held on remand in England to be tried in Scotland. The result is a nonsense.
We in Scotland are very proud of the fact that we have strict time limits on the prosecution of charges. Of course, such time limits affect Mr. Rowan. The Lord Justice General, writing the opinion of the court, said:
"In view of the difficulties which have arisen with the English prison authorities since the introduction of the 12 month time limit in Scotland by the 1980 Act, we believe that the time has come for the whole matter to be reconsidered by Parliament, with a view to the introduction of legislation to permit the transfer of prisoners on remand in such circumstances. In our opinion this is a reform which is now urgently needed".
It is urgently needed and I should like to see it in the Bill. If we are faced with the problem that the English are not prepared to allow the UK legislation to be altered—and I believe that that may be a difficulty—then I believe another possible solution is to insert in the Bill a provision to enable the courts to extend the time limits on that specific ground. At least we will be able to do so without difficulty. The noble and learned Lord the Lord Advocate will no doubt be considering that particular matter.
I do not want to go into the bail provisions in any great detail. However, I doubt very much whether some of them are really necessary. For example, in Clause 3 your Lordships will find that certain persons who have been convicted of such crimes as murder, attempted murder, rape and so on, will not be allowed bail if they come before the courts. But who on earth would grant them bail? I sit as a bail judge once a week and I hear, perhaps, 30 or 40 cases each day that I sit. I should like to ask the noble and learned Lord the Lord Advocate whether there are any cases known to him within the past, let us say, three or five years when a person charged with murder, attempted murder, rape or attempted rape, and having a previous conviction for such a crime, has been released on bail? I should be astonished to discover that that has happened.
Clause 5 says that one cannot proceed with an appeal unless one has lodged the grounds of appeal. That is the practice of the courts at present. Indeed, it is the subject of a practice note which I have in my hand. I see that the noble and learned Lord is shaking his head. Nevertheless, it was issued by the Lord Justice General in March 1994. It is the practice and I, as a bail judge, observe it. In fact, the practice was first specified by Lord Wheatley, then Lord Justice-Clerk, in the case of Smith some years ago. I have the practice note with me in case there is any doubt about the matter.
Clauses 8 and 14 deal with a matter which is very close to my heart and, indeed, to that of the Minister. The noble and learned Lord will remember that I came

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forward in 1990 with proposals to require the prosecutor to serve on the accused person, along with the indictment, a list of separate facts which the accused person could then be invited to admit or deny. The Scottish Law Commission picked up the idea and wrote a very useful report on the matter of which the Minister and the noble and learned Lord the Lord Advocate will be aware. Indeed, in the 1990 debate, the Minister is noted as saying:
"The Scottish Law Commission is currently considering the responses to its consultation on Discussion Paper No. 77 on [these] matters".—[Official Report, 17/5/90; col. 429.]
The commission produced a report and brought forward an excellent clause. The essential character of that clause was the same as the one that I advanced in 1990; namely, that the prosecution should, first of all, specify the matters that ought to be agreed or that might be made the subject of an agreement. The Bill distorts the whole thing entirely and lays the obligation upon both the prosecution and the defence. So, what price the right of silence if there is a statutory obligation to agree certain things? I do not really understand that at all.
Clauses 12 and 13 are said to tackle the question mentioned by the noble Baroness of people coming to court and finding that the case is not to be heard. It means going back to the system which was abolished following consideration by the Thomson Committee. We used to have two diets which were abolished in 1980 by a Bill introduced by the predecessors of those who now sit on the Front Bench. But here we are, for no particular reason, going back to that situation some 14 years later. I do not understand it. In Committee I shall say that Clause 18 is a wholly misconceived clause. It enables the prosecution to put the previous convictions of accused persons before the jury, although the accused persons have not given evidence. I regard that as a terrible departure from the principle that ought to apply.
I can offer a little comfort to the Minister, as regards Clause 26—a clause much disliked by others. I actually support the provision. It relates to the comment by the prosecutor upon the failure of the accused to go into the witness box. Perhaps I may suggest to your Lordships the reason for my support. It is deeply patronising for judges and people like ourselves to imagine that, unless someone says to the jury, "Did you notice that he did not go into the witness box?", they will not have noticed. If a judge points out to them that an accused did not give evidence, one does not see members of the jury striking their heads and saying, "Jings, we didn't actually notice". It is deeply patronising to say that that cannot be commented upon. If the judge can comment upon it, as he can—though he should do so with restraint; and those restraints are fairly well known—I do not see any reason in the world why the prosecutor should not say, "Well, ladies and gentlemen, you have heard the evidence. His fingerprints were found all over the safe. His footprints were found on the carpet and his DNA sample matched that found on the broken window, but he did not offer an explanation". Members of the jury do not need to be told that. But, if the prosecutor wants to say it, let him go ahead and do so. I do not regard that as a serious invasion of some precious constitutional
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right. I believe that a good deal of nonsense has been talked about it by, among others, the noble Lord, Lord Macaulay of Bragar.
I am most doubtful about the proposal that judges should sit alone in order to consider criminal appeals. I have with me a document written by Justice. It was pointed out that there is such a system in England where a single judge scrutinises papers and decides, on the basis of the written papers, whether or not there will be an appeal. The document says that the single judge acts as the main filter for appellants—some research was carried out in that respect—and continues to say that there is a lack of any consistent practice in the way that applications appear to be considered. In one case as regards which Justice has the papers, a solicitor had in error sent two sets of appeal papers in the same case. Two single judge decisions followed: one granted leave to appeal and the other one refused it. Both decisions had been made at different times by the same judge. The first decision was favourable and a custodial sentence was reduced on appeal.
When one sits down at the end of a busy day and is handed a great heap of papers which one has to read before one has one's evening meal or whatever, one is bound to look through them fairly cursorily. Yet, if we refuse leave to appeal and the matter goes to the Appeal Court and leave is also refused there, legal aid is not granted. Therefore, the judges are being brought in to act as doorkeepers against further depredations of the legal aid fund.
There are many other matters which I should like to discuss, but I see that my time is nearly up. I repeat, I hope that the Government will do what they certainly did at the consultation stage; namely, listen and respond. I am anxious to help. I hope it is not immodest if I say that I have more experience of practice at all levels in the criminal courts in Scotland as a prosecutor, as a defence counsel, in the burgh court, in the district court, in the sheriff court and in the Appeal Court in all capacities than anyone else in this noble House. I share the Government's objectives in relation to speed, simplicity and comprehensibility in the criminal process. I hope the Government will study carefully the many amendments that I propose to put down and that they will be seen as genuine attempts to improve the Bill. That is what I propose to do and I look forward to the next stage.
5 p.m.
Lord Lyell: My Lords, the noble and learned Lord who has just regaled us with what I regard as an excellent speech—I am grateful to him for that—may care to wind his memory back 15 years when he carried out two other duties that he has not mentioned to your Lordships. First of all, from the Opposition Bench, when he "fine-toothcombed"—if I may put it that way—my efforts, together with my noble friend Lord Mansfield, to put through your Lordships' House the 1980 Criminal Justice (Scotland) Bill. The noble and learned Lord made one or two comments at the outset of his remarks which were fairly complimentary towards this particular measure; but 17 years ago the noble and learned Lord was on this side of the House and giving me instruction,

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and perhaps correction, over the patents Bill. Therefore the noble and learned Lord has even more practical experience than he has mentioned.
If I take the noble and learned Lord back 15 years, he may remember the 1980 Criminal Justice (Scotland) Bill on which his excellent and kind colleague Lord Ross of Marnock gave me and my noble friend Lord Mansfield a fairly harsh time—making the current Front Bench Opposite appear mere tabby cats—over the problem of attempting to calm the alcoholic hooligans at Scotland's football grounds. I was looking at this debate just yesterday, and there is column after column after column from Lord Ross of Mamock on how we would be acting oppressively and would remove the rights of individuals. The noble and learned Lord, Lord McCluskey, attempted to calm the flow from Lord Ross. But—surprise, surprise!—over the years when I have attended football games in Scotland—I am sure the noble Lords, Lord Ewing and Lord Carmichael, have attended football matches and the noble and learned Lord, Lord McCluskey, told me he attended such a game at the weekend—policemen and the police authorities have said that the 1980 Criminal Justice (Scotland) Act has achieved exactly what it was intended to achieve with minimal disturbance.
I am going back 15 years but I am delighted that the noble and learned Lord, Lord McCluskey, will be able to give us the benefit of his advice and his practical experience over the remaining stages of the Bill. It seems to me that this Bill is in the nature of a consolidating Bill and tries to encapsulate several reports and thoughts of the Law Commission and the legal fraternity in Scotland. I have three points to which I hope my noble and learned friend can respond either tonight or later in writing.
My first point concerns Clause 16 and forensic scientists. I was interested to note in subsection (4) that a forensic scientist is authorised to do certain things and, in subsection (4) (b) (i), "is a constable". I am interested to note that it appears that members of the police force are sufficiently qualified in this rather complicated science to be forensic scientists for the purpose of major criminal investigations. I hope my noble and learned friend can give me some advice as regards the qualifications that are required under Clause 16(4) (b) (i). To what level do these individuals require to be qualified, and where do they carry out their work? How many individuals are we thinking of—a handful, 50 or even 100?
Secondly, I studied Clause 20 which concerns video recordings. At first sight I thought this was dealing with video recordings of suspects being questioned; but on closer examination, I found that my fears were virtually allayed although I hope my noble and learned friend will give me clarification that the evidence which is available on the video recordings is adequate for the purposes of proof in the criminal courts.
Thirdly, Clause 26 concerns what we call the right to silence. I am afraid that I have not been able to understand the entire output of the 1975 Act; but I understand that that Act of 1975—let alone Clause 26—follows on from what I believe was known as the
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Thomson Report. That is the advice that I have been given. I recall the furore and high emotion that was aroused both here and elsewhere and all around the United Kingdom over the right to silence perhaps seven, eight or nine years ago when we were discussing a so-called right to silence with regard to serious offences which were connected with the prevention of terrorism and other aspects of the law both here and elsewhere in the United Kingdom. I have been considerably reassured on that matter by what my noble and learned friend had to say. I was interested, too, in what the noble Lord, Lord Macaulay, said. The noble and learned Lord, Lord McCluskey, spelt out in about two minutes flat what I believe and hope to be the case. Certainly the noble and learned Lord, Lord McCluskey, has reassured me on this point, and I should be grateful if my noble and learned friend the Minister could reassure me further. If the matter is complicated, perhaps he can write to me but I shall certainly listen carefully to what he has to say when he replies to the debate this evening.
Finally, I congratulate my noble and learned friend and the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay, who is not in his place, who are all practitioners of what I believe to be the best legal system in the world. I believe that this Bill, with any imperfections that we or Members in another place will attempt to iron out, will make a useful step in the progress of that legal system. I have had experience of the office of my noble and learned friend, and it is ready to give Members of your Lordships' House or of another place the opportunity to have a simple Bill—I believe the sinister words here are, "if government time allows"—with government support but the work has to be done by Back-Benchers. I believe the law can be tidied up. My time is up as regards this Bill and I look forward to hearing what my noble and learned friend has to say.
5.7 p.m.
Lord Carmichael of Kelvingrove: My Lords, this Bill is highly technical. I have listened to the speeches of the noble and learned Lord, Lord Fraser of Carmyllie, and my noble friend Lord Macaulay of Bragar, and of the noble and learned Lord, Lord McCluskey. I am not sure whether there is another title for a High Court judge other than noble and learned. As a layman, I am sure the House will realise the difficulty I experience in trying to reply to a debate such as this. However, I am sure that we will have an interesting Committee stage in which my education as regards the law will progress further.
There are one or two points in the Bill I wish to deal with. My only connection with some of the matters we are discussing is that I was for a number of years the honorary chairman of SACRO in Scotland. I have no doubt that the noble and learned Lord the Lord Advocate will have received briefs from SACRO, as I have, and will have considered a suitable response. One of the matters that has been referred to in a number of the contributions to this debate is that of resources. It is said that the costs will be roughly balanced. I wonder whether we can look forward to a time when resources will cover the costs of the courts, and of the prosecution—almost certainly the costs of the

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prosecution will increase under the terms of this Bill—and of the prisons and the expenses of social work departments. I am informed by others—I am fairly convinced of this myself—that the costs of these provisions will almost certainly increase because of the effects of the Bill. I should say the good effects of the Bill as I am not criticising it in that regard. I am just saying that I doubt whether we shall obtain the system of justice on the cheap that we hope the Bill will give us. I believe, and others have expressed the view, that the financial effects of the Bill will certainly not be broadly cost neutral. I hope that in replying the Minister will deal with that point.
Some of the points that I should like to raise have already been mentioned. However, I have been involved in the issues in my earlier role with SACRO. One of those questions is the handling of miscarriages of justice, a matter which was dealt with very well by the noble and learned Lord, Lord McCluskey. The disturbing feature of the issue of miscarriages of justice is that the stage has almost been reached when people believe there has been a miscarriage of justice; there has been so much publicity of cases in England that if someone puts up a reasonable case, the general public—and sometimes the press and media—believe that there may be something in it. Therefore, there must be a clear examination to debunk any supposed miscarriage of justice. That must be transparent. That is an important point for the future and for the sake of justice in Scotland.
SACRO was also concerned about bail. None of the issues relating to bail was raised during the consultation process. Some of the measures appear to have been brought in almost as a "get tough" policy towards offenders, an afterthought in response to a perception that those on bail do not take the conditions of bail seriously. While I was involved with SACRO, Lothian Region in partnership with SACRO, introduced a pilot project, with funding from the Scottish Office, offering bail information, supervision and accommodation to those on bail. That worked rather well. The project was aimed at reducing the number of remands into custody. It demonstrates that that approach is effective. So far as I know, the project is continuing. In the view of those involved with the scheme it would be preferable to increase the funding for such projects rather than to encourage more remands into custody when that has already proved to have disastrous consequences for young people, and particularly the vulnerable young people. No one would doubt that there is a group of young people for whom custody for a period and in certain conditions may be appropriate; but in the case of many young people it would almost certainly be better to have well supervised bail, which of course involves some cost.
Breaching bail is already deemed an offence in Scotland in its own right. That is harsher than the situation in England. Clause 2 represents a further harshening which is not in keeping with the present practice of extending bail on a presumption of innocence.
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We have a large number of points to raise in Committee. I am sure that the Minister will appreciate that, and he will want a good debate on the Bill before it goes to another place.
Catching the eye of the noble Lord, Lord Lyell, perhaps I may respond to his comments about football. I should like to correct him. I believe that the measure that he mentioned resulted from the report of the late Frank McElhone. It was a very progressive move. As a regular football supporter, I deplore the amount of drink which is consumed outside the ground. It is quite appalling. I was going to say that it is almost like this noble House on a busy night, such as during the Maastricht debate. People stand outside the doors before going in. The situation is very bad in places like Maryhill Road, Parkhead and Ibrox when there is a big football match. The amount of drinking is excessive. But there is none in the ground. That is very important, quite apart from the fact that there are no cans or bottles to throw. In addition, perhaps by the time people go into the ground some of the effect of the drink has worn off. However, there is still far too much drinking in Scotland. I do not know whether the noble Lord would like to intervene at this point, but I felt that I had to put the record straight in case the noble Lord, Lord Lyell, had put the wrong slant on the matter.
In SACRO we also introduced mediation schemes under which the accused discusses with the victim the consequences of his actions. In the case of violence, particularly violence on the spur of the moment, it may be possible to make the person who had committed an offence rethink and have some contrition if he faces the person who was the victim of his violence. I do not believe that anyone is beyond some form of redemption and I believe that the scheme may be of some help.
There is another debate here this evening on a rather different subject—the United Kingdom motor coach industry. It could hardly be further from the very serious subject that we are discussing now. With those words and the promise of a very good Committee stage, I should like to hear the reply of the noble and learned Lord, Lord Fraser of Carmyllie.
5.16 p.m.
Lord Fraser of Carmyllie: My Lords, instead of immediately thanking all those who have contributed to the debate, perhaps I may record with some regret that, unfortunately, a Member of your Lordships' House, Lord Selkirk, who over many years regularly contributed to debates on criminal justice in Scotland died last week. His contributions will be greatly missed. Those of us who are members of the Faculty of Advocates were proud that, with his distinguished political record, he was also a member of the faculty.
I thank all those who have contributed to the Second Reading debate. The Bill was characterised by a number of your Lordships as being a tinkering with the system. The Bill is the result of extensive consultation. I

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certainly reject the idea that in any sense we did not recognise that what is at issue here is justice. In the foreword to our paper Firm and Fair we say:
"Scotland is well served by its distinctive system of criminal justice. An independent prosecution service acting in the public interest and a judiciary of absolute integrity are among its, particular strengths".
I would be the last person in your Lordships' House to suggest to the noble and learned Lord, Lord McCluskey, that in any respect his intellectual capacity is failing. However, it seems to me, with respect, that he is coming to an age when his memory is becoming somewhat golden. If he genuinely believes that the 1979 Bill, and in its later form the 1980 Bill, commanded the universal respect of all Scotland, that does not square with my memory of it, although as time has gone by some of the features which were opposed at that time are now accepted as being important parts of our system.
This is not a tinkering with the system. We looked long and hard at all of the issues and where we might improve them. Certainly we did not try to address such fundamental issues, even if we wanted to, of whether we should move from our current adversarial system to an inquisitorial one. I would vigorously resist that, particularly at a time when so many countries in Europe are looking this way across the Channel to see whether they might move more towards our adversarial systems rather than remain with their own inquisitorial systems.
I accept that, if there is one big idea which is not contained within the Bill, it is in relation to the proposal that there should be a fresh view, possibly including the establishment of a tribunal, in relation to miscarriages of justice. As the Bill progresses through its later stages there may be those who will wish to return to that matter. We recognise the interest in it. We also recognise the great complexity of the issue. It is for that reason that the committee under the distinguished chairmanship of Professor Sutherland has been established. Perhaps I may say this to the noble Lord, Lord Macaulay. It would seem to me that its membership is not without distinction, including within it the Lord Justice-Clerk, and Sheriff Gerald Gordon, who will be well known to anyone with an interest in the criminal system, along with many other distinguished lawyers and others who have a knowledge of our system.
I make no apologies for returning to a number of matters in procedure which existed previously. Our experience has been that by focusing carefully on intermediate diets in the sheriff courts remarkable progress has been made in reducing the number of witnesses unnecessarily called to our courts and the number of trials unnecessarily adjourned or sometimes cancelled. Already we have achieved significant success. I believe that the provisions in the Bill will make those experiments even more successful.
It is not a matter simply of saving the fiscal's time or the court's time. Among the correspondence that I receive are letters from members of the public who have been cited as witnesses. They find that they have repeatedly to come to court and are then sent away without explanation. They have to return weeks later
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and then find that a plea of guilty is tendered, so even in those circumstances they are not required. What is alarming is their conclusion: that should they be witness to another criminal activity they would turn a blind eye to it. At the centre of the Bill is a serious purpose: it is to avoid just such a problem. As my noble friend Lady Carnegy pointed out, huge numbers of people are called to the courts as witnesses every year. We hope to reduce the number substantially.
I am grateful to my noble friend and to others in the House who have given a welcome to the provisions in the Bill. It contains a wide variety of different issues. Sometimes the support came, if I may say so, from unexpected quarters with unexpected vigour. I am grateful to the noble and learned Lord, Lord McCluskey, for his trenchant and brief explanation of the desirability of Clause 26. I hope that it will be understood far more clearly in Scotland what a modest proposal it is and where it fits into the existing common law.
At another point the noble and learned Lord complained that the balance of the Bill was entirely wrong; that it had all been inspired by Crown Agents, the Crown Office or the Law Officers. I cannot accept that. I believe that there were matters on which we wished to achieve a rather better balance. If I recollect the matter accurately, he singled out the change which we proposed on the peremptory challenge of jurors. His narrative of what took place in the 1980 legislation was entirely correct. Since then a similar abolition was proposed and indeed enacted in England. A number of anxieties were expressed at the time. However, my understanding of the situation south of the Border is that, notwithstanding that abolition, the threatened problems have not arisen.
There was general complaint that there was risk of some under-resourcing of both the fiscal service and the criminal justice system more generally. I come back to this point. I am concerned that our criminal justice system should work efficiently and effectively, and that no one—be they court staff, sheriffs, procurators fiscal or whatever—should have time wasted and public money wasted if it can be properly avoided, and that might best be done in relation to our provisions on routine evidence, certificated evidence, agreed evidence and intermediate diets.
There will be expenditure, and provision is allowed for it in the Bill. We should like to extend some of the arrangements and go further with 100 per cent. funding if the arrangements prove successful in relation to supervised attendance orders and the like. I have no doubt that noble Lords, including the noble Earl, Lord Mar and Kellie, will warmly approve of the arrangements that we have already made and of the way in which we wish to extend them.
I hope that our proposal that those who have had a fine imposed and do not pay it should have the matter resolved by the requirement that they are subjected to a supervised attendance order rather than be sent to prison will be more specifically welcomed. Anyone who has contact with the prison service in Scotland will realise the enormous waste of resources involved with the huge number of receptions required. Such a situation achieves

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absolutely nothing. People are sometimes in prison for only a matter of hours before their fine is paid but huge burdens are imposed on the service.
A number of detailed questions were asked. It would be difficult for me to attempt to answer them all. I shall take up the offer extended to me by my noble friend Lord Lyell to write to him on the issue of the' qualifications of forensic scientists. As he will appreciate, forensic scientists carry out a wide range of functions. He also asked me about the video-taping of police interviews. A pilot scheme in Lothian and the Borders has just been completed and we are looking to see what experience might be gained from that scheme to take the matter forward.
I am grateful for the welcome for many of the detailed provisions which have been introduced in the Bill. From the speeches that have been made, I am encouraged that the House will enjoy positive and constructive Committee and Report stages. I hope that sufficient has been said in the Second Reading debate to set out for all those not only in your Lordships' House but in Scotland who wish to know what the Bill contains. I hope that they derive that information from our deliberations this evening. I look forward to the later stages of the Bill. I commend it to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Motor Coach Industry and European Legislation
5.28 p.m.
Lord Teviot Lord Teviot rose to ask Her Majesty's Government what has been the impact of European Union legislation on the United Kingdom motor coach industry.
The noble Lord said: My Lords, I have pleasure in declaring an interest of which many of your Lordships are aware. For many years I have been in touch with the bus and coach industry, and I am delighted to ask this Question today. I thank those noble Lords who are taking part in the debate.
The noble Earl, Lord Attlee, will develop the subject of road safety. I shall touch on it but will allow him to develop it. I am also pleased to see the noble Lord, Lord Clinton-Davis, who this afternoon is wearing his hat as the official Opposition spokesman. It would be helpful if he could give the benefit of his wisdom on the background of some of the legislation with regard to Europe. It is an important subject for the industry as a whole.
The major part of the motor coach industry in the United Kingdom—the number of vehicles is estimated at 15,000—is operated by small to medium sized enterprises. That ranges from operators of one coach to those with up to 50 vehicles. We do, of course, have a few significant large international operators with fleets numbering hundreds. However, many of the fleets are family owned and rely upon the dedication and flair of their owners for their continued success. In rural areas coaches are frequently the only means of transport for work and leisure pursuits and also provide evergreen
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holidays. But, most importantly, both nationally and internationally motor coaches play a key role in inter-urban travel and key express routes.
The safety of passengers is one of the principal concerns of United Kingdom coach operators and governments alike. Proven solutions to increasing safety have always been welcomed by the industry. I must confess that 1994 was not the best year where accidents are concerned, but coach travel continues to be one of the safest forms of transport.
Legislation from Europe which has opened up the market for transport by motor coach has been welcomed. That has been particularly true of the simplification procedures and authorisation of certain services. Common rules for access to the profession are all welcome. Perhaps the noble Lord, Lord Clinton-Davis, was responsible for that in his 10 years as a Commissioner.
The Commission White Paper on the Common Transport Policy, especially the development of the Citizens Network, is most encouraging for the role of communal transport, in which coaches play a key part. However, there are a number of developments in Europe which add significant additional costs to the operator and may put many of the small enterprises out of business. Among the most worrying is the proposal to apply value added tax on intra-Community bus and coach travel but to allow air and rail travel to be zero rated. That move is discriminatory and places the bus and coach sector at a competitive disadvantage. In addition to that outright discrimination, the nature of the VAT will create such a burden that many will be forced to withdraw from established operations.
The international coach passenger, when compared with international passengers travelling by other modes, is least able to bear the increased cost of travel which will arise from the imposition of VAT. While VAT will be paid in the country of the point of departure and not on "territoriality", it will be zero rated in the United Kingdom. The industry is concerned to know whether, if a positive rate of VAT is introduced in the UK, other forms of travel will have a positive rating for value added tax. Coaches are further discriminated against, since they pay the full rate of excise duty on fuel, whereas rail and to a lesser extent air travel are exempt.
I now move to speed capability. By 1996 the EC Directive 1992/6 will have reduced the maximum speed capability of most motor coaches to 65 miles per hour. At the time when that directive was agreed, the United Kingdom Government reassured the industry that the reduction would not result in a ban from the outside lane of motorways. Yet the Government have now consulted on such a proposal and are due to make a decision shortly. They have in their possession an independent report which shows that:
"there is no conclusive evidence that the exposure to the risk of accidents would be either increased or decreased due to the imposition of a ban on coaches from the third lane".
So why is it being considered? There are serious safety and commercial implications for the coach industry if the ban goes ahead, because coaches will have to operate at the level of the heavy goods vehicle at 56 miles per hour and will thus be placed at a competitive

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disadvantage with other forms of transport. That is another example of discrimination against motor coaches. It seems to be against the general encouragement for people to travel on public transport.
I turn to weights. The European Community allows two-axle vehicles of up to 18 tonnes to operate throughout the Community, but the UK Government have a derogation until 1998 to allow for bridge strengthening. It would be helpful if the Government could find some means of relaxing those rules to permit vehicles of 18 tonnes on some parts of the network so as to allow UK operators to compete more effectively with Continental operators. Reports indicate that the bridge strengthening programme is almost complete.
Another point which has been brought to my attention in the past hour is a problem which has been dealt with responsibly by operators. It is that some of their passengers have wished to purchase ample quantities of duty-free goods, thus overloading the coaches. The operators have had to achieve a compromise with their passengers to avoid grossly overloading their vehicles. I can only add that if vehicles of 18 tonnes were allowed on the roads, that problem would be unlikely to exist.
As regards vehicle lengths, I should be grateful if the Minister would state the Government's views on the use of 15-metre vehicles, which are in common use throughout the continent. Many United Kingdom operators would like to use 15-metre vehicles in this country.
To wind up my remarks, when one talks about any form of legislation one comes to the matter of enforcement. The enforcement of regulations is a key part of transport and coaching in particular. Adherence to regulations on drivers' hours is a key part of road safety. There is a growing anxiety about the level of enforcement in Europe and the lack of consistency. The Commission's response to the issue is not to suggest that member states provide the right level and quality of staff but to computerise enforcement by means of a tachograph black box. Again, that brings additional costs, makes the system complicated and discourages further small to medium sized enterprises.
I have been brief, but I hope that I have dealt with the subject adequately. The issues are of great concern to the industry and I look forward to hearing the views of your Lordships and in particular of the Minister on these important matters.
5.37 p.m.
Earl Attlee: My Lords, this is a transport Question and as it is one of my interests I put my name down to speak. However, I found it difficult to discover what problem the noble Lord, Lord Teviot, intended to address. He mentioned axle weights; this morning I attended an interesting conference at the Queen Elizabeth II Conference Centre concerning natural gas vehicles. Those vehicles have extremely low emissions, but the manufacturers were asking for an increase in rear axle weight to accommodate a rear engine and the necessary gas bottles.
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It will always be possible to produce a case for a modest increase in axle weights, but the problem is that coaches are already extremely difficult to recover when they break down. Any increase in the weight of the coach will make it impossible to lift and tow the coach while using the recovery vehicle with reasonable axle weights. Furthermore, the coach will operate at or near its maximum axle weight for a large proportion of the journey time, whereas a goods vehicle will be fully loaded for only about 50 per cent. of the time and often much less for certain types of work. If a heavier vehicle is required to carry passengers, goods, luggage and so on, we should use a vehicle with more axles.
With regard to the cost of diesel fuel, the Government have a duty to raise revenue for their expenditure programme. Road transport has always been properly taxed.
The noble Lord mentioned speed limiters. I have a problem with these. The regulations set the speed limit for a speed limiter at slightly below the maximum speed at which the vehicle is allowed to travel.
I also support the noble Lord's concern in relation to the banning of coaches from the outside lane of the motorway. Coaches are a priority form of travel on the motorway. They can often carry 40, 50 or 60 people and should therefore be allowed to use the outside lane even if it inconveniences people in their private cars.
I contacted the Confederation of Passenger Transport on two separate days, but surprisingly I received no briefing on any problems that it might have. I was, however, very grateful for the DoT accident statistics which the organisation sent me. There are so many tables that it should be possible to prove any hypothesis on safety matters that one cares to propose. What is clear is that only the air travel fatal accident rate was better than that for buses and coaches. The accident rates per billion passenger kilometres are: 0.2 for air travel; 0.5 for buses and coaches; surprisingly, 1.0 for rail—twice as bad as the rate for buses and coaches; and 4.5 for cars. When one looks at the accident rate for motor cycles, it is surprising that there are any motorcyclists left. The picture is not so rosy when one looks at the "killed or seriously injured" rate. But the figures are still quite good compared to those for private cars.
I do not suggest that we should be complacent about coach safety. I looked at the statistics for evidence to support the need for seatbelts—I am sure that the noble Lord, Lord Clinton-Davis, will mention this point—and I found the figures to be confusing and contradictory. The accident rate is so low that it is difficult to reach a rational opinion; so I have none.
There is always scope for improvement. The noble Lord, Lord Teviot, mentioned the enforcement authorities. Those authorities must be eternally vigilant and must continue to ensure that our buses and coaches are maintained and operated to the highest standards. I am sure that the noble Viscount the Minister will assure me that they are doing just that. But can he confirm that the number of vehicle inspectors has been reduced and that that process will continue? Is he aware that such a policy will only encourage cowboy operators? No doubt his brief will mention multi-agency checks, and they are very valuable. But the Minister should be aware that

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inspectors' visits to operators' premises can be very revealing. That aspect of enforcement should not be neglected.
I now turn to minibuses. A minibus has no more than 16 seats, and a special vocational licence is not required to drive such vehicles. They are often used by schools, colleges, clubs etc. At one point I was involved in' commercial vehicle driver training. We had a contract to assess drivers for a London borough in order for it to comply with the requirements of its insurance company. A significant number of minibus candidates had to be failed as they clearly did not have the skill and experience to drive a minibus. I expected to find some resentment when failing such candidates. More often, however, I found relief. The teachers, lecturers, club leaders etc. often had no choice as to whether they drove a minibus as it was part of their job.
While I realise the need for EC harmonisation of driving licences, can the Minister tell the House whether any method is available to ensure that all employers assess their minibus drivers? I am thinking of a scheme along the lines of the well-established non-statutory arrangements for the testing of fork-lift truck operators in a factory. No responsible organisation uses unqualified operators as it may fall foul of the Health and Safety at Work Act.
5.45 p.m.
Lord Lucas of Chilworth: My Lords, with the indulgence of the House I should like to crave two or three minutes. I did not put my name down on the list of speakers because I had not expected to be in the House this afternoon. Perhaps the noble Baroness will forgive me—I understand that she is speaking below the gap perhaps on behalf of the party opposite.
I fear that my noble friend Lord Teviot, whose interest in the bus and coach industry is very well known—indeed, my noble friend is very knowledgeable about it—is pleading a special cause; namely, that, sadly, the last year or so has produced a number of somewhat disastrous accidents involving coaches which have called into question their safety. I do not believe that any effort to improve the safety of coaches can or should be ignored. That goes essentially to the design factors that enable seatbelts to be fitted on vehicles, whether in a large passenger carrying vehicle or in a so-called minibus which is not designed to take seatbelts. This is something of a longer term project and should be attended to.
The plea about excise duty on fuel is an old bone in a comparatively young dog's mouth. It applies equally to the heavy goods vehicle industry. One should not call out a preference for the passenger carrying bus or the coach business. It is a competitive business. What one should perhaps have is a level playing field with other modes of passenger carrying transport. But I fear that special pleading is not on the agenda.
When we come to the very narrow question of the use of motorways, there is a general misconception that the outer lane on a motorway is used either for the faster vehicle or for special kinds of vehicle. In fact, as I think
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noble Lords will agree, that lane is primarily built for overtaking so that the other lanes can carry the more moderately speedy vehicles.
It seems to me ridiculous that we should have speed limiters on coaches or indeed on other vehicles. Technically, I do not believe them to be terribly reliable. In the hands of inexperienced drivers they can be positively dangerous. What we in the coach and bus industry have to look at is a reasonably fair level playing field with other modes of transport and higher degrees of security both for the vehicle and the driver. Far too many drivers are part-time. They may very well have undertaken a day's work or shift work—they may be, for example, firemen or policemen or are perhaps in some other occupation—and then proceed to drive coaches. This is one reason why we have had over many years a number of quite serious accidents.
To take up the point that was made by the noble Earl, Lord Attlee, I believe that in their enforcement the commissioners should be a good deal more stringent. I hope that the continuous operator licence system which is to come into effect with the passing of the deregulation Bill will enable the commissioners to have more time, perhaps more energy, and more expertise to devote to that aspect of coach and other transport problems.
Lord Teviot: My Lords, before the noble Lord sits down—although I did not wish to interrupt him and I am very grateful for his intervention and experience—I must say that I was not doing any special pleading for part of the industry. I was only trying to point out that, compared with other modes of transport, it was perhaps being discriminated against. There was no special pleading.
5.50 p.m.
Baroness Thomas of Walliswood: My Lords, I was delighted to hear the noble Lord, Lord Lucas, speak, particularly as I agree wholeheartedly with much of what he said. I should begin by saying that I am one of those passionate Europeans who nevertheless dislike excessive and unjustified standardisation: otherwise I might be misunderstood. I shall limit myself to some fairly straightforward comments.
I believe that in general we should support those moves which increase bus safety and increase the use of buses as part of a sustainable transport strategy. What we have to ask about the directives that are currently in process of being either implemented or considered is whether they achieve those objectives. For example, will the proposed directive on the harmonisation of bus construction and the second directive on driver licensing contribute to bus safety and increase the use of buses? What about the actions of the present Government? How have they contributed to those objectives?
Specifically, I agree with the noble Lord, Lord Lucas, about not having differential rates of taxation on different modes of transport. That is an important point which applies to a number of transport issues.
I oppose the regulation of matters which should be left to local decision-taking under the subsidiarity approach. For example, it is quite unnecessary for the

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Community to concern itself overly with the size and seating capacity of double-decker buses. That seems to be eminently suitable for local decision taking.
On the other hand, the proposals to increase the size and weight of all public service vehicles and to increase the standing density on many of them—proposals which, are also contained in the directive on harmonising bus construction —exhibit some contrary points. One could justify the increased weight in terms of there being less risk of turning over. But surely the increase in standing passenger density does not contribute to passenger safety. The seated passenger is much safer than the standing passenger. Moreover, the decisions to standardise the sizes of buses smack of greater standardisation of vehicle sizes and types for its own sake rather than any interest in the two objectives that I mentioned.
Would larger vehicles assist in achieving increased bus use? I feel that we should all be concerned to bring buses as close as possible to where the users live. However, the larger the bus, the less able it is to move about a housing estate, for example, or go in and out of small villages. The change might have a contrary effect.
What about the increased costs in the UK, with its minimal public financial support of transport? The cost of transport is the main determinant of the level of patronage of buses.
We should approach the proposed directive on harmonisation of passenger vehicle size with an open mind and resolutely oppose any suggestions which appear to be motivated by a desire for standardisation for its own sake rather than to diminish a measured risk. I look forward with interest to learning the Government's intentions in this matter.
Finally, I should like to make a few comments on seat belts and the safety of minibuses, including driver training. Unfortunately, it is a sad fact that driver error is the main factor affecting the safety of transport in school minibuses and those owned by voluntary bodies. It is terrible to say but I am afraid that it is true. Very often the drivers are volunteers who do not have much experience in the management of large vehicles. So far as I know, they are not covered by legislation, directives or guidance on the length of time that they should drive. At the present time it is all left in the hands of the people who own the vehicles. In Surrey, for example, individual schools are drawing up codes of conduct for their drivers and are attempting to provide them with some kind of training. But, given the seriousness of this matter, it would be far better if the Government would co-operate with the local government associations, many of whose members try to provide training for drivers from voluntary organisations and schools, and develop guidance for additional training to ensure that, for example, within 10 years all drivers have the additional qualifications prescribed from 1996 for new drivers in the second directive on driver registration.
The hot political issue is seat belts, particularly as it affects minibuses owned and operated by voluntary organisations and especially schools, and those public service vehicles used for transport to schools. The installation of any type of belt has problems for both
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existing types of vehicles. A debate is under way as to whether we should insist on two or three-point belts—in other words, lap belts or lap and shoulder belts. There is a great difference in the types of vehicle into which the belts can be fitted.
I am worried by the argument that two-point belts—lap belts—are more dangerous in some circumstances than not wearing a belt at all. There is an urgent need for the Government to commission dispassionate advice on this matter before any regulation of any description on seat belts is implemented, because at this moment the Commission is talking about two-point belts.
There is a cost involved. Seat belts on buses for transport to school—whatever their type—will mean the abandonment of the current rule that three pupils may sit on a seat for two persons. That is probably a good idea but who will bear the cost of that?
Finally, there is the problem of the protection of the very young children who now travel on school buses as the number of small primary schools is gradually reduced in all country areas. Are the Government interested in promoting special designs of buses or special protection for those very young children?
There is clearly no reason why the UK Government should not provide guidance on driver training and the safety of seatbelts. Indeed, I understand that it is perfectly within our power to legislate on the seatbelt issue. There are in particular very real problems connected with the safety of buses and minibuses used by school pupils. I should be most grateful if the noble Viscount would respond to the questions that I have asked.
5.58 p.m.
Lord Clinton-Davis: My Lords, first, I should like to thank the noble Lord, Lord Teviot, for introducing this subject for debate. It is appropriate that we should debate the issues affecting the coach industry, most particularly in relation to various elements of European Union legislation. The difficulty is that the debate has hardly been focused on particular topics. But I do not in any sense seek to indict the noble Lord for that fact.
I welcome the noble Baroness, Lady Thomas of Walliswood, to what the noble Lord, Lord Tordoff, has frequently referred to as "this transport club". Before he was elevated to his present lofty position of total inscrutability with regard to debates, he frequently said with great relevance, whenever anybody new participated in our debates, how nice it was to see a fresh face. We very much welcome the noble Baroness. I congratulate the noble Lord, Lord Tordoff, on his elevation. He and I spent many hours together debating issues of transport, for the most part very constructively. We often agreed and it is when one agrees that one can say one is totally objective—as we have always been in relation to these issues.
As the noble Lord, Lord Teviot, and the noble Earl, Lord Attlee, said, coach travel is a relatively safe form of transport. But many serious accidents have occurred in the recent past and many lessons should be learnt from those tragedies. Too many people have been killed,

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families bereaved and people injured. In those circumstances I shall address three issues affecting safety.
First, I shall deal with the question of seat belts—a matter with which we dealt during the course of the Deregulation and Contracting Out Bill. The response we received from the Government as to actions to be taken, or not taken was less than satisfactory. I hope that the Minister will be able to give us some further and better particulars of the actions that they are taking at European Union level in that regard. Secondly, I shall deal with drivers' hours and rest periods and, thirdly, with the enforcement of speed limits. One could go much wider but I propose to confine my remarks to those three topics.
The noble Earl, Lord Attlee, said that he was not convinced that a case had been made out for the wearing of seat belts. He rightly said that it is a complex issue and he was uncertain in his own mind in that regard. But the Government carried out a formidable analysis of the case for compulsory fitment of seat belts on minibuses and coaches and the results were announced in a Written Answer on 19th July. To put the matter in its correct context, it is right that I should deal with those conclusions.
The Government were convinced that the strength of the case for compulsory fitment of seat belts as a standard for all European manufacturers was clearly made out by the then Secretary of State for Transport, Mr. John MacGregor. It was stated that,
"We are formally requesting the European Commission to set the shortest possible timetable to require seatbelts on all new minibuses and coaches. This reinforces our call for action at the Transport Council in Luxembourg in June. We have also decided to seek the Commission's agreement for the UK Government to act ahead of the European Union to ensure that all minibuses and coaches are fitted with belts when specifically used for the transport of children".—[Official Report, 19/7/94; WA col. 261]
Those were interesting observations, which I welcome. The case is now conclusively made out and the Government are convinced that their research has established that seat belts are necessary. I am sure that by their use lives will be saved and injuries reduced. The cost involved would be relatively small. I understand that a fair estimate is that on a £10 coach ticket the cost would involve an extra 4p. We are therefore talking of extremely small-scale costs for an important saving of life and therefore that is not an issue. Although lap-belts are not as effective as three-point belts, they too will have a major effect in saving life and limb.
Why therefore have not the Government acted with greater promptitude? There was surely space in this legislative programme to be able to introduce enactments of that kind. The Government have said that, notwithstanding the arguments that have been adduced in a number of our debates, European Union legislation affecting the single market prohibits them from acting unilaterally. However, that is contradicted by the Minister's assertion that he is proposing—I do not know whether he has already sought the Commission's agreement—for the Government to act ahead of the European Union to ensure that all minibuses and coaches are fitted with seat belts when used specifically
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for children. If that is the case, they are utilising Article 36 of the Treaty, which provides that in certain circumstances a government is permitted to avoid prohibitions or restrictions on imports and exports of goods in transit on grounds of, among other things, the protection of health and life of humans. Consequently, that is what the Government are proposing to do in relation to seat belts on vehicles which primarily carry children. Why therefore should it not be extended over the whole field? The Government cannot have it both ways. Article 36 exists to be promoted in exactly these circumstances, provided that the Government do not collude in seeking to establish discriminatory rules in regard to trade.
I believe that the Government should utilise Article 36 in both cases. But perhaps the Minister can say when the application was made to the Commission for agreement in the first case to which I alluded. What has been the response of the Commission so far? Is there is a hold-up and, if so, why? Perhaps the Minister can respond to those important points when he replies. There is a growing impatience in this country with regard to measures that should be taken, and taken rapidly—ahead of the European Union as a whole —and which can be taken legitimately.
My second issue relates to the response so far of the Confederation of Passenger Transport, with which the Government have presumably been involved in a good deal of consultation. What is its view on these matters? Is it taking a negative attitude or does it support the Government's view, particularly with regard to coaches carrying children, where it is important that this unilateral action should be taken? Or is it opposing it? What is its view with regard to the wider application of seat belts in coaches generally?
I turn next to the question of drivers' hours and rest periods. I was involved in the regulations that emerged in 1986 to replace the former regulations in what was then called the "European Community". It is now called the European Union and some people, I understand, are confusing it with a large insurance company! But the European Union was previously known as the European Community.
The reason the Commission at that time put forward proposals for reviewing drivers' hours and rest periods was because the old system was found to be hopelessly complicated and virtually unenforceable. That applied throughout the European Community. When I advanced these proposals on behalf of the Commission, I met with a less than receptive response from member states generally. They seemed to want a concept in which one could have stricter regulations in this regard, but that they should not be too carefully and fully enforced. What we emerged with was a set of regulations that was almost as bad as what had prevailed previously; and notwithstanding all my blandishments, the member states insisted on rejecting the Commission's proposals totally, which, of course, they were entitled to do, and replacing them with their own half-baked scheme. That half-baked scheme remains today.
I should like to know whether the Government believe that it is necessary to have a new set of regulations here and what they are doing in that regard.

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If drivers at the wheel are excessively tired, then, as the noble Lord, Lord Lucas, pointed out in his intervention, serious accidents can so easily arise, and do. Indeed, I believe that in the terrible accident involving a number of American tourists last November there was evidence that the driver failed to take a proper rest before starting work, although I gather that the matter is still under investigation. However, that allegation was made. It is only one case. I am satisfied, from the evidence that was adduced before me, that there were very serious breaches of the regulations, then and now. What are the Government proposing to do? Does the Minister believe that enforcement is anything like sufficiently effective?
I turn to the next question, which is speed limiters. The noble Lord, Lord Lucas, has some doubts about the application of speed limiters. I do not believe that it is the Government's view that those doubts should be entertained and I certainly do not share that view myself. I welcome the introduction of regulations to restrict speeds to 70 miles per hour—new coaches are to be limited to speeds of 65 miles per hour—by the use of speed limiters. One thing is clear, however, and to this extent I believe the noble Lord is right: speed limiters are too easily disconnected. There is evidence that they have been disconnected, particularly in the case to which I have just referred.
Despite the use of limiters, and also the use of tachographs, speed limits are widely ignored by coaches and by heavy goods vehicles. Indeed, the Department of Transport survey of 1993 illustrated that one in five coaches—between 56,000 and 57,000 out of around 270,000 —broke speed limits on motorways in the United Kingdom. Some were recorded as travelling in excess of 80 miles per hour. The fact is that tampering takes place, both with the tachograph and with the limiters. I should like to know whether the Minister agrees that that situation needs further investigation; and if so, what the Government are proposing to do about it.
It is far too easy at the present time for the law to be broken. It is not good enough, and the situation needs to be remedied. When these serious accidents arose, I do not believe that the first reaction of the Government, which was to blame the European Union or European Community for not taking swift enough action, was at all justified. We are in a position of being able to act unilaterally in situations affecting the safety of our people. Of course, a case has to be made out that we are not engaging in arbitrary discrimination of trade and that we are not seeking to preclude others from entering the market for some bogus reason. But I do not believe that that is the case. Nor do I attribute such a motive to the Government. I believe that there is now an overwhelming reason for action. The Government have conceded part of the case, but why do they not concede the rest and stop behaving in an inconsistent way?
6.14 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, I am grateful to my noble friend Lord Teviot for providing this opportunity to debate the important matter of the impact of European Union legislation on
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the United Kingdom coach industry and I am very glad that a small but resolute band of noble Lords has contributed a great deal to that debate this evening.
European legislation covers a wide range of matters affecting the coach industry. The construction of vehicles is harmonised to eliminate barriers to trade and to provide a single market in vehicle manufacture. Harmonisation should also promote high standards of safety and environmental performance. Entry to the profession of PSV operator is covered by directives relating to good repute, financial standing and professional competence. There are rules relating to competition on international services and, on issues of safety, European legislation covers such matters as drivers' hours and speed limiters. The general effect of these measures is to ensure that competition in the provision of vehicles and coach services is broadly harmonised, and that must be a good thing for the consumer and for the industry. I understand, however, some of the worries which have been expressed about the effect on coach operators of some aspects of the legislation and I shall attempt to address those concerns in my remarks.
My noble friend Lord Teviot expressed concern about the proposal to apply VAT on intra-Community bus and coach travel. The purpose of the draft proposal is to clarify the position of transport by road and inland waterway which passes through different member states. Taxation would be at a single place—the point of departure—thus avoiding the possibility of double, or, in the obverse case, no, taxation. Although the purpose may be clarity, we share the concerns expressed by my noble friend. For that reason we have consistently opposed the proposal on the grounds that it discriminates against certain modes of transport. We would much prefer to see an all-embracing directive encompassing all forms of passenger transport. As it is, I understand that there is limited support from other member states for the draft proposal and it is unlikely to be taken further forward in the very near future.
Nothing contained in the draft proposal would make the UK have to start charging VAT on passenger transport within the United Kingdom, which is, as noble Lords have remarked, currently zero-rated. The decision to impose VAT in our own domestic circumstances is a matter within our own jurisdiction. Any amendment to the EC law to make charging VAT mandatory would be subject to unanimous agreement from member states.
My noble friend Lord Lucas emphasised the question of taxation on fuel. Arrangements for excise duty on fuels used by the various modes of transport differ, but for a variety of reasons. It has, however, always been the case since the fuel duty rebate scheme was first introduced giving local buses a substantial rebate that the rebate was not available to coaches.
As a consequence of EC directive 92/6 and national legislation, buses and coaches will be limited to a top speed capability of 65 miles per hour from 1st January 1996. This point was picked up and commented on by a number of noble Lords, some in favour and some against. We did not favour requirements on set speed being included in the directive, but all other member states were in favour. The reduction in maximum speed

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has led to a concern that coaches limited to 65 miles per hour in the outside lane will lead to bunching of faster moving traffic behind and therefore possibly dangerous driving manoeuvres. The enabling regulations were the subject of consultation recently and a decision will be made in the near future.
The issue of weights was mentioned by my noble friend Lord Teviot and by the noble Earl, Lord Attlee. While I understand the desire to increase the weight limit from 17 to 18 tonnes, the United Kingdom is constrained by the axle weight limit of 10.5 tonnes. The axle weight cannot be raised until the bridge assessment/strengthening programme has been completed. When it is, in 1999, 18 tonne coaches to the same vehicle specification as the rest of the European Union can be fully utilised in the United Kingdom. It is technically possible to increase the permitted weights of UK coaches to 18 tonnes, keeping the 10.5 tonnes axle limit. However, this would require modifications to the design of coaches to ensure a sensible distribution of the load between the axles.
My noble friend Lord Teviot raised the question of vehicle lengths. Rigid vehicles are limited at present by United Kingdom construction and use regulations to 12 metres. The European directive also limits vehicles used in cross-border trade to 12 metres. Countries can allow longer vehicles for national use in their own territory. Some have used that provision to allow rigid vehicles of up to some 15 metres.
As regards the liberalisation of international passenger services, they have been liberalised throughout the European Union as a result of two main pieces of European legislation. The first allows all services except for regular services and certain other specialised services to run without the need for authorisation. Instead they are required to carry only a control document giving details of the service the operator is running.
The second piece of legislation concerns cabotage, which is the term used for a service carried out wholly within the territory of a member state. An operator may now undertake certain types of cabotage journeys without a registered office in the relevant country. At present this applies only to closed door tours and to special regular services such as the carriage of school children, but from the end of 1995 cabotage operations will be authorised for all non-regular services.
The noble Earl, Lord Attlee, mentioned the Vehicle Inspectorate. I can assure him and the House that the efficiencies being sought from the inspectorate will not in any way reduce its enforcement effort.
Turning to the question of drivers' hours—a matter raised by the noble Lord, Lord Clinton-Davis, among others—I share the view that enforcement of the regulations on drivers' hours is a key element in road safety, and it also helps to ensure fair competition. The Vehicle Inspectorate Executive Agency has set up a drivers' hours taskforce to target drivers' hours enforcement, and nearly 1.75 million lorry and coach tachograph charts were checked in Great Britain in 1993–94.
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But the output of the tachograph—that is, the daily paper charts—is relatively time-consuming to check and there is clearly a limit to the level of enforcement that can be carried out without a disproportionate use of resources. That is why the Commission has brought forward a proposal requiring the installation of an add-on device to the tachograph which would enable data to be stored digitally onto a driver-specific smart-card.
Although the Government accept in principle the need for an alternative form of recording equipment, we are not convinced that the use of an add-on device is the right approach and, in particular, we are concerned about the security of electronically recorded data. We believe that the Commission proposal has a long way to go yet, and, as usual, we shall bear in mind the views of the industry in our discussions, and indeed the views of your Lordships which have been put forward this evening.
Lord Clinton-Davis: My Lords, I thank the noble Viscount for giving way. In fact the situation does not change very much from the days to which I was referring. There are always reasons for not doing things and not arranging for evidence to be more easily available. What are the Government themselves proposing? What suggestions are they making to the European Commission? Surely they have had long enough to decide these matters. We have had many years since these unsatisfactory regulations were brought into effect by the decision of the member states in conflict with the Commission. Surely the Government have had ample time to consider how a system can be set up which is properly enforceable.
Viscount Goschen: My Lords, I believe that the noble Lord has put his finger on the very point, which is enforceability. But I should remind him, as I mentioned earlier, that through the Vehicle Inspectorate Executive Agency we have set up a drivers' hours taskforce to target drivers' hours enforcement. We see enforceability as being absolutely crucial. At the moment the written tachograph sheet does seem to give the best solution to the problem. However, I agree with the noble Lord that it is time-consuming and does not necessarily represent the best use of limited resources.
Both the noble Baroness, Lady Thomas, and the noble Lord, Lord Clinton-Davis, very properly addressed the issue of seat belts. That is something which we have discussed on a number of occasions before, particularly during the passage of the Deregulation and Contracting Out Act, as it now is. I believe that this is an incredibly important issue and I welcome this additional opportunity to discuss it and to put on record the Government's vigorous position.
Perhaps I may begin by re-emphasising that the United Kingdom has been pressing the Commission for some years to amend the directives on seat belts and anchorages to allow us to make a requirement for belts on all seats in these vehicles. There was never sufficient support from other member states to effect a change. This is of course a European Union matter because of the important role of vehicle standards in establishing the single market for the coach construction industry.

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Despite an earlier lack of response which I have detailed, in February 1994 the Commission, with the agreement of member states, announced its strategy for improving coach safety, including amending the directives to require belts to be fitted to all seats in new minibuses and coaches. We expect proposals from the Commission early next year. I should stress again—particularly to the noble Lord, Lord Clinton-Davis—that we simply cannot act nationally to require belts to be fitted to all minibuses and coaches. We would be required to allow any vehicle to be registered in the United Kingdom which met European Union standards; that is to say, with seat belts only on exposed seats.
Lord Clinton-Davis: My Lords, I am grateful once again for the noble Viscount giving way. This is a matter where he and I have crossed swords before. Article 36, to which I referred earlier and to which I have referred in previous debates but without adequate response, exactly provides that protection where issues of safety affecting human life and health are involved. As I understand it, the Government have already sought permission as regards buses and coaches carrying primarily children. If that is the case, why do they limit the situation to that rather than extending it right across the board when they themselves are convinced that seat belts would lead to a saving of life and fewer injuries?
Viscount Goschen: My Lords, I agree with the noble Lord inasmuch as we have crossed swords on this matter before. I accept that he has considerable knowledge of the workings of the European Union, but what I do not accept is that we are wrong on this, despite the considerable debate that we have had this evening. I shall detail further the Government's position, why we feel that we cannot act unilaterally and the difference between acting across the board and acting towards a small, specified and highly targeted group such as vehicles used specifically for the carriage of children. I believe that the United Kingdom has taken a lead on this. We take it very seriously indeed. We believe that the best and the most enforceable and effective way of going about this is through the Union.
Following the tragic accidents which occurred late in 1993, a review of the technical and cost implications of fitting seat belts in minibuses and coaches was undertaken by the Department of Transport. That review indicated that, while three-point belts offer better
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protection than lap belts, as the noble Baroness, Lady Thomas, mentioned, in certain circumstances lap belts would offer significant overall benefits. I believe that that is the point which the noble Lord, Lord Clinton-Davis, was seeking to emphasise in his remarks.
As a result of this review, the then Secretary of State announced on 19th July as part of a package of new measures to improve minibus and coach safety that: first, he would request the European Commission to set the shortest possible deadlines to introduce compulsory fitment of seat belts in minibuses and coaches; secondly, that the United Kingdom would act ahead of the Union to require the fitting of belts in mini-buses and coaches which are used specifically for the transport of children; and thirdly, that manufacturers and operators would be encouraged to fit belts in both new and existing vehicles.
Those measures are being pressed forward as quickly as possible. The draft regulations are being prepared for a consultation exercise which will begin before the end of this year. The regulations will also be used to inform the Commission of our plans to implement the proposals.
As regards the points raised by the noble Baroness, Lady Thomas, on mini-bus driver assessment, she may know that there is currently no power to enforce such an assessment, but I commend the advice and guidance that is provided by the Community Transport Association to organisations that run mini-buses. I believe that it would be preferable to build on that basis rather than set up a separate, perhaps bureaucratic, scheme.
This has been a useful debate. It has helped to clarify the issues. We have discussed matters of concern to the coach industry and to the many noble Lords who are present. I should reiterate that removing some of the differences between European countries must be good for passengers and consumers as well as for the bus and coach industries. I hope that what I have said provides the necessary assurances that the Government are well aware of the industries' anxieties and will continue to bear their interests in mind during any negotiations, and that the Government are well aware that those who use coaches and buses are concerned about potential problems, particularly the seat belt issue. This has been a worthwhile debate. I thank again my noble friend Lord Teviot and all noble Lords who have taken part.
House adjourned at twenty-eight minutes before seven o'clock.