Lords Sitting of 12 January 1995

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

Former Nationalised Industries: Comparisons
Lord Orr-Ewingasked Her Majesty's Government:
How much money they paid each week to subsidise nationalised industries in 1979–80, and how much those formerly nationalised companies paid in tax weekly in 1993–94.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, nationalised industries used to cost the taxpayer about £50 million per week in 1979–80. In 1993–94, privatised companies paid about £50 million per week to the Exchequer of which about £40 million was tax, the remainder being dividends and interest.
Lord Orr-Ewing: My Lords, is my noble friend aware that that is very good news? However, ought it not to be more widely publicised, possibly by using a page in a newspaper—not the Guardian—to advertise such facts? We would then, perhaps, have the Opposition on our side because it would help to convert the 36 Labour MEPs who are so stubborn as to refuse to recognise just what has been achieved by that privatisation.
Lord Henley: My Lords, I thank my noble friend for that question; it is, indeed, a very helpful one. I shall certainly continue to sing those figures from the rooftops. From what I said, it is pretty obvious that the Treasury receives something of the order of £2.5 billion per annum in tax and other receipts from privatised industries. As my noble friend will be aware, a penny on income tax yields about £2 billion. Therefore, we can see that the benefits of privatisation extend not only to consumers but also, more generally, to taxpayers.
Baroness Castle of Blackburn: Would not the Minister agree that to lump all nationalised industries together in that obscure way is most misleading? Will the Minister help the House by being more specific?
Lord Hailsham of Saint Marylebone: What about Clause 4!
Baroness Castle of Blackburn: For instance, is it not a fact that the nationalised British Gas Corporation made substantial profits before it was privatised and was praised for its great management efficiency by independent consultants? Is the Minister aware that, in
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1985—the year before it was privatised—that nationalised body paid into government funds £900 million? Further, can the Minister give us the figure for the privatised British Gas plc for 1993?
Lord Henley: My Lords, what is more important—
Noble Lords: Oh!
Lord Henley: My Lords, what is more important is the fact that the performance of British Gas has improved no end since privatisation. The number of customers per employee has risen by more than 30 per cent.; gas sales per employee have increased by about 18 per cent.; prices of gas are down by about 23 per cent., excluding VAT; and standing charges are down by 30 per cent. in real terms since privatisation. Further, disconnections are at the lowest level since records began.
Lord Clark of Kempston: My Lords, does my noble friend the Minister agree that, apart from British Gas, if one looks at British Steel (which at one time cost the British taxpayer £1 million per day in subsidies) it will be seen that it now produces the same tonnage of steel with half its former workforce?
Lord Henley: My Lords, my noble friend is correct. Further, I can tell my noble friend that the time now taken by British Steel to produce one tonne of liquid steel is less than five hours. It was over 13 hours in 1979–80.
Lord Bruce of Donington: My Lords, the Minister obviously has a large number of facts at his disposal, in addition to the figures that he has already given to the House. However, will the noble Lord give us the figures regarding the assets of those industries that were written off? Is not the total amount of money involved around £6 billion that is owed to taxpayers?
Lord Henley: My Lords, privatisation proceeds have yielded some £60 billion since we started the policy of selling off. Privatisation proceeds have helped to restore public finance to good shape, thereby freeing resources for private investment. The public debt position as a result is now pretty sound. The net public sector debt is now 38; per cent. of GDP compared with 50 per cent. in 1979.
Lord Tebbit: My Lords, does not my noble friend agree that it is refreshing to hear such outspoken support for Clause 4 and nationalisation from the Benches opposite, as we have heard today? Does he not also agree that the figures which he has given suggest that we are having a very much better return from our investment in the family silver since we sold it than when it was locked up and costing us money?
Lord Henley: My Lords, my noble friend is absolutely correct and I think right to point out that the rhetoric from the party opposite is absolutely and totally opposed to privatisation.
Lord Eatwell: My Lords, is the noble Lord aware that the financial success of the privatised utilities is as much a consequence of their being private monopolies as any increase in efficiency? The noble Lord referred

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to the case of British Gas. Will he confirm, for example, that the rate of productivity growth in British Gas has fallen to little more than one-tenth of the rate of the decade preceding privatisation? In these circumstances of the deteriorating growth in efficiency of British Gas, is it not grotesque that the chairman who has never competed for a job in any market in his life should receive a pay rise of 75 per cent.?
Lord Henley: My Lords, it is absolute nonsense to say that the success is a result of the privatised utilities being monopolies. Their success is due to the fact that they have been freed by privatisation and put into the private sector. I give just one example. British Airways' productivity—I think even the noble Lord would accept that British Airways is not a monopoly—per employee has increased by more than 50 per cent. As the noble Lord well knows, when it comes to pay—as my right honourable friend the Prime Minister made absolutely clear—we do not approve of excessive pay increases but in the private sector pay is a matter for the shareholders and not for the Government.
Lord Marlesford: My Lords, will my noble friend join with me in congratulating Mr. Tony Blair on attempting to divest the Labour Party of Clause 4? Does he also recognise that it is an heroic task and that it is likely to take rather more than the next two-and-a-half years to rid the addict from the addiction—an addiction which is not wholly absent even in this House? The addiction will be there for longer than that before the Labour Party can be safely released into government.
Lord Henley: My Lords, I think my noble friend is quite right to point out that on the evidence of the attitudes from the party opposite and the attitudes of their Front Bench it is going to be a positively herculean task to convert that party to give up Clause 4.
Lord Monkswell: My Lords, is it not unfortunate that British industry continues to be assessed by the Government and their supporters on the short-term bottom line? What investment in fixed assets was made in the relevant industries in the relevant periods?
Lord Henley: My Lords, if the noble Lord had listened to me he would know that I had assessed their success very much not just in terms of the profits and proceeds to Her Majesty's Government but also the benefits to consumers. I elucidated a number of benefits to the consumers for which we are all very grateful. I could go on and give more; for example, the reduction in prices at BT—some 35 per cent. down since privatisation—and the fact that there are now 60 per cent. more pay phones than in 1984. If the noble Lord remembers that privatisation Bill, he will recall that we had a great many scare stories from the party opposite about the total disappearance of telephone kiosks in rural areas. In fact, the numbers have increased.
Baroness Castle of Blackburn: Since the Minister is so ignorant about British Gas perhaps I can give him the figure he refused to give to the House: namely, is he aware for instance, as he obviously is not, that in 1993
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the privatised British Gas contributed to government funds not £900 million, as its nationalised predecessor did, but £70 million?
Lord Henley: Yes, my Lords, but I think the noble Baroness is also aware, as I made clear, that British Gas domestic prices are down by 23 per cent. excluding VAT. That is a benefit to consumers, whom the noble Baroness professes to be interested in. Standing charges are down by some 30 per cent. and disconnections are now at the lowest level since records began.

Organisation of American States
3.18 p.m.
Viscount Montgomery of Alameinasked Her Majesty's Government:
Why the United Kingdom has not applied for observer status at the Organisation of American States.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, we are keeping the question of applying for observer status under active consideration.
Viscount Montgomery of Alamein: My Lords, in the light of that somewhat disappointing reply is my noble friend aware that the recent summit of the Americas designated the OAS as the principal instrument for implementing the newly proposed American free trade area? Furthermore, is my noble friend aware that 25 nations already have observer status at the OAS and it hardly behoves us to be lagging behind in this matter especially in view of our new found and very welcome interest in Latin America?
Baroness Chalker of Wallasey: My Lords, I am very well aware of my noble friend's great interest in Latin America; it is one which the Government share. Certainly, the OAS is now a much more effective organisation than it used to be and its role in supporting the democratic process and protecting human rights has grown. It is beginning to promote regional trade, environmental protection and technical co-operation. It is beginning to be a very good organisation. That was why I used the words "active consideration" about something to which we shall no doubt return. It is in Britain's interests that we have much closer links with Latin America. After all, our trade exports have gone up by more than 50 per cent. in the past two years.
Baroness Blackstone: My Lords, in the light of what the Minister says about the importance of the work of the Organisation of American States, including, for example, monitoring human rights in the current situation in Haiti, can she tell the House what will determine whether we seek observer status since it is under active consideration? It would be helpful to know what is currently holding us back and what would encourage us to make a request for observer status.
Baroness Chalker of Wallasey: My Lords, the matter is under active consideration at this very moment. I am not in a position to give your Lordships a specific

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answer today. However, I made clear in answer to my noble friend's Question that I believe it is a good thing. The permanent observer status which the noble Baroness seeks to persuade us to take up would give us even greater commitment to the region, which is changing rapidly for the better. We have an increasing influence in the region, specifically on difficult issues such as human rights, because we now play a much more active role. I hope that I shall have good news soon.
Baroness Hooper: My Lords, given the numerous reasons that my noble friend the Minister has enumerated, and given also that the OAS is an organisation to which all the Latin American, Central American and North American countries belong and that 1995 has been designated by both the Foreign Office and the DTI as a year in which they will give a push to British industrial and investment activity in the region, would it not be a timely moment to give the active consideration a further push? If resources happen to be a problem, is there any reason why the task should not be covered from our embassy in Washington?
Baroness Chalker of Wallasey: My Lords, my noble friend is very perspicacious. Next week at CBI headquarters we have the launch of the Latin American trade campaign by the Foreign Office and the DTI. We are considering all these matters. Certainly, we would need to take great care in our representations, even as permanent observers in the organisation. A way will be found to make sure that we do that as soon as possible.
Lord Kennet: My Lords, is not a further good reason for our having an observer the fact that we still possess overseas territories in the western hemisphere, in the Caribbean?
Baroness Chalker of Wallasey: My Lords, that is obviously a further consideration. We look after both our dependent territories and other members of the Commonwealth in the Caribbean without membership of any specific organisation other than those covering the Caribbean. However, trading links between the Caribbean dependent territories and their mainland neighbours are also growing. It behoves us to see how we can help those Commonwealth countries in the Caribbean through our links with Latin America.
Baroness Young: My Lords, does my noble friend agree that great interest has been expressed in all parts of the House in this matter? Outside the House, among the business community, great importance is attached to sending an observer to the OAS. When she considers the matter within her department will my noble friend draw attention to those facts? Will she also express the importance of giving support to the new secretary general of the OAS, the former Colombian president, who took up office last September?
Baroness Chalker of Wallasey: My Lords, I am most grateful to my noble friend. We very much welcome the election of former President Gaviria as secretary general. We shall give him such support as we can. While we are not as yet permanent observers it may not be long before we become so.
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I underline what my noble friend said about business support for the development of trade. I mentioned the increase in our trade exports over the past two years. It is also noticeable that our investment is increasing by leaps and bounds: £3.1 billion in 1991, £5.2 billion in 1992, and further increases in 1993 and 1994. I believe that, with the conference next week and all the other efforts that we are making, this is an area of great opportunity for Britain and that we should seize it.
Lord Cledwyn of Penrhos: My Lords, finally, and very importantly, is the noble Baroness aware that the strong Welsh settlement in Patagonia is also very much in favour of our making such an application?
Baroness Chalker of Wallasey: My Lords, all the reasons seem to be positive. That augurs well.

Trident
3.25 p.m.
Lord Jenkins of Putneyasked Her Majesty's Government:
How many people they estimate would be killed if only one of the 192 warheads which can be carried by a single Trident submarine were to be dropped today on the city of Hiroshima.
Lord Henley: My Lords, Britain's nuclear weapons are a deterrent against aggression. Their value is in preserving peace, not fighting wars. No useful purpose would be served by attempting to answer a hypothetical Question of this sort.
Lord Jenkins of Putney: My Lords, as the noble Lord is apparently unable to answer the Question, perhaps permit me to answer it for him. Will he consider the fact that the original bomb dropped on Hiroshima killed 200,000 immediately, and another 100,000 died subsequently—a total of 300,000? The bomb operated at about 15 per cent. of efficiency. Therefore, as there are 192 warheads on the Trident, each one of which is certainly no less efficient than the bomb which was dropped on Hiroshima, it is probable that any one of those warheads could wipe out Hiroshima and all its inhabitants completely, although they now number just over 1 million.
Therefore, does the Minister agree that the vessel which is traversing the globe has a lethal capacity of incredible size? What on earth is the use of the thing? Or, to use the words of another noble Lord who is not here today but who put the matter more effectively than I can, what is the bloody use of the thing?
Lord Henley: My Lords, as I made clear in my original Answer, we believe that no useful purpose would be served by answering the hypothetical Question which the noble Lord asked. Perhaps I may correct one or two of the noble Lord's facts. As my right honourable friend the Secretary of State announced as long ago as 1993, Trident will deploy with no more than 96 warheads and may have many fewer. Also, as I

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announced yesterday, by the time Trident is fully operational the explosive power of our nuclear arsenal will be more than 25 per cent. less than it was in 1990.
Lord Dainton: My Lords, is the Minister aware that the Question, in the form in which it has been put, is quite unanswerable, even if it is hypothetical? I speak with almost 50 years experience of the subject, some of it as chairman of the National Radiological Protection Board. I should like to say to the House simply that damage could only be due to burn, blast and radiation, and unless one knows the height of burst, the precise position and the exact nature of the buildings which now exist—and which are not those which existed when the bomb was dropped on Hiroshima—and unless one also knows something about the curative power of modern medicine for the hurt which may be caused, it is quite impossible to make an estimate that has any credibility, whether it be an official government reply or the best speculation of any amateur.
Lord Henley: My Lords, I can only thank the noble Lord for that most helpful piece of information. I hope that the noble Lord, Lord Jenkins, also took considerable note of what the noble Lord had to say.
Lord McIntosh of Haringey: My Lords, what is the lesson to be learnt from this exchange? Neither the noble Lord, Lord Dainton, nor, I am sure, the Minister, is suggesting that anything less than many thousands or hundreds of thousands of people would be killed. The fact that we cannot give a precise answer to the Question does not mean that these weapons are less terrible.
Lord Henley: My Lords, nobody said that they were not. But they serve a very useful purpose as a deterrent and they have provided for our security for over 50 years.
Lord Jenkins of Putney: My Lords, does the noble Lord agree that the deterrent is excessive? The lethality deployed is enormously overdriven. It is an enormous waste of taxpayers' money. Will he not look at the matter fairly and agree with that?
Is he aware that more accurate estimations have been made by the Japanese? Is he also aware that a reasonable, informed guess can be made? I shall be able to put that estimate in Written Questions to the noble Lord rather than taking up the time of the House this afternoon.
Lord Henley: My Lords, I believe that it is a minimum strategic nuclear deterrent, and that is all. As I said, the explosive power of our nuclear arsenal will, when fully deployed, be some 25 per cent. less than it was in 1990. As regards costs, Trident is expected to absorb less than 2.5 per cent. of the defence budget over its procurement period. It is coming into service well under its original estimates.

Exports of Livestock
3.30 p.m.
Lord Swanseaasked Her Majesty's Government:
Whether they will take immediate steps to prohibit live exports of livestock to the Continent.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, legal advice is that it is not open to Her Majesty's Government to prohibit exports of live animals to the Continent, since to do so would contravene Article 34 and other articles of the Treaty of Rome. However, we shall continue to work hard in the European Union to achieve, Community-wide, limits on journeys to slaughter and a ban on veal crates. We have also been examining how opportunities can be created—with the help of existing grant schemes where possible—for farmers to find new domestic markets for their male calves. We trust that all interested parties will join in this initiative, including Compassion in World Farming and the RSPCA, to whom my right honourable friend outlined these plans at a constructive meeting this morning.
Lord Swansea: My Lords, I can hardly say that I am grateful to my noble friend for that Answer, although I do not blame him personally for its content. Does it mean that those unfortunate animals—animals have feelings—are condemned forever to endure the privations about which we read daily in the press? Does not the Treaty of Rome provide for derogation in certain cases? Is this not a case for derogation?
Earl Howe: My Lords, I believe that there are two strands to my noble friend's concern: the transport of the animals; and the conditions in which the animals are kept when they reach their destination. We believe that it is possible to transport farm animals in ways that are acceptable from a welfare point of view. The Ministry takes great care only to authorise those routes which provide, and carriers which adhere to, proper welfare standards.
The subject of veal crates has achieved some publicity recently. We are setting an example in Europe. We have banned the veal crate in this country and our efforts will continue to be directed towards achieving agreement that such crates should be banned across the European Union.
Lord Ennals: My Lords, is it possible for the Minister to give an assurance that his right honourable friend the Secretary of State, in his role as a farmer, would fully comply with such an agreement in the European Union if, as we hope, it were to be achieved?
Earl Howe: My Lords, I am sorry that the noble Lord should see fit to comment on a Member of another place who is also a highly conscientious and able Minister. My right honourable friend very rightly distanced himself from the farm in which he has an interest when he was appointed Minister because of his ministerial office. He therefore takes no active part in the management of the farm. He has, however, made clear on repeated occasions his distaste for and disapproval of

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veal crates. As I said, my right honourable friend and all my departmental colleagues are working to help farmers to identify domestic markets for their calves.
Lord Renton: My Lords, is my noble friend aware that some very bad cases have come to light of old horses being exported from this country to the Continent, and of their being badly ill treated when they reach there? Although one hears Article 34 of the Treaty of Rome in mind, will the Government bear in mind that this situation has occurred and could occur again? Will they be vigilant about it?
Earl Howe: My Lords, my noble friend makes an important point aout horses. In fact, as he will know, the minimum value rules ensure that no horses are exported from this country for slaughter, although we all know that horses may be exported for sporting purposes and such like. That falls into a different category. However, we place great importance on maintaining our ability to adhere to the minimum value provisions. I am sure that that is a view which will be common to many of your Lordships.
Lord Stoddart of Swindon: My Lords, do the Minister and the House realise the enormity of the statement which the Minister made in his original Answer: that the House of Commons, and indeed Parliament, are not able to legislate on a matter of vital and great importance to huge numbers of British people; that they are not enabled to legislate in the face of riot and mayhem at our ports; that they are not able to legislate to prevent the enormous sums of public money being expended through the police presence at our ports and airports; and that they are not able to seek to prevent the export of animals for veal which are being brought up in disgraceful and barbarous conditions? If that is what he is saying, by God we have certainly lost our sovereignty in this country and the Government ought to be damned well ashamed of themselves.
Earl Howe: My Lords, I think that the noble Lord misunderstood my Answer. I said that we had set an example in Europe by banning veal crates ourselves. As he will know, the common agricultural policy is a means of ensuring fair competition in Europe in agricultural products. It is a regulated market. It is simply not open to us to dictate to other member states what their standards of animal welfare should be beyond the minimum standards laid down by the Community. What we now have to do is to win the debate in Europe. We have argued long and hard for improved welfare standards. We shall continue to do so; and we are making good progress.
Lord Cockfield: My Lords, while accepting that my noble friend the Minister is acting on legal advice, perhaps I may ask him how he reconciles his legal advice with the specific provisions of Article 36 of the Treaty of Rome which acts by way of derogation from Article 34 to which he referred. It reads as follows:
"The provisions of Articles 30 to 34 shall not preclude prohibitions or restrictions on imports, exports"—
and I ask him to note the word "exports"—
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"or goods in transit justified on grounds of public morality, public policy or public security: the protection of health and life of humans, animals or plants".
Earl Howe: My Lords, my noble friend refers to Article 36 of the treaty and specifically to the provisions on public morality and the protection of animal health. As regards public morality, the European Court of Justice has restricted the operation of that phrase to matters such as pornography. As regards the protection of animal health, there is specific Community legislation which regulates the welfare of animals in transit so that an export ban would be illegal. Any other restriction would have to accord with the general provisions of the treaty and with the directive on protection of animals during transport. In particular it would have to be proportionate and non-discriminatory. We believe that our requirement, in relation to farm animals, for resting, feeding and watering at 15-hour intervals is proportionate and fair.
Lord Gallacher: My Lords, will the noble Earl state whether the Government support present research by the Hannah Institute aimed at extending indefinitely the period of lactation of cows so obviating the need for dairy cows to produce calves annually? Do the Government support that research institute financially either directly or indirectly?
Has the noble Earl seen the letter from the director of the institute in The Times of 10th January which indicated that the institute's research in that direction has gone a considerable way and is likely to be successful?
Earl Howe: My Lords, unfortunately I am unaware of that particular research programme. However, I shall write to the noble Lord with an answer.

Easter Recess
3.39 p.m.
Lord Strathclyde: My Lords, it may be for the convenience of the House to know that, subject to the progress of Business, it is expected that the Easter Recess this year will be taken during Holy Week, and that the House will resume shortly after the Easter Monday Bank Holiday. It may also be for the convenience of your Lordships if I say that, as usual, it is expected that the Whitsun Recess will be taken during the week of the late May Bank Holiday on Monday 29th May.

Select Committees
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Inglewood be appointed to the Select Committees on Broadcasting and Procedure of the House and to the Board of Parliamentary Broadcasting Unit Limited (PARBUL) in place of the Earl of Arran; and that the Earl of Lindsay be discharged from the Select Committee on Sustainable Development.—(The Chairman of Committees.)
On Question, Motion agreed to.

Criminal Justice (Scotland) Bill [H.L.]
3.40 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Macaulaof Bragarmoved Amendment No. 1:
Before Clause 1, insert the following new clause:
("Relief for non-compliance with Acts of Parliament relating to the administration of criminal justice
.—(1) The Court may, in its discretion, if it considers it to be expedient and in the interests of justice, relieve any party from the consequences of any failure to comply with the provisions of any Act relating to the administration of justice in criminal cases, provided the Court is satisfied that such failure was due to mistake, oversight or other like cause, and not being a wilful, negligent or careless omission on the part of the party seeking relief from the Court.
(2) Any relief under subsection (I) above shall be granted or refused at the discretion of the Court having heard submissions on behalf of those concerned in the proceedings, and, where granted, the Court may make such orders and impose such conditions as appear just and proper and in the interests of justice to enable the proceedings to continue.").
The noble Lord said: This is not the first time that the amendment has been put before your Lordships' House. The last time it was greeted not with disdain but with some degree of diffidence. I make no apology for proposing it again because since the Bill was last before the House there have been incidents in Scotland where, in the public eye, justice does not appear to have been done as a result of purely administrative oversights on the part of the prosecution.
The amendment in my name applies to both the prosecution and the defence. It is designed to give a degree of flexibility to the criminal law which at present exists in the civil law. I appreciate as much an anyone that in the criminal system one must protect the rights of the individual, but at the same time this Parliament has a duty to recognise public anxiety about technicalities allowing people to get away with crimes. For obvious reasons I do not care to name them, but there have been one or two cases where there has been a failure to serve a notice of penalties in the court and the court has then said, "We cannot do anything about it because there has been an administrative oversight". I can think of one major criminal case involving a £500,000 alleged fraud on the public purse in the west of Scotland where a sheriff omitted to sign the interlocutor to continue the case from one day to another. Counsel came in, quite properly, in his client's interests, when the case was called the second time, and said that the whole proceedings were incompetent because the sheriff had failed to sign the interlocutor. The case was dismissed.
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Whether or not the person who was charged was guilty of defrauding the public authorities of £500,000 is neither here nor there. What is important is that, looking at that example, the public must say to themselves, "What kind of system do we have when pure technicalities like that can allow a person not even to stand trial?" That is why the amendment was put down.
For those Members of the Committee who are interested, I have worded the amendment carefully to deal with two situations. One is that the court is satisfied that any failure to comply with any Act of Parliament relating to criminal proceedings was due to,
"mistake, oversight or other like cause"—
in other words, that is just the way that it happened—
"and not being a wilful, negligent or careless omission".
That leaves it open to the presiding judge to say to the Crown or the defence: "Well, that was negligent and careless and you will have to bear the consequences of it by losing the prosecution". Alternatively, if it is a matter of lodging a special defence in a criminal trial that is not allowed by the court, then the person involved could take action against the solicitor.
I have worded the amendment carefully and left the whole matter to the discretion of the court. Subsection (2) states:
"Any relief under subsection (1) … shall be granted or refused at the discretion of the Court having heard submissions on behalf of those concerned in the proceedings".
The amendment then gives the court discretion to make such orders as it sees fit and proper in the interests of justice,
"to enable the proceedings to continue".
By "proceedings", I mean not only trials but, for example, proceedings in the Court of Appeal. This is purely anecdotal, but I was told recently of a person appearing in the Appeal Court who appealed against a conviction for murder. The matter is now being continued, but when the defendant appeared his solicitor was not there. I do not know whether there was legal aid, but the court continued the case. The man was expecting his solicitor to be there, and he was forced to go on with the case which was later adjourned in order to obtain notes in evidence from certain witnesses. If that had not happened, the man charged with murder—and whether or not he was guilty is neither here nor there—would have appealed against his conviction and at being forced to go on in the absence of legal representation. Incidentally, what happened was probably in contravention of the European Convention.
Those examples spring to mind. I tabled the amendment in the hope that the Government would take another look at it. I seem to remember that a former Lord Advocate, the noble and learned Lord, Lord Cameron of Lochbroom, indicated that perhaps there were situations where such a matter might be applicable within the criminal law, to keep the balance between the rights of the individual and the public interest. In those circumstances, I beg to move.
Lord Renton: Before the noble Lord sits down, perhaps he would clarify one matter. Subsection (1) of the amendment refers to:

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"failure to comply with the provisions of any Act relating to the administration of justice in criminal cases".
Does the noble Lord intend to refer there to the administration of justice on both sides of the Border, or not? Quite frankly, if this were intended to refer to the administration of justice in England and Wales, we would have to consider it in the light of the law of England and Wales.
Lord Macaulay of Bragar: I am grateful to the noble Lord for his intervention. However, the Committee will notice that the title of the Bill is the Criminal Justice (Scotland) Bill. It only applies to England in three sections, mainly under Clause 89. The amendment was only meant to cover the administration of justice in Scotland. Of course, if the administration of justice south of the Border should find it convenient to adopt the civilised practices of Scotland, then so much the better.
Lord Fraser of Carmyllie: In bringing forward the amendment, the noble Lord has raised an issue of considerable significance. In effect, he is raising the question of how innocent oversights or simple mistakes should be resolved in the context of criminal proceedings. His proposal is to give a general power to grant relief by the court in every case, no matter what that failure might be.
In some respects, having been a prosecutor, I see the attraction of that, but I am concerned at the effect that the amendment might have on the general conduct of business in our courts. It is a significant feature of our system that considerable importance is placed on the observance of the detailed procedures set out both in subordinate legislation and in statute. Indeed, the consideration of matters which might lead to the conviction and imprisonment of an individual are accorded such importance that a great many detailed provisions have been deemed to merit enactment in primary rather than secondary legislation.
I would therefore be unhappy with an amendment which proposed in effect that the court should have general powers to waive observance of those procedures, albeit in circumstances where the court is satisfied that there was no wilful, negligent or careless omission on the part of the applicant. I would consider it preferable to maintain the discipline of the existing statutory procedures affecting, as they do in so many cases, the liberty of the individual. They have been set down for a purpose. It is important that all those who are involved in the criminal justice process pay particular attention to regular observance of them and ensure the attention to detail which, I am sure the noble Lord would agree, is a hallmark of the criminal justice system in Scotland.
If there are particular requirements by way of time limits or whatever that are considered to merit special dispensation, I would certainly be willing to consider making special limited provision. But in the absence of specific instances I would not like to see a general power introduced as the noble Lord suggested. However, if he has particular circumstances where he
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believes it might be desirable to allow such a dispensation I suggest that he might return to the matter at a later stage.
Lord Macaulay of Bragar: I am grateful to the Minister for that answer. I have given one simple example of the sheriff who failed to sign an interlocutor and effectively blocked the administration of justice in the public interest. Is it not in the public interest that there should be a general discretion for the court to rectify that omission? Why should people get away with alleged crimes because someone has made an administrative error?
There is no greater protector of the interests of the individual than myself, as noble Lords will no doubt find during this debate. Indeed several Members of the House will make it perfectly clear that the interests of the accused must always be protected. But the interests of the public equally must always be protected. In striking a balance I cannot see any reason why a general flexibility should not be built into the criminal system. However, I heard what the Minister had to say; I shall read his remarks with care. Perhaps we can resume the debate at a later stage of the Bill's passage through the House.
Lord McCluskey: Before the noble Lord withdraws his amendment, the example that he has given is not an error by a party but an error by the court. He is saying that if the court makes an error which renders the proceedings fundamentally null the court will then consider whether or not it has been caused by, among other things, carelessness. That seems bizarre. The provision is modelled upon mistakes by parties in civil proceedings. That is where it comes from. It is not apt to cover the case that the noble Lord has mentioned.
Secondly, the obligation to sign the interlocutor in a particular way is almost certainly not based upon an Act but upon a common law provision. So while one has sympathy with the notion, it would be unfortunate if we enacted a provision which does not meet the problem and then rendered it possible for parties in other circumstances to be relieved of the consequences of their carelessness, thus making something of a shambles of the whole administration of criminal justice in Scotland.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for his intervention. As my former devil master he teaches me another lesson in the administration of justice. I do not suggest for one moment that the court should be able to rectify its own mistakes. I made clear in explaining the reasons for tabling the amendment that it was a general provision. If the court makes a mistake, it would be open to the procurator fiscal or the advocate depute on behalf of the Lord Advocate to apply to the appeal court for the proceedings to continue and to rectify the error created by the judge in question. I do not see that as an insurmountable object in relation to the general provisions of the amendment.

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Amendment, by leave, withdrawn.
Clause 1 [Bail conditions]:
The Earl of Mar and Kelliemoved Amendment No. 2:
Page 2, line 7, after ("with") insert ("or intimidate").
The noble Earl said: Amendments Nos. 2 and 3 seek to extend the standard condition of bail which prohibits the person on bail from interfering with witnesses or obstructing the course of justice. I wish to add the words so that the condition will subsequently read that,
"the accused does not interfere with or intimidate witnesses or victims or otherwise obstruct the course of justice whether in relation to himself or any other person".
It will not have escaped the notice of the Committee that the victims of offending behaviour are a larger group than the group of witnesses. Victims are potentially anyone connected to the receiving end of an offence. For example, aggressive action against a relative may cause a witness to alter, modify or reduce his evidence and co-operation with the investigation and subsequent prosecution. Personal experience of social work with offenders leads me to recommend that the addition to the wording of this standard condition of bail will clarify the condition.
Part of the process of working with offenders is to ensure that they understand what they agreed to when released on bail. Amid the dismal euphoria of release from custody, it is very important that any instructions given are understood. Failure will lead to a breach of bail conditions. I beg to move.
Lord McCluskey: I am not persuaded that this is a valuable amendment. First, the Bill as drafted refers to a condition that the accused,
"does not interfere with witnesses or otherwise obstruct the course of justice".
Plainly, to intimidate a witness would be an interference within the meaning of that wording. Therefore, the words are an unnecessary elaboration.
My second and more fundamental point relates to Amendment No. 3. It refers to "victims". I trust that later today we shall discuss the matter of victims. But when you release a person on bail as an accused person, you cannot beg the question as to whether or not another person is the victim. That makes the assumption that you already have an accused and a victim whereas, to take an ordinary assault case, the person who is allegedly the victim may simply have been the loser of the battle. He may have started it. That is a very common case. The police come to the scene of a street fight. The losers are on the ground and the winners have absconded. It is assumed that the losers are the victims. In fact, they may well hve started the fight and have simply been overpowered by the others. There is therefore a deep objection in principle to using the word "victim" at this stage in a process. For that reason I urge the Committee not to accept the amendments.
Lord Monkswell: I can understand the noble and learned Lord's qualification about the use of the word "victim". Obviously, until someone is proved guilty, there is no victim, in one view of the case. The mover
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pointed out that what was important was the perception of the accused. We need to be very careful when discussing statutes that we do not write them merely for the purposes of lawyers and professionals who can understand the convoluted verbiage quite often associated with our statutes. We have to ensure that the words that are used are understandable to (dare I say it?) the man on the Clapham omnibus, the ordinary man in the street, who may be required to adhere to requirements of statute. That is very important. I am not sure whether the wording of the amendment is right, but we need to bear in mind the purpose of it and recognise its importance.
Lord Macaulay of Bragar: The noble Lord, Lord Monkswell, makes a very valid point. The Bill as it presently stands in generic terms covers victims. But it is important that the public should know that the law protects victims. Victims are one of the great subjects of discussion, and, as the noble and learned Lord, Lord McCluskey, said, we shall come to that at a later stage. But it should be made clear to people in the streets of the cities of this country (I extend this particular provision to England and Wales as well—it is in the streets where it matters and not in this august Chamber or in the other place—that witnesses have to face intimidation day in and day out. They have to face the consequences of giving evidence. It would be useful at least—I do not say that it would improve the present situation any more, but I suggest that if it does not do any good it will not do any harm—to accept the noble Lord's amendments. It should be made clear that people can be charged with intimidating witnesses or victims or otherwise obstructing the course of justice.
We who have practised north of the Border all know the terrible pressures that people are put under in sociological terms not to give evidence. They cannot get protection from the police because the police cannot protect every witness in every case. That would be impossible. But at least, by accepting the amendment, it would send a message to those who might intimidate or interfere with witnesses or victims that the courts will deal with them in a pretty severe manner. If it does nothing else, it will at least send a message to the community that Parliament is doing something to protect the innocents in our community who are the victims of violence, of whom there are too many these days.
4 p.m.
Lord Fraser of Carmyllie: This amendment has behind it an entirely laudable intention; that is to say, that neither victims nor witnesses should in any circumstances be intimidated prior to the proceedings. But, as the noble and learned Lord, Lord McCluskey, indicated, my response to the noble Earl would be that the standard conditions as described in the Bill are already sufficiently wide in compass to cover the points raised. In particular, standard condition (c) clearly sets out that the accused who is granted bail must not interfere with witnesses or seek to obstruct the course of justice. Any attempt to threaten or intimidate either a witness or a victim, who in most cases will be a

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potential witness, would almost certainly involve breach of that condition and might also involve the commission of an offence.
Lord Macaulay of Bragar: I am sorry to interrupt the noble and learned Lord. He read from the Bill and said, "or seek to obstruct the course of justice". In fact, line 7 (on page 2 of the Bill) states:
"or otherwise obstruct the course of justice".
There is a big difference between the two: "seeking to obstruct the course of justice" and "or otherwise obstructing the course of justice".
Lord Fraser of Carmyllie: If it is a question of a witness being intimidated, I should have thought that it was perfectly clear to the noble Lord that that would amount to an offence under the law of Scotland. From his own experience, he will know that any accused person, or indeed any person, who has been convicted of intimidating such a witness prior to a trial can expect a fairly rigorous disposal at the hands of the courts.
Apart from the issue of the standard conditions, if it is considered desirable that there should be additional conditions to protect not just the victim, perhaps, but indeed the family of the victim, it would be open to the courts under the proposed new subsection (2) (b) (i) to impose additional conditions that it considered necessary to ensure that those standard conditions were observed. It might, for example, be appropriate to make special provisions for the family of victims to ensure that an accused liberated on bail stays away from that individual and his or her family. In every case those decisions will be taken by the court, having regard to all the information available to it and the specific circumstances of the case.
Therefore, while I share the views expressed from all sides of the Committee that we should give a proper focus to the position of victims, I do not consider that the amendment is necessary.
The Earl of Mar and Kellie: I am a little concerned that there appears to be some dispute as to whether there is a victim. If an offence has been committed, there are distinct victims. I agree that it is questionable whether or not the accused is the offender.
Perhaps my concern stems from the social worker approach, where it has to be explained to someone who has just been placed on bail what he or she is not to do. It is at that point that I should like to have had those extra words on the bail order paper that has been handed out.
However, I have listened to what noble and learned Lords have said and I should like to consider the matter further. I shall probably come back at Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 1 agreed to.
Clause 2 [Breach of bail conditions]:
Lord Fraser of Carmylliemoved Amendment No. 4:
Page 2, line 25, after ("sentence ") insert ("or disposal").
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The noble and learned Lord said: There are minor drafting changes to the structure of subsection (4) in Amendments Nos. 4, 7 and 8. However, the main effect is to require the court, when it has exercised its powers to take into account when sentencing that the offence was committed while on bail, to state how the sentence differs from that which it would otherwise have imposed if the offence had not been committed while on bail and to give reasons for that difference.
We consider that this requirement will ensure that defendants are left in no doubt of the seriousness with which offending while on bail is regarded and how seriously they will be dealt with. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmylliemoved Amendment No. 5:
Page 2, line 26, leave out from ("regard") to end of line 27 and insert ("to—

(a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;

(b) any previous conviction of the accused of an offence under subsection (1) (b) above; and

(c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.").

The noble and learned Lord said: Clause 2 of the Bill gives the court new powers to deal with offending while on bail. The provisions enable the court, in imposing a sentence for an offence committed while on bail, to increase that sentence up to specified maxima to reflect the seriousness with which the court regards the breach of its trust.
As the clause is drafted, however, the court would be required to have regard only to the fact that the offender was on bail at the time. In our view the court should be able to deal more severely with an offender who was subject to several bail orders at the time that the offence was committed compared with an offender who was subject to only one bail order. Similarly, the previous record of an offender in relation to bail and any previous decision by a court under the provisions of this Bill to increase a sentence for bail abuse ought to be relevant to the court's consideration of the appropriate sentence.
This amendment would provide that the courts may have regard to such additional factors in determining the sentence. I beg to move.
Lord McCluskey: I ask the Committee not to accept this amendment. I establish my credentials. First of all, let me say—it was inaccurately recorded in the proceedings of the Second Reading—that I sit as a bail appeal judge approximately one week in four and hear approximately 120 bail appeals on those occasions. I always take into account the matters which are specified in this amendment. I see no reason why one should not take them into account. I should be surprised if one were not entitled to do so. It would mean that I had been behaving very badly for a number of years as a judge.
Before I say anything more, let me tell the Committee that I have just got off an aeroplane at Heathrow having come back from the mud slides and gales of California,

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where I was studying the effects of the Californian appeals system, of which I shall speak a little later. The Committee will therefore not expect from me the fluency that I have sometimes sought to profess in this Chamber and I ask Members to forgive me for that. However, on this particular matter I suggest that these amendments are entirely unnecessary for the reasons that I gave.
It is a bad principle to clutter up the statute book with matters that are entirely unnecessary. First, if we put in unnecessary enactments, we give rise to a greater possibility of error. Secondly, it causes delay. Each person who is considering bail must go through a tick list of items and discover whether or not they have all been met. Indeed, I doubt whether the new subsection (2A) is necessary or desirable for the same reasons.
I want to make a point which applies to a number of provisions in the Bill but I make it in detail only at this stage. Members of the Committee will recall that the Renton Committee, of which the noble Lord, Lord Renton—then Sir David Renton—was the distinguished chairman, produced a report which dealt, among other things, with over-elaboration of statutes. For example, paragraph 6.5 says,
"Another source of difficulty frequently mentioned is the tendency on the part of Parliament to try to provide for every foreseeable contingency. Because of this tendency statutes are drafted in elaborate detail which makes them difficult to understand. This has called forth criticism from a number of sources".
There is then quoted a substantial passage from the evidence of Lord Emslie and Lord Wheatley, then the Lord President and Lord Justice Clerk of the Court of Sessions for Scotland. They said that,
"Most of the problems encountered by the Courts flow directly from the tendency of Parliament to ignore the virtue of enacting broad general rules in which the principal and over-riding intention can be readily seen, and to try to legislate in detail for particular aspects of the mischief which presumably the statute is intended to curb".
The report goes on to note that that criticism does not come from the judiciary alone and mentions a number of others, including the National Farmers' Union, though I do not believe that it has any interest in this specific Bill. I shall not go into the matter in any detail. The report elaborates that point and ultimately makes recommendations to the effect that Parliament should try to avoid that kind of elaboration. That recommendation is contained in paragraph 19.41 of the report.
I urge the Government therefore to withdraw the amendment and think again about the necessity for the provision they seek to amend on the grounds that it is unnecessary, unduly complex, wasteful, will cause extra work, and flies in the face of the Renton recommendations. For those reasons we should not waste our time enacting it.
Lord Macaulay of Bragar: Perhaps I can add something to what the noble and learned Lord, Lord McCluskey, said. The Bill, as we protested in November of last year, was produced a fortnight after the end of the consultation period—so called—on the part of the Government and here we are in January of this year, a couple of months later, discussing amendments to the Bill at the hand of the Government.
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It was made clear at the Second Reading of the Bill that the Government had taken advice; they had consulted here and there and heard everybody who was interested before producing this magnificent Bill. As a matter of information for the Chamber, and perhaps even those in Scotland may be interested to know, can the Minister say what inspired the amendment? Was it pressure from certain sources—for example, the police? Perhaps the Minister could enlighten the Committee as to what is behind it.
Having said that, on this side of the Chamber we are in favour of punishing people who commit crimes while they are on bail, and that must be looked at in context. But why do we see an amendment within a couple of months of the Bill being introduced in your Lordships' Chamber?
Lord Harris of Greenwich: I agree with the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Macaulay of Bragar. I find it difficult to understand the purpose of the amendment. When the noble and learned Lord, Lord McCluskey, began his speech the example that immediately occurred to me was the one he cited; namely, the views of the Renton Committee. The noble Lord, Lord Renton, unhappily, is not in his place and if he were here I am sure that he would say exactly what we have said during this debate on the amendment.
Perhaps the Minister will agree to look at the matter again between now and Report stage. There is no issue of substance involved, but it is totally pointless to add these words to the Bill. As the noble and learned Lord, Lord McCluskey, said, these are exactly the issues which a judge will take into account when deciding matters of this sort. It is cluttering up the statute book for no clear purpose. I shall be grateful, therefore, if the Minister will at least say that he will look at the matter again between now and Report stage to decide whether or not the amendment is necessary.
4.15 p.m.
Lord Hughes: I see a similarity between what was said on Amendments Nos. 2 and 3 by the Minister and what was said by the noble and learned Lord, Lord McCluskey. The Government argued against Amendments Nos. 2 and 3 on the basis that, while the proposal may be desirable it was not necessary. What was already present covered the point.
The noble and learned Lord, Lord McCluskey, said that he, as a judge, is already able to do the things which the amendment purports to be making possible for the first time. If the noble and learned Lord is correct, that he can quite properly do these things, then the argument can be put forward that the amendment is not necessary to make it possible for the noble and learned Lord to do what he is already doing.
Lord Fraser of Carmyllie: I am a little surprised that this matter creates some controversy. The clause gives the courts a new power to deal with those who offend while on bail. I understand the noble and learned Lord, Lord McCluskey, to say that he considers it desirable that he, as a judge, should be entitled to take into account a wide range of factors.

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Our concern was that the way the new provision is drafted at present restricts him in the number of factors that he can take into account. We therefore considered it desirable to take away that restriction and allow judges to take account of the full range of factors. That was the reason the amendment was tabled.
I am happy to look at the matter again if it is considered to be unnecessary and accordingly I shall not press it. I believe that the amendment is necessary but I am prepared to withdraw it at this stage and return to it at a later stage.
Lord McCluskey: Before the noble and learned Lord withdraws the amendment perhaps he will note that my complaint is not so much about the amendment, though it introduces unnecessary elaboration. My real complaint concerns the proposed subsection (2A). I should have tabled an amendment to illustrate that but was too busy to think of all the necessary details. Perhaps the Minister will bear in mind that my real complaint is that we do not need it.
Lord Fraser of Carmyllie: I understand what the noble and learned Lord says. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskeymoved Amendment No. 6:
Page 2, leave out lines 28 to 31.
The noble and learned Lord said: Amendment No. 6 is tabled in order to draw attention to a specific set of circumstances. The Committee will see on page 2, lines 28 to 31, that the provision provides that,
"The court shall not … have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment".
Clause 2 therefore amends Section 3 of the Bail etc. (Scotland) Act 1980. That section creates certain offences; namely, breach of bail conditions in one shape or form—failure to appear, or something of that kind. Clause 3(4) of the 1980 Act allows a person who is charged with a serious offence on indictment to be charged on the same indictment with a breach of bail. In many cases the bail was granted not in connection with the serious offence which he is now facing on indictment but in connection with a different offence.
The inevitable result, therefore, of charging the breach of bail in the same indictment as the serious charge is to disclose to the jury hearing the case of the serious charge that the accused is facing, or has faced, another and different charge or charges. That is contrary to the principle that when a person faces trial the jury should not be given any information showing or tending to show that he has faced, or is to face, any other criminal charge.
There are one or two minor exceptions to that general principle. For example, a person may be charged under certain circumstances with loitering, being a known thief. That necessarily discloses that he is a known thief and therefore has previous convictions. He might be described as a reputed thief. But these exceptions are few. The normal practice is evidenced in road traffic cases. If a person is charged with dangerous driving, or drunk driving, and he is also charged with driving while
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disqualified, the charge of driving while disqualified is put on a separate indictment or complaint. That is so that the question as to whether he was driving dangerously or driving while under the influence of drink is looked at dispassionately, without the man having been given a bad name in the sense that it is disclosed to the court that he has previous disqualifications. Accordingly, the two charges are kept entirely separate and the previous disqualification is not disclosed.
My purpose is to draw attention to the fact that these provisions, which have certainly been in force since 1980 and are only being modified in this provision, are offensive to the general principle that one should not disclose previous convictions when one charges a person with an offence. This is a very important point. I have learnt that California has now moved, under Proposition 115, to what is called truth in evidence whereby the previous convictions of an accused person are disclosed before guilt is determined. We do not want to get into that situation, which is a desperately bad one. This provision seems to be a tiny step in that direction, although if it goes no further, it would perhaps be acceptable. The Government should reconsider the whole position in relation to disclosing previous offences when charging people with an offence along with a bail offence.
Lord Macaulay of Bragar: Before the Minister answers, I am rather puzzled by the subsection. I can see the point of it, but what does the phrase "having committed an offence while on bail" mean? Does it mean that he has been found guilty of an offence? It is a simple question which begs an answer.
Lord Fraser of Carmyllie: I listened carefully to what the noble and learned Lord said, and I understand his more general concern about what is contained within the new provision. The effect of Amendment No. 6 would be to remove the provision in the new subsection (2B) which requires the court, in sentencing for the subsequent offence, to have regard to the fact that the offence was committed while on bail only where the fact that the defendant was on bail at the time of the offence had been libelled on the indictment or, as the case may be, specified in the complaint. In effect, and on its own, this would prevent the accused from being given notice that new subsection (2A) might apply. Subsection (2A) provides that where a breach of bail has occurred by the commission of an offence the accused will not be guilty of an offence under the Bail etc. (Scotland) Act 1980. In these circumstances it will not be open to the prosecution to libel on the indictment or specify on the charge that an offence of breaching a condition of bail has occurred. Subsection (2B) provides that bail should be libelled or specified in the complaint and provides the accused with an opportunity under Section 67 or Section 312 of the Criminal Procedure (Scotland) Act to challenge the fact. Failure to do so would mean that the fact was admitted.
While I said I understood the noble and learned Lord's general intention, Amendments Nos. 6 and 9 do not seem to achieve what he intends. The effect of the second amendment is that where the principal offence

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was proceeding on indictment and an offence of breaching a bail condition applied, the prosecution would have to proceed with an indictment separate from the principal one. Under the provisions of the Bill this would apply in those cases where a breach of bail conditions occurred through the accused not turning up as requested, interfering with witnesses, and so on, or not making himself available for the purposes of inquiries. The provisions proposed by the amendment would not apply to the offence committed while on bail. Nor is any provision made for proceedings which are held under summary procedure.
While I shall want to consider carefully what the noble and learned Lord had to say—I shall certainly do so before the next stage—I invite him at this stage to withdraw the amendment.
Lord McCluskey: I shall certainly do that. I accept that these amendments and many others are technically defective. I am not a draftsman. I was trying to draw attention to the general principle. Perhaps I should have linked this aspect expressly with the amendment to which the Minister referred. Amendment No. 9 says:
"It shall not be competent to include in any indictment a charge under this section, but such charge may be included in a separate indictment".
So long as the principle is clear—the Minister has plainly understood the point that I was seeking to make and has undertaken to consider it—I beg leave to withdraw the amendment and I shall not move Amendment No. 9 in due course.
Amendment, by leave, withdrawn.
Lord Fraser of Carmylliemoved Amendment No. 7:
Page 2, line 35, after ("sentence ") insert ("or disposal").
The noble and learned Lord said: In speaking to Amendment No. 4, I spoke also to Amendment No. 7. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmylliemoved Amendment No. 8:
Page 3, leave out lines 1 to 7 and insert:
("(2D) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (2A) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.").
The noble and learned Lord said: Similarly, in speaking to Amendment No. 4, I spoke also to Amendment No. 8. I beg to move.
On Question, amendment agreed to.
[Amendment No. 9 not moved.]
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord Macaulay of Bragar: I shall make only a short contribution to this part of the debate but I wish to draw attention to the fact that the amendments we have debated increase the sentencing powers of the court quite considerably. The Law Society of Scotland and the Glasgow Bar Association have expressed concern about the powers being given to the court in terms of Clause
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2(1) and new subsection (2C), if that is not too technical. Those noble Lords following the Bill will know what I am talking about.
An important question is raised. If the country is to take such a serious view, and quite properly, of crimes committed while on bail, there should be a right to a separate trial. The question has been raised—it is not one I particularly agree with—as to whether in Scotland we should introduce a right to trial by jury rather than the summary procedure in view of the effects on the individual concerned. I should have thought that the deterrent value of the present Bail etc. (Scotland) Act has been to some extent to undermine. What might be better is, rather than, as the noble and learned Lord, Lord McCluskey, said in relation to Clause 1, constricting the court by putting into statute what the court can or cannot do, to leave it open to the court to exercise its common law powers to impose such sentence as it deems appropriate in the circumstances revealed to the court regarding the commission of the offence.
It appears that this clause is tinkering with criminal legislation. If it is felt necessary in the public interest to impose more severe sentences, let the court deal with it within the flexibility of the common law of Scotland rather than get ourselves tied up in administrative or legislative procedure. I know the trouble one gets into south of the Border in trying to define intent and murder and that kind of thing, because there they are hidebound by statute. Let us free the courts to deal with people who offend on bail by imposing sentences which the court sees fit in the particular circumstances, and allow the Scottish Court of Criminal Appeal to tell the Scottish public whether or not a sentence was a proper one. I beg to move.
4.30 p.m.
Lord Fraser of Carmyllie: One of the main effects of the Bail etc. (Scotland) Act 1980 was to move from the previous practice of "money bail" to the grant of bail on conditions. A primary purpose of these conditions is to ensure the appearance of the accused as requested for any diet. An additional purpose of the 1980 Act, however, was to address the problem of those on bail committing further offences.
During the 1980s, as recording practices by the police improved, it became clearer that the scale of offending while on bail was both significant and growing. The noble Lord will be aware of a very widespread concern in Scotland over that abuse of bail. It caused additional work for the police and there was undoubtedly an increase in public concern.
This clause builds on the 1980 Act provisions by increasing the penalties which may be imposed for bail abuse and by introducing a new power for the courts to adjust the sentence which they would otherwise have imposed for an offence if it had been committed while the accused was on bail. At present where an offence is committed while on bail a penalty may be imposed for a breach of bail conditions. The impact of such a penalty for bail abuse may, however, be lost on the offender especially if any sentence is made to run concurrently.

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Accordingly, this clause provides that, where the court considers it appropriate, it may—and it is no more than "may"—impose a higher penalty for an offence than it would otherwise have done, where the offence was committed while on bail. Where the sentence is so increased the court must state the degree of difference and the reasons for the increase. We believe that that will leave the offender and others granted bail in no doubt whatever how seriously bail abuse is to be treated.
With that explanation, I hope that the noble Lord will feel that he can support this important improvement in the provisions as regards bail and will recognise that they will indeed help tackle the growing problem of bail abuse which has caused so much concern in Scotland.
Lord Macaulay of Bragar: There is no doubt that there is concern both in the public and the police mind. We read in the newspapers about chief constables complaining of crimes being committed while people are on bail, of the softness of the courts in letting people out on bail, and so forth. I can quite see where that opinion comes from. It must be very frustrating for police officers to see people who they think should not be out on bail, walking about the streets.
I still wonder whether it is correct to put a statutory limitation on the power of the courts rather than just leave the matter to the common law power of the courts in Scotland to deal with the gravity of the case as and when necessary. It may very well be that the sentences referred to at new subsection (2C) of Clause 2(4) will not be sufficient for the court to deal effectively with the offence and the fact that the person was on bail. However, like most of the movers of amendments on the Marshalled List today, I do not intend to take the matter any further at this stage. I hope those who are interested will note what the Minister has said.
Clause 2, as amended, agreed to.
Clause 3 [No bail in homicide or rape proceedings after previous conviction of such offences.]:
Lord Macaulay of Bragarmoved Amendment No. 10:
Page 3, line 17, at end insert ("or
(e) serious sexual assault").
The noble Lord said: For the convenience of the Committee, it may be appropriate to deal with Amendment No. 11 at the same time. As regards Amendment No. 10, I find myself in a bit of a quandary because I have given notice that I intend to oppose the Question that this clause stands part of the Bill. To put it in legal terms, perhaps I may present what I have to say on an esto basis on the assumption that this clause will stand part of the Bill. I suggest to the Committee that it might be appropriate to include the words, "or serious sexual assault".
This is quite an important issue which has become more prominent in recent years. I hope that those noble Lords in the Chamber who have experience of dealing with the victims of assault within the domestic area will contribute to this particular part of the debate. This matter is raised on behalf of abused wives in particular,
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although we are now finding out that there are also abused husbands, but they do not come to notice quite so much as abused wives.
The point behind this amendment is that because the definition of rape is so constricted in Scottish law, if this clause is to remain, the courts should be obliged to take notice of serious sexual assault which falls short of rape. In other words, in the case of an assault or an indecent assault on a wife or partner, whatever the phrase is these days, the courts should be able to take into account a serious sexual assault falling short of attempted rape.
Amendment No.11 raises the question of a person being charged with any offence which includes serious sexual assault. I appreciate that this may raise a fundamental issue—no doubt it will appear later in the debates—that if a person has been charged with an assault, that does not mean that he is guilty. That may undermine the basic assumption of innocence within our law.
I put the amendment before the Committee. It has been suggested by those who want to hear the Government's response. I do not move it with any particular enthusiasm because I am a defender of the presumption of innocence. For example, a husband is often charged with assaulting his wife or partner, but by the time the case comes before the court various developments have taken place such as intimidation, and the wife changes her mind. The amendment is really for the protection of the individual in the interim period between the alleged assault and the trial. We have our own time-scale in Scotland which ensures speedy trials for the category of offences in the proposed new Section 28A(1) where such offenders should not be allowed bail. I beg to move.
Lord McCluskey: I certainly would not want to take any technical objection to the amendment for reasons which I have already given in describing my own amendments. I do not believe that one can talk about serious sexual assault. It does not have a meaning. One of the difficulties is that one would have to confine the matter to very specified crimes if one were to go ahead in this way.
The point raised by Amendment No. '11 is one of principle. I seriously doubt the wisdom of proceeding with that particular amendment because, if one is exercising a discretion in relation to bail, the prosecutor would bring to the attention of the bail judge the fact that the accused faces several charges. That may be taken into account in the exercise of discretion. But if this amendment were to be carried, it would make it mandatory for the court to refuse bail simply because a person had been charged with such an offence. I should have thought that that was obnoxious in principle and that the amendment should not be accepted for that reason. Accordingly, I oppose Amendment No. 11.
Lord Fraser of Carmyllie: For the very reasons which the noble and learned Lord, Lord McCluskey, has given, I wish to resist Amendment No. 11, although I have some sympathy with the intention of Amendment No. 10. I find the position of the noble Lord, Lord Macaulay, somewhat curious. On the one hand, he says that he does not want Clause 3 to stand part of the Bill,

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but at the same time, by moving these amendments from the Opposition Front Bench, it appears that he wants to extend its scope yet further. I leave the noble Lord to resolve that dilemma for himself.
To follow what the noble and learned Lord, Lord McCluskey, said, I must advise the noble Lord, Lord Macaulay, that this is not just a technical quibble about drafting. There is no term "serious sexual assault". If we are to deprive people of their right to bail, we must be absolutely specific as to what those offences are.
For those reasons, I do not think that there is any real possibility of the noble Lord redrafting the amendment to provide the type of definition that will be necessary. In any event, however, given its defective character at present and given the point of principle that is objected to with regard to Amendment No. 11, I invite the noble Lord to withdraw Amendment No. 10 and not to move Amendment No 11.
Lord Macaulay of Bragar: I have been called a lot of things in my day; but this is the first time that I have been called "an unresolved dilemma" and that I have found out that I am "defective" in character. Nonetheless, I am sure that the Minister used those expressions in the best of spirits. In answer to the noble and learned Lord, Lord McCluskey, I should have thought that the use of the word "serious" is subjective. If a prosecutor is to be responsible for framing charges against people, clearly the court would take into account the nature of the complaint or the indictment against that person when considering whether the charge fell within that context.
As I said earlier, I have reservations about Amendment No. 11 because of the presumption of innocence argument. I entirely agree with the noble and learned Lord, Lord McCluskey, on that matter, and I beg leave to withdraw Amendment No. 10.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
On Question, Whether Clause 3 shall stand part of the Bill?
Lord McCluskey: I have given notice of my intention to oppose the Question that Clause 3 shall stand part of the Bill. The short point is that the amendment which this clause makes to the 1975 Act is totally unnecessary. To paraphrase it, it says that if a person has previously been convicted of murder, attempted murder, culpable homicide (or manslaughter, as the same crime is known in England), rape or attempted rape and has previously been convicted of one or other of those crimes and is brought before a court and charged with attempted murder or culpable homicide or rape or attempted rape, he shall not be granted bail.
On Second Reading, at col. No. 568 of Hansard, I asked the Minister whether he could give me any instance where circumstances of that kind obtained and bail had been granted. He did not answer at that stage. No doubt he has been very busy conducting his researches since then, so I hope that he will answer that question today. My impression is that the clause is
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entirely unnecessary and that no judge in his right mind—many of us are in our right minds—would grant bail in such circumstances. All that the clause does is to clutter up the statute book with provisions which are simply not necessary. I shall be interested to hear whether the Minister has managed to dig out such a case. If he has, I am sure that the circumstances must have been very special indeed and I hope that he will tell us about them. If he has not found any such case, surely the sensible thing to do is to abandon the provision altogether.
In our jurisdiction, removing the discretion of a judge is a very serious constitutional step. In California, and in the United States generally under the Sentencing Reform Act and a number of other provisions specific to particular states, judicial discretion has been whittled down until it hardly exists in relation to a great many matters. The situation is becoming serious. We do not want to go in that direction for the reasons that I shall have to explain later. We must be careful about saying to judges who deal with bail, and in particular to High Court judges, "You can have no discretion in a matter of this kind". I ask the Minister whether there is any evidence that this provision is necessary and I oppose the Question that Clause 3 shall stand part of the Bill.
4.45 p.m.
Lord Macaulay of Bragar: Likewise, I have given notice that I intend to oppose the Question that the clause shall stand part of the Bill. I thoroughly endorse what the noble and learned Lord, Lord McCluskey, said. The provision seems to put some form of restriction on the judge granting bail rather than extending the circumstances in which bail should be refused. Some time ago the case of Smith v. Her Majesty's Advocate laid down the circumstances in which bail should be refused; but, as far as I can recall, nobody bothers with it any more. Perhaps the provision is a way of statutorily trying to redefine what a judge should do. However, the judge must always be the master of the instance in balancing the public and private interests in every case that comes before him. As the noble and learned Lord said, the clause seems an unnecessary restriction on the judges' rights.
When I read Clause 3, I was concerned about new Section 28A(1) (b) and the question of culpable homicide, which is the Scottish equivalent of manslaughter. I know that that provision will be qualified by new Section 28A(2) (b) (i) which states that the person must have been sentenced to imprisonment. However, let us consider current developments in life and the case of a husband who kills his dying wife or the wife who kills her dying husband. If a husband smothers his wife who has only two weeks left to live, he will quite properly be charged with culpable homicide. The court may impose a sentence—in the public interest, as it sees it—of two years' imprisonment, taking into account all the tragic circumstances of the case. I use that as one example. But is that person, who has killed on humane grounds, to be denied by statute the right to bail? When hearing a bail appeal in circumstances of that kind—we have heard about such cases recently—is the court to be

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restricted in the hearing of evidence concerning certificates from the accused person's doctor, psychiatrist, psychologist or an expert in post-traumatic stress disorder? If the Bill stands as it is, a court could not take such information into account.
I bow to the experience of the noble and learned Lord, Lord McCluskey, who said that he has served as a bail judge for many years. But surely a court would have to say to the counsel or solicitor presenting an application for bail on behalf of someone in such tragic circumstances, who may have been wrongly incarcerated by the trial judge, "I am sorry. I understand what happened and that your wife was suffering badly and that you wanted to end her life in order to prevent her suffering any further, but I am afraid that the Government have introduced a statute which means that I cannot do anything about it and you will have to go to prison and stay there until your appeal is heard".
I am not making a carping point. I am citing that as an example of why the Government might like to reconsider this provision. They might like to ask themselves whether culpable homicide at least should be taken out of the categories of those proceedings where a person has been charged or convicted. Indeed, the provisions go even further because new Section 28A(1) states,
"charged with or convicted of … culpable homicide".
That means that the sympathetic spouse who has ended his partner's agonised life and who has been charged by the prosecutor has to languish in prison until the trial takes place and that a court has no power to release that person in the interests of humanity, if of nothing else, even where there is no risk to the community.
I am sure that the noble and learned Lord knows of many such cases. He must have read cases during his time in the Crown Office and in his present office with which he must have had considerable sympathy, and which must have raised questions as to whether the person should have been charged at all. In many cases—to use a colloquialism which is a piece of nonsense—someone walks free from court. No one ever walks free from court once he has been convicted; he has a conviction. I ask the Minister to look again at the provision. Depending upon his answer, we may look at the matter in a different light on Report.
Lord Fraser of Carmyllie: While I understand clearly what the noble and learned Lord said about the discretion invested in Scotland's judges, the law of Scotland already provides that the offences of murder and treason are not bailable. In those circumstances the discretion is already circumscribed. That has been the statutory position in Scotland since the Bail (Scotland) Act 1888. My understanding is that before the passage of that Act there was an extensive list of offences for which bail was not to be permitted. They were generally those offences which attracted capital punishment. Murder is not bailable in Scotland, because we regard it as the most serious of crimes, and it is for that reason, and for the protection of the public, that the law provides that persons charged with murder should not be released on bail.
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The provisions of Clause 3 seek to extend those principles to cases where a person has previously been convicted of one of the very serious offences specified, and subsequently faces similar serious charges. The noble Lord, Lord Macaulay, described a graphic and moving case of a man who might have done away with his wife in circumstances which might not ordinarily attract a custodial sentence. However, what needs to be remembered is that that same individual, before the provisions of the clause would be attracted, would have had previously to have committed one of those very serious offences. With respect to him, it is unlikely, to say the least, that the problem he has described would arise.
Clause 3 seeks to provide assurance to the public that, where a person has previously been convicted of a serious offence, and is then charged with further offending of a serious nature, he will not be eligible for bail. While the exercise of the grant of bail must reflect the presumption of innocence of the accused and the specific circumstances of the case, the refusal of bail must also be considered where there is a risk to the public. We believe that in the circumstances envisaged in Clause 3 the risks to the public are such as to require the accused to be remanded in custody.
The noble and learned Lord has asked me mischievously whether I have been able to trace a case of someone who has been convicted of one of those serious offences, charged subsequently, and granted bail. In posing the question, I have no doubt that he knew the answer. I am not aware of any such case. At worst, it seems to me that he is saying that the clause is unnecessary, and that he, as a bail judge, could not envisage circumstances in which he would wish to apply a discretion. So far as he and I are aware, there has been no case where a judge has exercised a discretion and allowed bail. There is a limited list where the discretion is already restricted. We are making this small addition to it. It may be in one view unnecessary, nevertheless, it provides assurance to the public in Scotland. It has been widely welcomed, and I should like to see the clause retained on the face of the Bill.
Lord McCluskey: The Minister mistakes the affability of my manner. I was not being in the least mischievous in raising the point. It was, and remains, a serious point. If there has been no case—I do not know the answer, but the Minister presumably has researched and found no case—in which a person with a previous conviction of the kind specified here has ever been granted bail, then the provision is entirely unnecessary. It is gesture legislation. It has nothing to do with anything real. We should not be engaged in such a thing. The law of Scotland is more serious than to be just a kind of football which is kicked around to make gestures in whatever direction. I do not know in what direction they are made, but I just do not understand it. It is not a mischievous point; it is a real point; it is a substantial point.
Lord Fraser of Carmyllie: I did not intend to indicate that I thought that it was not a serious point.

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When I used the word "mischievously" that was to indicate that I thought the noble and learned Lord knew perfectly well the outcome of my researches.
Lord McCluskey: Having read the Scotsman recently, the noble and learned Lord will know that sometimes such epithets are attributed to him when he has not even used them. So he must be careful when he does use them. In relation to the point about discretion, I suggest respectfully that the Minister's answer is not a sound one. The provision to which he refers is now contained in Section 26 of the 1975 Act, but it dates back to the 19th century. It states that all crimes and offences except murder and treason shall be bailable.
There may be exceptions to that, but it is a technical matter into which I shall not go. That of course imposes a limitation on a judge's discretion in relation to a specified charge of murder or treason. One can understand that, but to go from that position where judges always enjoyed discretion to saying, "You shall have no more discretion", is to take a significant step.
I do not know what consultation there was about this matter. I was one of the judges— judge A or judge B, I cannot remember—who figured in the bail report. I answered a great many interesting questions asked by researchers, but I do not recall being asked about that matter. I do not know what support there is. I do not know where this provision comes from. It is entirely unnecessary. It is unsound in principle. I ask the Government to consider carefully whether they want to press ahead with this pointless piece of unprincipled legislation.
Lord Macaulay of Bragar: Before the Minister replies, perhaps I may follow up what the noble and learned Lord has just said. Is the provision being introduced in the light of experience in England and Wales? If so, where can we find the statistics which suggest that people who fall within the categories described in Section 28A(1) do not abide by their bail conditions? It would be interesting to know. The more I look at Section 28A(1), the more I see it as a restriction on the right of the judge to exercise his judgment on behalf of the community.
I am not sure what statistics there are in the Crown Office, but I am sure that the noble and learned Lord the Lord Advocate could supply them. But do we know how many have been charged and convicted of attempted murder in the past year; and how many cases of attempted murder have been reduced to severe injury? Everyone knows—it goes without saying—that one can go to the prosecutor and say, "All right, forget the attempted murder, we will plead to severe injury". Down goes the charge to severe injury and in some cases the person does not even go to prison. If this provision remains, he will stay in prison on a charge which the Crown may have overstated. We have had discussions about that before. A person has been kept in prison on a charge of attempted murder which never sees the light of day in a court. I am at one with the noble and learned Lord, Lord McCluskey, in asking the Minister to take the matter away and look at it.
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The noble and learned Lord, Lord Fraser, suggested that I have knee-jerk reactions to the Bill. I am too old to have knee-jerk reactions, physically or legally. I do not have knee-jerk reactions and must make clear, as I did on Second Reading, that any contributions from this side of the Committee are not made in any carping or destructive sense. We are trying to be constructive because when the government change, as will be the case in the not-too-distant future, we shall be faced with the same problems. We hope to have the same degree of co-operation from the Minister in opposition as we are trying to give him now.
I ask the Minister to be reasonable. I know that he has a reputation for being reasonable, compassionate and sympathetic. I ask him to take the matter away and think about it.
5 p.m.
Baroness Carnegy of Lour: On Second Reading I asked those Members discussing the Bill from the point of view of lawyers not to forget the public. Having heard the discussion today, I believe that the public would be horrified to know that in such extreme circumstances someone could be granted bail. They would be even more horrified if someone were granted bail and offended again. It is not much comfort to know that all judges in their senses would never grant such an application. Although judges would never grant bail in such circumstances, it would be of great comfort to the public to know that they could not do so—
Lord Harris of Greenwich: Perhaps I may ask the noble Baroness why the public would be reassured. We are told that there is no evidence to show that bail has ever been granted in such circumstances. Therefore, we are discussing a non-existent problem. I can understand the political purpose, which is to demonstrate that one is being tough on crime, but there is no serious legal purpose in the proposal.
Baroness Carnegy of Lour: People are extremely anxious about law and order and bail and therefore that argument does not wash. The fact that it has never happened is not the point. This slight addition to the Bill would give the public considerable reassurance. I do not believe that it would cause a great deal of trouble to judges or to anyone else. It is not a large addition; it is merely an enlargement of the circumstances. I speak as a layman but I believe that Members of the Committee are disregarding the way people feel. The fact that judges have never granted such an application and never would is not a great comfort. Indeed, I can imagine the newspaper headlines!
Lord Macaulay of Bragar: I apologise for interrupting the noble Baroness. She speaks of public anxiety. The offences listed are attempted murder; culpable homicide, which is causing the death of another person by an unlawful act; rape; or attempted rape. Fortunately, those offences are not a regular feature of life in Scotland. I agree that people are anxious when such crimes take place and follow them with interest. However, people in Scotland, England and Wales are anxious about the multiplicity of crimes that affect their domain and their households both personally and

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physically. They are concerned, for example, with burglaries. But there is no mention of people who break into houses. They are the people who should be locked up. If we are to be vindictive let us legislate that way but let us get down to the core of crime in the community. The four offences listed are not the core of crime and anxiety in the community. The simple things in life have the most devastating effect on ordinary people. If we are to accept constriction, then let us extend it.
Baroness Carnegy of Lour: I suggest that when the noble Lord goes home he talks to a few people in the street and asks whether they believe that it should be possible for bail to be granted in these circumstances. I believe that he will find that their views are not those that he has expressed.
Lord McCluskey: Perhaps I may be allowed the indulgence of saying a few words in response to what the noble Baroness said. I agree that the view of lay people who are not lawyers is extremely important. The law must be comprehensible and, in a sense, it must make gestures. However, we enact a provision in Parliament in order to counter a mischief. When judges look at the interpretation of a statute, they ask, "What was the mischief at which this was directed?". That is the approach I take. The answer is that there is no mischief because nothing is happening that we want to stop and nothing is failing to happen that we want to promote. Therefore, it is pure. One might as well enact Clause 56 on the basis that wickedness is bad. It is silly to make gesture enactments of that kind. One would then be doing what the noble Lord, Lord Renton, distinctly said should not be done; that is, cluttering up the statute book with unnecessary legislation. This is an important point. I cannot imagine that if the clause is carried today there will be dancing in the streets of Govan.
Lord Fraser of Carmyllie: We have probably said all there is to say about the clause. I share the view of my noble friend Lady Carnegy. The noble and learned Lord, Lord McCluskey, asked what was the mischief. Clearly, the mischief against which the clause is directed is that there should be no possibility whatever. At present there is a possibility that a man who has been convicted of rape in Scotland and is later charged again with rape can be given bail. I believe that if I asked the women of Govan whether they believe it right that a person previously convicted of rape and charged again with that offence should be out on bail they would give a simple, unequivocal answer. I believe that it is just as well to give them the reassurance that there is no possibility of that by including the provision as drafted on the face of the Bill.
Lord Harris of Greenwich: In the light of the discussion about Govan, I wonder what the people there would say when asked, "This person has been charged with housebreaking and has previously been convicted of that. Do you believe that in any circumstances he should be granted bail?". I suspect that the noble and learned Lord will know the answer to that question. Are
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we really going to start legislating on this basis? It is a non-existent problem. I fear that it is being proposed exclusively for party political reasons and for no other.
Lord Fraser of Carmyllie: I do not accept that argument. It is a reassurance that can be given to women who not only have never voted Conservative but have no intention of doing so. The provision is such that they will be reassured that there is no possibility of bail being granted. For that reason, it is desirable that it should be on the face of the Bill. The worst criticism that can be directed against it is that it is unnecessary. I do not accept that. If the discretion will never be exercised by a judge, it is proper that Parliament should put that beyond doubt and provide a specific enactment to that effect.
Clause 3 agreed to.
Clause 4 [Right of prosecutor to seek review of grant of bail]:
Lord Macaulay of Bragarmoved Amendment No. 12:
Page 4, line 29, at end insert ("and to his solicitor if known").
The noble Lord said: The amendment proposes the addition of the words "and to his solicitor if known" in order to ensure that the accused's solicitor is provided with a copy of the prosecution's application for a review of the decision to grant bail. One would assume that in most cases where someone is applying for a review of a refusal to grant bail there would be a designated solicitor. Certainly, it would not take a great deal to find out who was representing the accused.
As the noble Lord, Lord Harris, pointed out, we must be careful not to run a one-sided justice system in Scotland; or, indeed, in England and Wales. There must be a balance between the individual and the community. Any person whose bail is being reviewed by the court at the instance of the prosecutor should, if possible, have full legal representation and be able to consult at the earliest possible opportunity. I beg to move.
The Lord Advocate (Lord Rodger of Earlsferry): I accept that it may well be desirable for a person granted bail to obtain appropriate legal advice in the circumstances envisaged in the clause. However, the amendment falls into the same category of the unnecessary about which we have heard a good deal this afternoon. In practice, by intimation to the solicitor, that would be a way of intimating to the accused.
It is also the case that, in practice, where a solicitor is known to be acting, the procurator fiscal would intimate the application to that solicitor. While I accept that it is desirable that intimation should be made to a solicitor where such a solicitor is acting, I do not believe that it is necessary for that provision to be put on the face of the Bill. In the circumstances, I ask the noble Lord to withdraw the amendment.
Lord Macaulay of Bragar: I note with interest the remarks made by the noble and learned Lord the Lord Advocate. However, Members of the Committee will have noted that the amendment was carefully phrased so as to refer,
"to his solicitor if known".

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It appears to me that, for practical purposes, it is better if an accused person is represented by a solicitor from the outset. That saves a good deal of complicated court procedures later on. While I argued the other way around in relation to the last clause, on this occasion I believe that the Bill would be none the worse for the inclusion of the amendment which does not put any obligation on the Crown to seek out the solicitor. Indeed, the phrase "if known" has been chosen carefully. If a review was taking place it would, perhaps, be up to the accused to tell the authorities the name of his solicitor. That seems to be quite a practical way of ensuring that we do not have unnecessary miscarriages of justice and all the things that we hear about these days. I have listened to what the noble and learned Lord said. I shall not press the amendment to a Division at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Bail pending appeal]:
Lord Rodger of Earlsferrymoved Amendment No. 13:
Page 5, line 4, leave out lines 4 to 11 and insert:
(" "(1A) The High Court shall not admit a convicted person to bail under subsection (1) above unless—

(a) where he is the appellant and has not lodged a note of appeal in accordance with section 233(1) (a) of this Act, the application for bail states reasons why it should be granted and sets out the proposed grounds of appeal; or

(b) where the Lord Advocate is the appellant, the application for bail states reasons why it should be granted;

and, in either case, the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail.".").
The noble and learned Lord said: The amendment corrects a defect in Clause 5 which would have the effect of requiring an offender who applies for bail pending appeal to state the grounds of appeal even where the appeal is made by the Lord Advocate. The amendment corrects that defect by restricting the requirement to state grounds of appeal to applications for bail where the applicant is also the appellant. Clause 5 will continue to require the applicant for bail to state the reasons for his application, whether he is the appellant or the appeal is raised by the Lord Advocate. It is, essentially, a technical matter. I beg to move.
Lord Macaulay of Bragar: We now have before us another curious situation. I merely raise the question: why has such an amendment been tabled to the Bill when, according to the statements made on Second Reading, the legislation arose out of great consultation among all the interested people in Scotland? However, here we have another major amendment. Can the noble and learned Lord tell us what inspired it?
Lord Rodger of Earlsferry: The inspiration behind the amendment is that the way in which the legislation is drafted at present would produce a nonsense.
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Therefore, in order to remove the possibility of the statute book containing something which would plainly be incorrect, the amendment has been tabled.
Lord Macaulay of Bragar: Can the noble and learned Lord say why this Chamber has been presented with a Bill containing a "nonsense"?
Lord Rodger of Earlsferry: As the noble Lord knows, mistakes can occur in drafting. It is important that such matters should be resolved. Certainly, amendments tabled by Members of the Committee have indeed highlighted some drafting problems. I should have thought that one of the purposes of a Committee stage is precisely to identify such matters and to put them right, so that the legislation which goes forward to another place will be in a better condition than it was when it entered this Chamber.
5.15 p.m.
Lord McCluskey: Perhaps I may join in the debate. It seems that the noble Lord, Lord Macaulay, does not, perhaps, appreciate the tremendous pressures that parliamentary draftsmen are under when they prepare legislation, not least in circumstances where the Bill has to be presented at an early stage in a Session.
While I address the matter now before the Committee, perhaps I may also deal with Clause 5 so that I need not speak separately on the Question that the clause stand part. For the reasons that the noble and learned Lord the Lord Advocate gave, the amendment improves the provision. I accept that fact. But what does the clause then seek to do? It seeks to put into statutory form that which is already the practice of the court. I said that on Second Reading. There seemed to be some silent challenge to my remarks—namely, that there was a Practice Note. I have that note with me. It is dated 18th March 1994 and states:
"Although section 238(3) of the Criminal Procedure (Scotland) Act 1975 enables an appellant to apply for bail when he has lodged written intimation of his intention to appeal, an application for interim liberation in the case of an appeal against conviction can normally be considered only when the note of appeal containing grounds of appeal has been lodged".
That is the Practice Note of the Lord Justice General and it is the one that we follow. Let it be noted that those decisions are made by judges of the High Court in relation to such matters. I also said on Second Reading—and I need not go into it in great detail—that when Lord Wheatley gave the decision in Smith in 1982 he expressed himself in the same terms and said:
"Finally, I am regularly asked to grant interim liberation pending appeals. If the appeal is against sentence alone, no technical problem arises. If the appeal is against conviction the appellant has first of all to lodge a note of intention to appeal and later on a note of appeal which contains the grounds of appeal. An application for interim liberation can only be properly considered when the grounds of appeal have been lodged, and it is at that point that such an application should be made".
I apologise for misleading the Committee. It is possible that some of those applications are considered by other people and not just High Court judges. That was an error on my part.

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However, if that is the practice of the court and that is the decision which was intended to be followed even before the Practice Note made it the correct practice, the simple point is that the provision is entirely unnecessary. I would not object to one or two unnecessary provisions. Perhaps Ministers like to have them for one reason or another. It is not for me to speculate. But when we see that provision after provision on the question of bail is quite unnecessary and is simply enacting the current practice of the court, one has to ask: what are Ministers trying to do? They are filling the statute book with unnecessary provisions for no proper, sensible purpose.
Lord Rodger of Earlsferry: It is certainly not my desire to fill the statute book with a large number of unnecessary pieces of legislation; nor, indeed, would it be my desire to see matters dealt with by statute where they can, with due solemnity, be dealt with by means of a practice direction. But, as the noble and learned Lord knows, a problem arose earlier last year in connection with a case where, despite what was said in 1982 by the Lord Justice Clerk Lord Wheatley, bail was granted. Of course a practice note was then issued. However, the Government thought that it was desirable that the proper position—the position which actually applies in these cases, and with which therefore accused persons and their advisers have to comply—should be set out clearly on the face of the criminal statute which applies, and that in those circumstances it was desirable to introduce this provision. For that reason it seems to me that this clause cannot really be described as being, in the circumstances, unnecessary. It sets out, with what I should have thought was due solemnity, the particular provisions relating to an important matter; that is, the circumstances which have to be fulfilled before someone can appeal.
Lord McCluskey: May I ask the noble and learned Lord the Lord Advocate whether we are to understand from what he has said about this, and from what has been said about other such clauses, that the Ministers now in office and bringing forward this Bill are departing from what was recommended by the Renton Commission on the basis of the evidence placed before it and submissions made to it by the then Lord Justice General and the then Lord Justice Clerk, because they made it absolutely plain that it is wrong to enact in great detail to cover every possible situation? One simply makes unnecessary complications. Why is this necessary when one sees that the provision which is now put forward leaves to the Court a discretion but introduces the notion of discretion to be exercised in exceptional circumstances? That is just unnecessary complication and I do not see any point in it.
Lord Rodger of Earlsferry: I think the difference between the noble and learned Lord and myself rests on whether or not this is something which is necessary and desirable. I would say that it is desirable that the circumstances in which someone can appeal should be set out clearly on the face of the statute. Indeed the position as it is at present is slightly misleading because it does not appear on the statute, whereas the matter is clearly dealt with in the case of the summary position.
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However, the position in the solemn area is not clearly stated on the face of the statute. One has to recognise the fact that people could be misled. For that reason where other matters in relation to appeals are dealt with in the statute in a technical way it seems to us that the correct technical position should be set out on the face of the statute so that everyone—judges and everyone else—may be clear what the relevant provisions are. It is for that reason—not because we have departed from any other principle—that we think that this particular provision should be included in the Bill.
On Question, amendment agreed to.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
Lord McCluskey: Having spoken to this matter, I have nothing further to add except to say that the amendment which is being proposed under this clause is one which takes away a perfectly simple provision—a provision contained now in Section 238 of the 1975 Act which states:
"The High Court may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal".
That is a classic example of stating the general principle and letting the court regulate its own practice. I just do not see the need for what is being done. I have not been persuaded by anything the noble and learned Lord has said, but I do not propose to oppose this Question.
Clause 5, as amended, agreed to.
The Earl of Mar and Kelliemoved Amendment No. 14:
After Clause 5, insert the following new clause:
("Victim or complainer to be informed if accused is granted bail
The prosecutor shall be obliged to inform the victim or complainer if the accused is granted bail in terms of section 1 of the Bail etc. (Scotland) Act 1980.").
The noble Earl said: I rise to move Amendment No. 14 and to speak to Amendments Nos. 81; 82, 129 and 131. I should say that the inspiration for these amendments comes from myself and also from discussions with Victim Support Scotland and indeed from my one time employment with SACRO. Amendment No. 14 has the purpose of ensuring that victims of offending behaviour are kept informed of the whereabouts of the offender when he is on bail. At the present time the victim is kept in the dark about the decision of the court, unless the victim attends the court or makes diligent inquiry, or worse, meets the accused in the street.
Considering the reluctant part normally played by the victim, I think it is reasonable that efforts should be made to keep the victim in the picture. This is especially so at the pre-trial stage when it is easy for overt or subtle pressure to be exerted upon victims, victims' families and especially victims' witnesses. I believe that this amendment would enhance the court service sufficient to outweigh the additional work involved.

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Amendment No. 129 is designed to establish an additional and most worthwhile task for the court service. At present victims' households and victims' witnesses are being treated less well by the courts than is possible. Let me go back to first principles. There has been some form of criminal justice system in Scotland for as long as there have been inhabitants. In differing ways parties in dispute turned to a third party to arbitrate. A system evolved which enabled the victim to be able to report the offence to a public body which then relieved the victim of any need to seek personal revenge. Now we have a sophisticated and professional court service which aims to establish what the accused did or did not do and to deal with that offender in what is hoped to be the most useful and beneficial manner. The marginalisation of the victim manifests itself in a lack of information and lack of contact by the court service. What is needed is a system of liaison with the victim so that there is no doubt about what is happening next, whether the case will go to court, and, if so, when and what will happen.
When the victim is a witness there is a need for a good sympathetic briefing about what will happen and how it will happen. During and after the trial there should be an in-courthouse witness support scheme. I believe it would be worthwhile to put a victim liaison scheme into operation using both the professional staff and properly funded volunteers. Such a scheme would be voluntary in its uptake by victims but should be offered to all.
The purpose of Amendment No. 131 is to place a duty on the procurator fiscal's office to inform the complainer or victim of the progress of the case against the accused. For the victim, the offence committed against him or her, whether it is an assault upon the person or a family member or whether it be a violation of his home or personal space, is likely to have been sufficiently traumatic in itself. Then comes the post-incident investigation and the court process where the emphasis will be placed on securing the conviction of the accused. Attendance at court is one of the last ambitions of most people in Scotland. There is a general lack of knowledge of how the courts work. For victim witnesses in particular this strange process can be a very unnerving experience during which they must relive the incident. While there are few ways around the emotional difficulties of that, there is every reason to expect that such witnesses will be cared for by the court system.
With regard to Amendment No. 81, I believe it would be helpful if the court in general and the offender in particular were made aware of the effect of the offending behaviour on victims. The Committee will be aware that being a victim takes many different forms. While it is fairly obvious what the effects of personal assault can be, it is less clear what the results may be from, say, deception, violation of the home or theft of possessions. It is likely that the result will be an increased sense of insecurity, a reluctance to trust others, the victim wondering who did it and generally staying in the house rather than going out for leisure purposes. That latter point may well extend to all the other homes in the street.
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When it comes to offences which do not have personal victims, the effects are morale-sapping for the community. Seeing someone profit from illegal or immoral activity can drive down personal standards. Seeing public or corporate property being destroyed by vandalism leads to the comment "What's the point?" and creates an atmosphere of hopelessness for many people.
The provision of a statement about the effect of the offence would be an enhancement in at least two ways. First, the balance of concern for the victim would be addressed; and, secondly, the statement would constitute a useful start to the social work process as part of any order that the court may impose on the accused.
Finally, in relation to Amendment No. 82, I believe that it would be most beneficial if the making of a compensation order were to become the normal or mandatory practice for offences against the person and against personal property. The basis for that change would be the recognition that there are very few victims who are unaffected by the offence committed against them. The main thrust of this new sentencing priority would be to compensate the victim for the distress, hurt feeling, demoralisation and restriction which the offence has caused rather than to compensate for insurable loss.
There are certain circumstances where such a compensation order would be inappropriate. Here I have in mind a punch-up between established rivals. I am concentrating on the innocent victim rather than the loser among protagonists.
The overall effect of the amendment would be to institutionalise the balance of care for victims and to focus the offender's attention on why his or her offending behaviour is unacceptable and its consequences. I beg to move.
5.30 p.m.
Lord Carmichael of Kelvingrove: I step in where angels fear to tread to say that when I saw the amendments, particularly Amendment No. 14, I thought that this was the least that we could do for someone who was in such a position. I was thinking particularly of a woman who was alone with children in the house. I thought that it might be possible to obtain a court order to restrain the accused from approaching the house or the area.
The noble Earl, Lord Mar and Kellie, has elaborated on the proposal. However, it seems to me that a minimum could be done to give the victim an indication of where the accused was, whether he had been given bail and what restraints had been placed on him during the bail period. It must be obvious that, for example, a woman on her own with children must be terrified that a person who had assaulted her might be free to roam about without her knowing what had happened at the court.

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I believe that, at least as a commonsense approach, the Government should consider the amendment or perhaps come up with a simpler series of amendments to meet most of the points made by the noble Earl.
Lord Windlesham: In supporting the amendments—from south of the Border—I declare an interest because I am the president of Victim Support.
A great deal has been done recently to enhance the position of the victim in criminal proceedings, but there is ample room for further progress. After several years Victim Support has been successful in persuading the Home Office in England and Wales to agree to the systematic provision in each Crown Court centre of a professionally trained person, supported by volunteers, to assist victims and witnesses and, in fatal cases, the relatives of victims in the courts.
That began as a voluntary initiative, initially funded by a charitable foundation. After lengthy negotiation over a period of years the Home Office agreed to fund the programme. Recently the Home Secretary announced that he would extend it to all 80 Crown Court centres. Therefore, in about 20 or 30 Crown Court centres Victim Support is now running a full-time provision of the type envisaged in Amendment No. 129 moved by the noble Earl, Lord Mar and Kellie.
I should like to ask the Minister of State what has been done in Scotland.
Lord McCluskey: It will be appreciated that the amendments cannot sensibly all be discussed at the same time. In my opinion—and of course Members of the Committee will form their own view—the amendment with which we are now dealing is quite different in character from the amendments which relate to the treatment of victims at a later stage in the proceedings when they have been identified as victims. Those raise entirely different points and must be dealt with separately.
Amendment No. 14 deals with a situation which arises when an accused person is given bail. The amendment requires the prosecutor to inform the victim or complainer if the accused is granted bail. The point that I made earlier that at that stage one cannot conclude that there is necessarily a victim obtains here. The noble Earl said that if an offence had been committed there must be a victim, but at that stage we do not even know whether an offence has been committed. The first object in a criminal trial is to show that an offence has been committed and then to bring home criminal responsibility to the person in the dock. It is only logical that at that stage one cannot properly talk in legal terms about a victim, although I understand that people who have been the subject of an attack of whatever kind will not engage in such niceties. However, we must do so when dealing with questions of bail. Therefore, we cannot assume at that stage that a person is a victim.
We have to recognise that it would be massively expensive and an administrative nightmare to try to intimate to every person who is a complainer whether bail has been granted. In Scotland we are already conscious that the fiscal service is massively
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overworked and has far too much to do. If it had to do this as well that would create enormous additional problems.
There is a further point. At the stage when bail is sought, if there is reason to suppose that the person who seeks bail may approach the person who is claiming to be injured, the fiscal can properly ask for a condition to be attached to the bail order preventing such an approach. The court will commonly grant that; it will not commonly be opposed.
Therefore, I suggest that Amendment No. 14 is not sound. I shall address the other matters in due course when we reach them.
Viscount Colville of Culross: Perhaps I may add a word from the English point of view following what the noble Lord, Lord Windlesham, said. English practice is exactly as the noble and learned Lord, Lord McCluskey, described. If a bail application is made and it is thought that there is a possibility of the accused person approaching any witness—because at that time the victim is only a witness—it can be a condition of bail either that the accused does not contact that witness or, sometimes, does not go within a certain area where the accused might run into that witness.
That condition is then enforced by the police because it would be a breach of bail and consequently an arrestable matter if the person either approaches the victim or goes into that area. Not infrequently such matters come before the Crown Court as the result of an arrest, or a Bench warrant is issued because there is some evidence that the person is breaching the bail condition or is likely to do so. I suggest that it is much better to leave the matter to the judiciary to handle in that way through the police force rather than to impose what would be a difficult administrative, and, I agree with the noble and learned Lord, an expensive burden on someone.
Lord Fraser of Carmyllie: I regret it if the grouping has caused some difficulty. I had some understanding that the grouping had been agreed. Possibly the noble and learned Lord was not aware of that agreement. That being so, it is always open to any noble Lord to deal with a matter when we come to it. Accordingly, in those circumstances, I propose to seek to deal only with those matters spoken to by the noble Earl in moving Amendment No. 14.
The amendment obliges the prosecutor to inform the victim of the granting of bail. I listened with great interest to what the noble and learned Lord said about the conditions that might be attached which would seem to parallel the way in which matters are handled south of the Border. However, this is not just a matter of imposing a condition to keep an accused person away from one against whom it is alleged he committed an offence. It is to oblige the prosecutor to inform the victim of the granting of bail. Perhaps I may say to my noble friend Lord Windlesham that we accept that victims who wish to be informed should be given information about the progress of the case. That might include the circumstances in which bail was granted. However, we object to the straitjacket that the provision

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imposes. While we consider it desirable that such information should be given if it is wanted, there is within the provision no opportunity for flexibility.
I say to the noble Lord, if he is not already aware, that all Scottish police forces have a policy of providing information to victims. The force guidelines generally give individual officers a discretion as to the level of information to be provided to the victim. Officers make their own assessment of the victim's vulnerability and the severity of the offence. However, the noble Lord may not be aware that the Crown Office has commissioned research into information needs of victims. I can advise the Committee that the results of that research will be available shortly. Preliminary indications are that research has found that a significant number of victims are already given information on bail hearing. I am sure that that will be welcomed.
More generally, the Crown Office is actively considering how best to achieve better communication with victims on all aspects of the criminal process.
The noble and learned Lord, Lord McCluskey, may wish to return to victim impact statements at a later stage. However, the noble Earl made some reference to them, and they are contained within his amendment. I fully accept the principle that the effect of an offence on the victim or victims is a relevant and important consideration in sentencing. It is an important means of determining the gravity of the offence and thus an important means of determining the appropriate sentence. That is why procedures already exist to bring the relevant information to the attention of the court. I should have thought that in most cases where such information is properly to be brought before the courts, in Scotland the procurator fiscal or the advocate depute will have that information available, given our system—not least of precognoscing witnesses; and almost invariably the victim will be one of those who has been precognosced. However, I may have to discuss later whether it is desirable to provide an impact statement in quite the form the noble and learned Lord, Lord McCluskey, suggested.
I hope that Members of the Committee will forgive me for one moment. I seek to extract what I wish to say from those issues on which I thought that the noble and learned Lord, Lord McCluskey, intended to speak.
I believe that the next amendment which was spoken to related to confiscation.
Lord Harris of Greenwich: Perhaps I may be of some help to the noble and learned Lord. We have got ourselves into a slightly confused position. It is no responsibility of the noble and learned Lord. It seems to me that it is better if we deal with Amendment No. 14 first, and the other matters separately. Otherwise we shall get into an intolerably confused series of debates.
Lord Fraser of Carmyllie: I am grateful to the noble Lord for that suggestion. The noble and learned Lord,
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Lord McCluskey, and the noble Earl had separate amendments dealing with impact statements. Perhaps we may deal with those in a different context.
Lord McCluskey: Perhaps I may add a word of explanation. Unfortunately, because of my absence, I was entirely unaware of the grouping. Had I been consulted, I should certainly have suggested the removal of Amendment No. 14. from the grouping. I believe that the suggestion of the noble Lord, Lord Harris, is one which has the approval of the Committee.
Lord Windlesham: I do not dissent from that. However, before we leave the issue, perhaps I may repeat the question in case the Minister of State requires notice. It will give him time to consider it before reaching Clause 48. I should like an answer to the question as to whether there are plans in Scotland to provide full time staff to support the victim during court proceedings. That is referred to in paragraph (c) of Amendment No. 129. Is that happening now? If so, in which criminal courts? If it is not, what is planned for the future? I look forward to the answer to those questions at the appropriate time.
The Earl of Mar and Kellie: The grouping seems to have been too wide. Therefore, I beg leave to withdraw Amendment No. 14.
Amendment, by leave, withdrawn.
5.45 p.m.
Clause 6 [Lists of potential jurors]:
Lord Macaulay of Bragarmoved Amendment No. 15:
Page 5, line 16, leave out ("for") and insert ("after").
The noble Lord said: The amendment relates to Clause 6 of the Bill. It is designed to ensure that not only a juror's address but also his occupation is disclosed in the list of potential jurors.
The purpose underlying the amendment is that the occupation of prospective jurors should be included in the list of assize people. That gives a useful guide to the defence to ascertain which jurors to challenge or indeed not to challenge. For example, as the Law Society of Scotland has pointed out, it may or may not be inappropriate for a social worker to serve on a jury in a child abuse case; or for a chartered accountant to serve on a fraud case on which he might impose his own views on the facts and indeed his own experience.
Jurors are told that they should be masters of fact. That does not imply that they should be expert witnesses. For that reason it is helpful to know the occupation of jurors in order to ascertain whether the distinction between being a juror and an expert is blurred. I am sure that both noble and learned Lords opposite know that it is sometimes counter-productive to challenge a juror because jurors become suspicious that the defence may be up to something if it opposes a person being called for no apparent reason. I know that the practice in the courts has been improved. I believe that all prospective jurors are now given an address by the clerk of the court, outwith the presence of the accused or anyone else, to say, "You've been called for jury service. If your name is called out and someone

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objects to you being called, don't worry about it, it's nothing against you personally". The jury is given that address and I sometimes wonder whether it is helpful or counterproductive.
If we do not leave the right to challenge three jurors, I hesitate to mention it but we may be in the O.J. Simpson scenario—to use a cliché from television. The accused may have to be served formally with a list of the potential jurors, say, 14 days before the trial. At the moment, in practice, as the Committee knows, in the High Court in Scotland or the sheriff court in the sheriff and jury proceedings, one is handed a list of potential jurors. The clerk of court will read out, "Numbers 51 to 95 today" and one is presented with the list. It may include Joe Bloggs, blacksmith, Jimmy Smith, bus driver and perhaps someone unemployed. One goes through the list and tries to assess whether those people might have a valuable input into the case.
However, if the occupation of the juror is hidden from the accused and his representatives we may be faced with a situation where there is a demand for the list of jurors to be given to the accused and his representatives early on so that they may make investigations as to who are on the list. That could be socially damaging and might have on-costs to the legal aid system. You may come to the court with a list of jurors and no one knows who is who, so you may ask for the court to be adjourned because you have just been handed the list of jurors—Joe Bloggs, Jimmy Smith and so on—and you want to find out who they are and what their prejudices might be, depending on the type of case. You may be adding to the costs of the legal aid system. I do not say that legal aid will be granted—and judging by the pronouncements of the noble and learned Lord the Lord Chancellor today in relation to England it is highly unlikely that it will be—but I raise the question also in the European context because people are entitled to know who is sitting in judgment of them and what is their occupation.
I am not quite sure of the objective behind the removal of the occupation. What social or legal function does it serve? For example, if you are sitting in a case of a robbery and you see: "J. Smith, security officer", you can bet your last dollar that "security officer" means retired policeman. Ergo, you say, "Objection". No questions are asked, you just say: "No, I don't want you on the jury". The chap does not take offence because he has been told about it and if he is a former policeman he would probably know why there is an objection to him anyway.
If it is a journalist, he has read all the background to the case. Let us take the current proceedings in the south and assume that the West trial—if it ever gets on—is taken in Scotland. There may be a journalist from—I shall not name any newspaper, there may be some interest in it—a tabloid who had covered all the background to the case, heard all the rumours, the gossip and innuendo. The defence has no notice of that person's involvement and if he does not disclose it and say to the clerk of court, "Look, I know all about this case, I have my own preconceived views as to the guilt or innocence of the person in the dock", then there could be real problems.
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To erode the right of the challenge to a juror may create more problems than it removes. I have heard of no juror who has taken exception to being refused jury service; in fact, most people I know are delighted when there is an objection because they do not wish to serve on a jury. I am sure that we all know from our practice in court that serving on a jury can be a terrifying and responsible experience. In my submission, this is an unnecessary deletion from the rights of the accused, as are some of the other provisions in the Bill to which we will come in due course. Accordingly, I beg to move Amendment No. 15.
Lord Fraser of Carmyllie: The purpose of Clause 6 is to improve the selection of juries so that they are more representative of the population as a whole. As I think the noble Lord will readily admit, it is common practice for defence agents or counsel to object to potential jurors simply on the basis of their occupation. We do not believe that an occupation per se should be sufficient justification for an objection. It may result in those in certain occupations being deprived altogether of their opportunity to serve on juries.
The first of the two amendments would alter Clause 6 to reinstate the requirement to indicate a juror's occupation on the list of potential jurors. In my view, there is no practical requirement for a juror's occupation to be published on that list and I accordingly urge the Committee not to accept the amendments.
There are six other amendments in the group, but I understand that they are essentially consequential on the earlier ones.
To some extent I accept that if Clause 8 is to be part of the Bill and if the right of peremptory challenge is to be removed, the issue of occupation may not be as acute as I believe it to be at present. Nevertheless, I see no practical reason for having an occupation published on the list. Accordingly, I invite the Committee to resist the amendments.
Lord Macaulay of Bragar: I am grateful to the Minister for what I hesitate to call an explanation, if I may say so with the greatest respect. What is the reason for this legislation? It exists in England and Wales, I understand, and I am not sure what effect it has had. If I am being tried, why should I not know whether the person sitting on the jury is a former policeman? Why should I not know, if I am charged with a white-collar or blue-collar crime, whether the person who will try me is an accountant who would bring his expertise to deliberations in the jury room?
I do not know why this proposal is made, except to be a mirror image of what is happening in England. If I am wrong about what is happening there then, of course, I apologise, but it is a dangerous situation. Can the Minister or the noble and learned Lord the Lord Advocate give an undertaking in regard to informing the representatives of the accused in serious cases in Scotland in the solemn procedure before a jury in the sheriff court or the High Court? They need not necessarily give that undertaking today because I have only just raised the point.

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Will either of the noble and learned Lords the Lord Advocate or Lord Fraser of Carmyllie write to me with an undertaking or explanation as to what will happen once the designation of jurors is removed? Will the defence solicitors or the accused be given an early list of the people who have been cited to attend the court? If not, then what is the position in the long term where people may become involved in a jury trial who have knowledge or insight into the case? That may be particularly important in drugs cases. The defence may find out about it after the trial is over. Someone may say: "I will tell you who was on that jury—Joe Smith, who was a pal of so-and-so who did this and that". That may sound unlikely but that is the way it happens.
There is then an appeal and the defence will tell the Appeal Court, "We didn't know who the jurors were, the Crown would not tell us. We were presented with the list on the morning of the trial and didn't have time to investigate it". As counsel for the defence I may stand up and say to the judge, "Wait a minute, I have just been given this list of people supposed to be the peers of my accused. I want to know more about them. Would you kindly adjourn the trial?" You can imagine what would be the response from the court. I am sure that the noble and learned Lord, Lord McCluskey, might give an indication. We are entering very dangerous waters at the moment. I should like to have an undertaking from the Minister that the list of assize which will be served on the accused if this particular clause goes through will be served perhaps 14 days before the date of the trial.
One other consequence is that people who are simply going about their business who have their name on the list of jurors may very well be harassed, spoken to, and so on, which does not happen at the moment. I have never known a case—perhaps the noble and learned Lord will tell us whether he knows of one—which has had to be adjourned to consider the status of a juror. I can see the far-reaching effects of this particular provision. All sorts of legal points could be taken, perhaps even hampering the course of justice. I beg to move.
6 p.m.
Lord Fraser of Carmyllie: I do not know whether there is any proposal—nor would we have one—to give a list of the assize at an earlier date. I have to say to the noble Lord that he is making a mountain out of a molehill. The law of England has existed for many centuries. Jury trials have been held here for a very long time. The occupation of prospective jurors has never been shown.
Lord Macaulay of Bragar: With respect, I am not interested in that statement. I asked the question and have received an answer, but it is of no relevance.
Lord Fraser of Carmyllie: The noble Lord says that he is not interested in the reply. He asked a specific question and it is very unfortunate that he got the wrong answer, but that is nevertheless the state of play in England.
Lord Macaulay of Bragar: I take the point. I may have scored an own goal on this occasion, but that is
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another matter. The law of Scotland has also existed for a long time. We do not need any lessons from the law of England and Wales if there is any distinction between these two. In the meantime, I—
Baroness Carnegy of Lour: Before the noble Lord withdraws his amendment, if that is what he intends to do, perhaps I may ask him this. We have heard that this has been the case in the law of England for a very long time. We have had the description of the occupation in Scotland. If in effect it means that people are being challenged because they have the wrong occupation, is it not the case that we are then doing less well in England? I am new to this subject, but it seems to me that the noble Lord's argument is rather unreasonable. If it is a handicap to people to have certain occupations because other people will challenge them and they will not get to be on juries, is that not a bad thing?
Lord Macaulay of Bragar: It may be a case of negative discrimination because of a particular job. I accept that. But certainly those of us who have practised in the courts in the past know that it is required to have the designation on the list of jurors. I am not sure how much investigation is done in England when the English counsel or solicitors are given a list of potential jurors. That may be a matter that we can investigate between now and Report stage.
There are always apparently good reasons for objecting to particular people in particular cases. It is down to the judgment of the people involved. They decide whether or not a person in a particular occupation should serve on the jury. I really cannot see where this particular amendment is leading the criminal process in Scotland or what benefit it will have. However, I have heard what the Minister has to say. What he said about not giving notice to the defence will no doubt be noted in other quarters, and we shall return to the matter at Report stage. In the meantime—
Lord McCluskey: Before the noble Lord withdraws his amendment: I shall speak on matters to do with juries in connection with Clause 8 rather than this particular matter. But I ask Members of the Committee to bear in mind that the lessons to be learnt by England from Scotland or by Scotland from England may be many, but in the field of juries in criminal trials they are virtually none. The reason is that although both countries have jury systems, the English had a jury of 12 and required a unanimous verdict. The Scots have always had a jury of 15 and required a simple majority verdict. The English now have a qualified majority verdict of 10:2. These differences are so fundamental that one should not make easy comparisons across the Border. There are very few lessons to be learnt in this field by either side from the other. We must live with our own traditions and modify them in the light of modern requirements.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Clause 6 agreed to.
Clause 7 [Jury service]:
Lord Macaulay of Bragarmoved Amendment No. 17:
Page 6, line 3, leave out paragraph (a).
The noble Lord said: We have discussed more than once in the course of the proceedings so far the question of a presumption of innocence. There is a view that the mere fact that a person has been charged with an offence and permitted bail subject to the constrictions which the Minister intends to impose in the light of the previous section in the Act should deprive him of his civil rights in the community. Again, it may very well be that there is a European context to this and that he may be being deprived of his rights as a citizen. The amendment represents a short proposition which may or may not appeal to the Minister. I beg to move.
Lord Fraser of Carmyllie: Clause 7(2) (a) of the Bill adds to the categories of persons disqualified from jury service those on bail in connection with criminal proceedings anywhere in the United Kingdom. I make this point with some hesitation in view of the last intervention of the noble and learned Lord, Lord McCluskey. Our proposal is based on a recommendation made by the Royal Commission on Criminal Justice in England and Wales. However, we have decided to include this in the Bill not simply on that basis. Before this Bill, in our paper on juries and verdicts, we included it as a proposal. Following on the consultation and the views that we received on it in Scotland, we decided that it should be included in the Bill.
I agree with the noble Lord, Lord Macaulay, that a person on bail has, and should continue to have, the benefit of the presumption of innocence. However, the justification for disqualification is not that those on bail might have committed an offence. Rather it is that they have been accused of committing an offence and are still subject to criminal proceedings, and that that might improperly affect their attitude to the proceedings in which they would be contributing to the verdict.
It does not seem right in the interests of justice that such people should be asked to serve as members of the jury. With that short explanation to the noble Lord as to how we arrived at this particular proposal, I hope that he will feel able to withdraw his amendment.
Lord McCluskey: I entirely support the noble and learned Lord the Minister in this particular regard, and indeed for the reasons that he and the Royal Commission have given. I was a prosecutor for a number of years, from 1964 to 1971, in the High Court. The way it worked in those days was that if the police knew that a person was on bail, or whatever, the police would come to the advocate depute, and the advocate depute, exercising the right which the Government are about to take away, would then simply intimate to the court that he objected without cause shown to the person. The person who was thus on bail did not serve. That seemed to be an eminently sensible way to go about the matter. I entirely support this provision because it is quite wrong that a person who is himself facing criminal proceedings should be asked to adjudicate judicially upon somebody else's guilt or innocence.
Lord Macaulay of Bragar: I find that a strange proposition. It almost amounts to a form of secret justice
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when people are put on a jury list and some police officer, prejudiced for or against the accused, comes to the prosecutor, or indeed to the defence, and says, "By the way, do you know that he is up on a charge of (whatever it might be)? Would you mind objecting to him?". If we are getting to that point, it is a very dangerous state of affairs. But I am not sure whether that was what the noble and learned Lord was suggesting.
Lord McCluskey: I am suggesting that on the jury there may be people whose minds are so affected by some event that they are not able to act judicially. It is exactly on a par with another case in which I, as a judge, felt able to excuse a serving juror when it emerged, during the course of the case—it was a murder trial—that her mother had been murdered. That person could not bear to look at the photographs or bear to think about the matter. Of course, she should have intimated that at an earlier stage, but she did not. Once into the trial, when she realised it, she did so. That person was unfit to continue as a juror because personal circumstances affected his or her capacity to act judicially. The same must apply to a person who is out on bail. It is not a question of secret vetting by the police; it is a question of fitness to act as a juror.
Lord Macaulay of Bragar: Perhaps we can discuss that point at greater length on another occasion. Does it mean that if I have an argument with my wife in the morning before I leave home, having been called as a juror, I can go to the judge and say, "By the way, I have had a pretty bad morning—it started off badly and can only get worse—and so I cannot apply myself to this case. Would you please excuse me?"? That seems an extraordinary proposition. But perhaps we will come back to it at some other time. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
6.15 p.m.
Clause 8 [Challenges to jurors]:
Lord Macaulay of Bragarmoved Amendment No. 18:
Page 6, leave out line 17.
The noble Lord said: This is an amendment in relation to the peremptory challenge of jurors. Basically, the amendment refers to what we have already discussed; namely, that the peremptory challenge should not be abolished. My information is that the Thomson Report held that the peremptory challenge should be continued unless good reason were given for this particular part of the Bill by the Government. The Government have to look at the matter very carefully to consider whether it is in the interest of justice. I beg to move.
Lord McCluskey: It will be observed from the Marshalled List that I gave notice of my intention to oppose the Question that Clause 8 stand part of the Bill. But Amendments Nos. 17 and 18 run together and I shall therefore address the whole matter in dealing with Amendment No. 17.

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First, let me remind the Committee that at Second Reading I made some observations about this matter (Official Report, 29/11/94; col. 566). The position is that prior to 1980 there were five peremptory challenges; in other words, either party—although it was almost invariably the defence—could exercise the right, without cause shown, to say "I object". The juror would not then proceed to enter the witness box. Administratively, the position is different from that in England. What happened was that the clerk of the court would pull a number out of a box—say, number 123—and everyone knew who it was. Then he would call, "Mrs. Elizabeth Jones". At that stage the defence counsel would say, "Object", and the clerk would simply say, "Mrs. Jones, please remain in your seat". So it was done and always is done with reasonable dignity and the least offence to people.
There were five peremptory challenges. One will find the history of the matter narrated in the Thomson Report (Command paper 6218 of October 1975, paragraph 51.28). The Thomson Committee recommended reduction of the jury in Scotland from 15 to 12. That recommendation has never been acted upon. In that context the committee suggested the reduction of the peremptory challenges from five to two. So, logically, for 15 jurors it follows that it would recommend three peremptory challenges.
That matter was dealt with by that very distinguished committee. I gave an indication of its membership when I spoke at Second Reading. Therefore I need not repeat it. Let me refer to paragraph 51.30, which is what the committee found:
"The overwhelming view of our witnesses who submitted evidence on this issue was in favour of the retention of the peremptory challenge although some suggested that the number of challenges should be reduced".
At paragraph 51.31 it said:
"We agree that peremptory challenge is difficult to justify in principle but we think that it should be retained in order to restrict as far as possible the use of the challenge on cause shown".
So the recommendations were made on that basis.
In 1980 the Government came forward with a Bill and a proposal to reduce the number of peremptory challenges from five to one. At that time in this Chamber
I asked that the number should not be five but three. The Government rejected that proposal. Then, in another place, the Government accepted that proposal. Accordingly, the 1980 Act confirmed that the number of peremptory challenges was to be three.
I do not want to quote at great length from what was said in the Committee in the other place but the Minister, Mr. Rifkind, said that Mr. Ewing—now the noble Lord, Lord Ewing—had asked the Government to have a rethink. He said:
"The Government have done so. The Government's original proposal was that there should be only one peremptory challenge. An amendment was tabled … which proposed three challenges … Three challenges is a balanced compromise between those who hold different points of view. It would be unwise to disturb that compromise now".—[Official Report, Commons, 23/7/80; cols. 628-629.]
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Therefore, in 1980 the Government's view was that the number should be three. The noble Earl, Lord Mansfield, who was the Minister responsible, accepted that in this Chamber at a later stage.
To echo what has already been said in an earlier debate, there are good reasons for objecting to jurors. The noble Lord, Lord Macaulay, referred to some of them. Even the address discloses the risk that the juror may have heard some of the gossip. He may live in the neighbourhood. One wants to know that. He may have lived in the same area as a previous, notorious case, possibly of the same kind in public imagination, involving the same wrongdoer. The name of the juror, particularly in parts of Scotland, may suggest ethnic, religious or even football associations that might lead to prejudice. I do not make any light-hearted remark about this risk. I know cases in which, if one is acting for the defence, it is extremely important to avoid having people of a different religious persuasion involved in the case. In my experience there have been many cases in which counsel have come to a sensible view that there are too many jurors of one sex on the jury or too many jurors of a certain age on the jury.
I see no reason to abolish the peremptory challenge which now exists. There is in circulation an apocryphal story about jurors in England carrying a copy of the Financial Times under their arm and wearing a tie and thus being objected to. I should like to know whether that ever happened or whether it is just a story invented for some particular purpose.
I am concerned about this matter. I shall be told that the practice in England tells me otherwise, but for good reasons I do not believe that the practice in England is very relevant. I believe that what will happen is that, if the defence wants to object to a person because that person's name is Riley or because that person lives in Govan or if counsel and agents want to object because that person is of a particular sex or age or for some such reason, but there is not cause shown, the objection will nonetheless be taken and a good deal of time will be wasted.
I cannot see any point in that. If the defence indicates that it is going to object, then, in order to save time and to have the case proceed, the Crown will tend to agree. Under the new provision the court then has no option and the juror will be stood down. It is silly to move in that direction—away from a compromise which followed the recommendation of an extremely experienced committee.
I know of no evidence of abuse of the system as it currently exists. In all seriousness, I say—I have said it before and repeat it—that I have more experience of appearing in the High Court in Scotland than any other serving judge or participating advocate with the possible exception of one or two who are now full-time lawyers acting for the defence. I have sat for 10 years in the criminal courts. I was a prosecutor and solicitor-general for 12 years. I acted for the defence over the rest of my career. I have no evidence whatever of abuse of the right of peremptory challenge. If the Minister knows of abuse of that right, I hope that he will tell us about it.

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I know that if we give a right of peremptory challenge, such as exists in the 1980 legislation, more jurors will need to be brought to court—not many, but a few. That is not in itself a bad thing. It is important that members of the public should come into court from time to time and see what the court does, even if their involvement is the modest one of attending for the purpose of balloting a jury and then being told their services are no longer required. I do not believe that most people would regard that as an improper waste of their time. For those reasons, I intend to oppose the Question that Clause 8 shall stand part of the Bill, but I support Amendment No. 18.
Lord Rodger of Earlsferry: The issue is an important one, as the speeches of Members of the Committee made clear. I start from the basic principle which I am sure most Members accept. The basis of jury selection in Scotland, as in England and Wales, is one of random selection. We are dealing with a principle that people who will form a jury and judge somebody should be selected randomly and in that way one obtains a fair system.
That is subject to one important point, to which the noble and learned Lord, Lord McCluskey, alluded—that is, that there can be good reasons why specific individuals should not serve on a jury. I do not need to debate whether all the examples he gave would be examples of good reason. I accept that there may be cases where it would be wholly inappropriate for a specific person to sit on a jury. For example, if the person happened to come from the house next door to where the victim was killed, that would be a very good reason not to have that person serving on the jury.
In that situation the Bill allows that matter to be aired, either by way of objection on "cause shown", or indeed where the matter is so patently obvious that the prosecution accepts the position in terms of the provision to which the noble and learned Lord, Lord McCluskey, referred—that is, subsection (3) (a).
There is no doubt that the provision allows for the position to be properly regulated where reasoned objection can be made. At present the situation exists where the defence—it is usually the defence—uses objections to remove people from jury service often for no obvious reason. For example, it may be because the person is a teacher. One has seen that happen on many occasions. There are all sorts of reasons why teachers may or may not make desirable members of a jury. But for that to be done on a regular basis, as the noble and learned Lord, Lord McCluskey, accepts happens, is wrong in principle. It is wrong that people who have chosen a specific occupation, or who happen to live in a district of the town when it is not associated with the crime, or who happen to have some other characteristic which the defence thinks makes them an unsuitable or perhaps disadvantageous jury member, should be removed from the jury automatically by the use of such objection. In that situation one is running the risk of skewing the selection of jurors in a way which is irrational, as the Thomson Committee said, and difficult to defend in principle.
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I ask the Committee what its reaction would be if the Crown were to use its right of objection in that entirely random way. People would immediately object that the Crown were trying to take a view of who should sit on a jury, which is wholly unacceptable. Except where proper cause can be shown, the basic rule should be that people who are selected on a random basis should serve; where a proper reason for them not serving can be shown, then that matter can be dealt with by the courts.
The noble and learned Lord, Lord McCluskey, counselled against looking rashly at the experience in England and Wales. Nonetheless, what has changed in the years since 1980 is that we can look at the experience of England and Wales. I accept that the mechanics and so forth are slightly different. But the basic position has been that, despite forebodings as to the difficulties which would be caused when the peremptory challenges were removed, in practice the system works perfectly well. In fact, as I understand it, there are few occasions where time-consuming objections are taken to jurors.
This provision therefore rests on a good basic principle; that is, that the basic test should be random selection subject to reasoned objections in appropriate cases. That is the correct principle. Experience in England and Wales shows that that can work. The objections today are misconceived. I therefore ask the Committee to reject the amendment and in due course to provide that the clause should stand part of the Bill.
The Earl of Balfour: Before my noble and learned friend the Lord Advocate sits down, he spoke of "random selection". Perhaps I can give an example, though not necessarily a good one.
Unfortunately, farming has a high record of industrial accidents. I feel that I could end up in court on an offence under Health and Safety Executive provisions, which may go to trial. As a person involved—forgive me quoting an industry in which I happen to be involved—I would not be too happy for a farm worker on a similar farm acting as a member of the jury in my case. That may or may not happen.
Is there anything in the words used by my noble and learned friend, or has the procurator fiscal or some other individual any powers in his original selection of 15 or 20 persons, to weed out those who, in his opinion, may be influential in a specific case that is coming to trial? Unfortunately, I do not know enough about the law; but that is my question.
6.30 p.m.
Lord Rodger of Earlsferry: The simple answer to the question posed by my noble friend is that it would not be possible for the procurator fiscal or anyone else to weed out people in the way in which he suggests. Unfortunately, the position is that it is unlikely that my noble friend would be the only person whose trial would be down for hearing at a particular sitting. There would be a whole lot of cases. People would be summoned as potential jurors in a whole range of cases. The kind of approach which my noble friend suggests would not be possible.

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Furthermore, my noble friend has put forward a case where he conceives that having a farm worker serving on the jury might be objectionable for the reason which he stated. I can see that that might be so, but that is exactly the kind of case where one could point to a legitimate possible ground for objection to that person serving as a juror. That could be brought forward; and if the court thought it was appropriate in the circumstances, the juror would be removed from the jury.
The Earl of Balfour: I am sorry to rise again but I thought that we were no longer going to require jurors to declare their employment. Am I correct?
Lord Rodger of Earlsferry: That is indeed so. But it might come out. In the particular circumstances one might know the employment from the address or it might otherwise be known. I am assuming that for some reason the occupation is known. The point of principle is that where it is known, and there is an objection which can be legitimately taken, even after the Bill goes through, that is provided for. I do not think that I need to go any further on the matter.
Lord McCluskey: For me, the Lord Advocate needs to go a good deal further. I have already said—and he has not responded to my point —that the Thomson Committee was the most distinguished committee on criminal procedure in Scotland this century. It heard evidence from every legal body and all kinds of bodies, including policemen. The vast majority recommended retention of this right. The Thomson Committee recommended retention of it. The Government keep coming forward and saying no; and they do not explain why. They have to explain why.
There is another point. In a recent case it was obvious to me, although it so happened that the defence were not in the least interested in the composition of a jury and were paying no attention to who went into the jury box, that one of the persons who was shambling forward was half-witted. No one looked at him. I have no right of objection or I would have said "Don't let that person sit". This person shambled forward and took his place. No one objected. On the next day he did not turn up. He did not turn up because he had no money. He had walked six or seven miles home. He then set off walking the following morning and did not know where the court was. Supposing I had had a power to object, or I had been counsel and had looked around and seen this person coming up, I would have said, "I must get him off the jury. I do not want that person sitting in judgment on my client". What cause would I show under Section 130(4)? "My Lord, I object to this person on the ground that he looks a right dimwit". I cannot do that. One should give the right of peremptory challenge to cover all these situations.
I will not accept from the Lord Advocate that I know perfectly well that the defence use objections for no obvious reasons. The reasons may not be obvious to the Lord Advocate, who I think had a very modest defence practice in his day, but the defence do not have to stand up and give reasons. That is the whole point. They made
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a peremptory challenge and the fact that a fiscal does not understand or the Lord Advocate does not understand why the objection was made does not mean to say that there was not a good reason. They do not do it for fun. I do not know whether they object to teachers. In my time I objected to many teachers as jurors when I practised in the civil courts because it was always thought in the 1940s, 1950s and 1960s, when there were quite a number of these cases, that teachers would somehow dominate the jury room. That was the belief at that time. We did not want anyone dominating the jury room so all teachers were removed from juries. I do not think that was true in criminal cases. It was certainly not my experience. No justification is being given for departing from the recommendation of the Thomson Committee for the practice that has obtained in Scotland for centuries.
The Lord Advocate makes the point of principle that the selection of jurors is random. It is not. First, jurors may be removed on cause shown. Secondly, they may be removed under Section 133:
"The court shall have power to excuse any juror from serving on any trial, the grounds of such excuse being stated in open court".
So they may be removed on cause shown, they may be excused, or they may be taken away for reasons specified in Section 134. There are all kinds of reasons for getting jurors out. Selection is never 100 per cent. random.
Furthermore, on the point of bringing numbers to court, because there exists the possibility of objection on the ground of cause shown, on the ground of excuse to be stated in open court, or on the ground of unfitness by reason of this, that or the next thing, it follows that one has to bring more jurors than one actually needs. That covers the point of peremptory challenge. For all those reasons I urge the Government to do what they did in 1980 and think again. It is arrogant of the Government to come forward with this proposal on these inadequate grounds, given the whole background to this matter.
Baroness Carnegy of Lour: I am still not absolutely clear what the noble and learned Lord is saying. He quoted the example of a person who was clearly a dimwit and said that he could not do anything about it. However, as I read the Notes on Clauses, if the prosecution and the defence agree that the person is clearly a dimwit, he will not be a juror. It is obvious that that is covered. What we are talking about is the motivation of people to get rid of potential jurors on various grounds which may well be trivial. When it is obvious, is it not covered? I have not read the Thomson Report—I am sure it is a brilliant document—but this is a simple point on which we need to be clear.
Lord McCluskey: The judgment that one makes in the course of the few seconds that it may take a person to walk from the back of the court to the front of the court may not be one that is shared on all sides of the Bar. The defence might think that they cannot have that person because he looks as if he is not up to it. The Crown might say otherwise. I have known that to happen. If one gets agreement, that is fine. But if there is no agreement, what then? There is nothing wrong

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with the right of peremptory challenge. It may be difficult to justify in principle. I know precisely who wrote those words into the report. It was a person with a considerable degree of logic in his mind. But the simple fact of the matter is that it does no harm and I know of no reason to suppose that it is abused. I wish someone would give me an example of real abuse. I have never known one.
Lord Stewartby: I am sure that my noble and learned friend the Lord Advocate does not need any support from me but perhaps I may offer it nonetheless. I came in to listen to the debate because I was particularly concerned to hear the arguments which the noble and learned Lord, Lord McCluskey, would put forward. I defer to his great experience and knowledge but there is a non-lawyer's view about this which ought to be briefly stated.
Whether or not peremptory challenge is abused in practice—there is a difference of opinion on this between my noble and learned friend and the noble and learned Lord, Lord McCluskey—it is clearly open to abuse. As an ordinary citizen it seems basically wrong, particularly in a jury system where the verdict is by majority and is not unanimous, that the defence ought to be able to pick and choose the composition of the jury.
I find that very offensive. If this matter comes to a Division, I shall support the Government with enthusiasm.
Lord Pearson of Rannoch: Perhaps I may come in very briefly to support that point. Although I have not done jury service in Scotland, I have done it in England. I attended court on four days on the trot and I was surprised that each time I came forward for jury service I was objected to by the defence who said, "We do not like the look of that fellow". I did not understand what was happening until some of my colleagues said to me, "If you turn up dressed like that you will never get on a jury. Try not shaving for two or three days, turn up looking extremely scruffy and you will get on a jury".
I followed that advice, and I was immediately allowed on the next jury with, I must say, deeply unsatisfactory results for other reasons. There were a number of people on that jury who would never find in favour of police or Crown evidence whatever the evidence before them. They had all been selected by the process which has been referred to. I agree with my noble and learned friend the Lord Advocate and object to this amendment.
6.45 p.m.
Lord Macaulay of Bragar: This has been a very interesting debate on an amendment which I thought would produce a short debate. The contributions of the noble Lords, Lord Stewartby and Lord Pearson, have been very informative in showing what life is all about at the sharp end of jury practice, so to speak. As the Committee will know, we are not allowed to have the privilege of serving as jurors.
When I was listening to the debate I wrote down two words, one of which was "why". No one in this Chamber can ignore what has been presented to us by the noble and learned Lord, Lord McCluskey, in support of his argument as an experienced High Court judge and
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who is one of the senior judges in Scotland. We have no other here. Why should his plea he rejected by the Government? All he is asking the Government to do is to go away and think about this matter again. They should forget about England and Wales. We are running our own legal system in Scotland within the Act of Union. That is one of the few rights which we have left. Perhaps we shall get others back in a few years' time.
The noble and learned Lord the Lord Advocate said, "We do not want to take up time-consuming objections". I do not know how often the noble and learned Lord has acted as defence counsel. There is a small amount of time needed to object. The clerk of the court pulls a little ticket out of a glass, tells counsel at the table "number 44", one looks at the list and says, "Not on; forget it". The clerk of the court says to the potential juror, "You need not come". That probably takes about 10 seconds. Therefore, in the course of a jury trial with three objections being taken, we are talking about 30 seconds to a minute of the court's time being taken up by the challenges. It is not a time-consuming objection at all.
As the noble and learned Lord, Lord McCluskey, has quite properly pointed out, if we do away with the right of objection, we shall go into the investigative procedure. Then we shall come to stupid arguments about cause shown. That is built into the criminal system in Scotland at the moment. I hope that I shall be supported in this matter. It operates through the goodwill of the defence and the Crown. The Crown comes to the defence and says, "By the way, that chap is on a charge of attempted murder". The police tell the Advocate Depute who then tells the defence who, 99 times out of 100, will say, "Just forget him and take him off the list". There are various ways of getting off a jury list which no doubt we all know. One can go to the clerk of the court and tell him that you are a journalist and know about the case. You can tell him this or that, and you will be excused.
What is important is that, as the noble and learned Lord the Lord Chancellor indicated yesterday, there are going to be inroads made into the legal aid system. I do not know what the package is going to be. There is going to be a Green Paper for England and Wales. I do not know what is going to happen in Scotland, but judging by the Government's performance we shall get a mirror image in Scotland. Who is going to pay the representatives for the time-consuming arguments about what constitutes "cause shown"? Although I have not researched this matter because I did not expect it to come up to the extent that it has today, to my knowledge no one in the criminal courts has defined what "cause shown" means.
If one takes away the job description of the person who has been cited as a juror and merely puts it down to investigation as to whether he is a proper prospective juror, one will perhaps get into real trouble. If the noble and learned Lord the Lord Advocate wants to get involved in time-consuming exercises, there is no more time-consuming exercise than three lawyers and a judge discussing what "cause shown" means. If this Bill goes through in its present form, no doubt that will be done.

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The courts in England, Scotland and Wales operate on the goodwill of everyone involved. For example, if I am told by my instructing solicitor that juror X has a bad reputation for whatever it might be, and that there are 10 witnesses who can speak to it, do I then go to the judge and say, "I am objecting to this man on cause shown"? The judge then says, "Show me the cause" because that is what "cause shown" means. I say to the judge, "I shall show you the cause. I have 10 witnesses outside who will tell you what Mr. Smith's propensities are either for the police, against them or for the accused, against certain kinds of offences" and all the rest of it. It is ridiculous to take this step at this stage with no reason.
We never get answers from the Government, but I should like to know why this provision is being made within the Scottish legal system. I should like to know where it comes from. It does not come from the Thomson Committee, as the noble and learned Lord, Lord McCluskey has already indicated. To my knowledge, no one has ever challenged the status of that committee to say that it was composed of a bunch of legal Rambos, so to speak, who did not know what they were talking about. It was a very distinguished committee, as the noble and learned Lord has indicated. Its views have been taken very seriously and it is hoped that that will always be so. Can the Minister tell the Committee where the demand comes from?
Arising from the debate is the parallel point which the noble Earl, Lord Balfour, raised. Will this measure apply to civil jury trials in Scotland? It is a while since I took part in one because civil jury trials in Scotland are a protected species. My recollection is that as regards the list of jurors for civil trials, everyone knows what occupations they follow. If I am wrong, I shall stand corrected.
If we are going to change the system for criminal cases, there must be change for one reason and one reason only—that is to say, that the knowledge on the part of the defence of the occupation of a prospective juror who may be "prejudiced" by his occupation against a particular kind of crime is the reason why the measure is being removed. It does not matter to leave it as regards civil matters. I say with some diffidence that it is part of the, "You have got to get the criminals convicted" mentality which pervades this Government's thinking. I suggest that the noble and learned Lord the Lord Advocate takes heed of the wise counsel which he has been given by the noble and learned Lord, Lord McCluskey, and thinks about this matter again.
Lord Rodger of Earlsferry: I always listen with the greatest care to what is said by noble Lords and by the noble and learned Lord, Lord McCluskey. Rightly and understandably, he has drawn attention to the position which was adopted in the Thomson Committee Report.
The Thomson Committee recognised that in principle it was difficult to justify a system of objections which were not based on cause shown. I start from the position—I do not blink from this at all—that the basic principle which underlies the selection of jurors in Scotland is that of random selection. Although I am, of course, aware of the qualifications, that is nonetheless
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the basic principle and I believe that it is proper. Because I believe that it is a proper basic principle, it seems to me that it should be departed from only where the reasons for doing so can be explained and justified. Where that can be done, jurors should be excused; otherwise, the correct basic principle is that they should not be.
Since the Thomson Committee reported, we have had—I do not hesitate to say this—the experience of a reform in England where peremptory challenge has been abolished, so we have been able to use that experience to judge what would happen if a similar reform took place in Scotland. That information was not available to the Thomson Committee, but we can now use it to test its judgment on the matter.
In addition to that, the Government have had available to them the results of consultation on this subject. Although not all the judges were in favour of a change, the great majority of High Court judges were in favour of the provision which is embodied in the Bill. Therefore, it certainly is not the case that the Government's position on this matter was unsupported on consultation. Indeed, although there was not a great majority, the majority of those who were consulted were in favour of the change. I say that that amounts to a perfectly proper basis for the Government bringing forward this proposal—
Lord McCluskey: On a point of information, is the Lord Advocate saying that the majority of judges in the High Court signified their support for this proposal?
Lord Rodger of Earlsferry: That is my understanding. However, I shall, of course, look into the matter and write to the noble and learned Lord if that turns out not to be the case. My understanding is that of those who replied, the majority were in favour of the proposal. Perhaps that is a more correct way of putting it; I shall have to check. Basically, the position is as I have stated it.
The noble and learned Lord asked about the potential juror who is half-witted. That matter was usefully drawn to our attention during consultation. It was precisely to deal with such situations that the provision was introduced. I believe that that is a practical way of dealing with the situation along the lines that were indicated by my noble friend Lady Carnegy.
Therefore, although one can imagine difficult situations, I believe that the provisions will work perfectly satisfactorily in practice. I say that partly because we can look to the position in England and Wales where we know that, in practice, the system has worked satisfactorily despite forebodings. What has happened in England and Wales does not bear out the idea that there might be long and time-consuming objections based on cause shown. It is easy to think that that might happen, but practice in England suggests that it does not.
I accept that in due course such points might arise in certain cases and that the question, "What is a proper cause shown?" may be discussed, a ruling eventually given, and that practice will settle down on the basis of that. I accept that, but I believe that the reform that we are introducing is right in principle.

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As the Committee will know, at the moment objections are taken because the defence conceives that particular categories of people might be less satisfactory as jurors from the defence point of view. Given that the peremptory objection is available, I do not blame the defence for using it in that way, but I say that it is wrong in principle and that what we are doing is right. Therefore, I adhere to the clause as it stands.
Lord McCluskey: Does not the noble and learned Lord recognise that the House of Lords is a very dangerous place in which to say that a thing should be abolished if it is not justified in principle? If there is one institution in our country which is not justified in principle, it is the House of Lords which is dominated by hereditary Peers. If the Minister wants some worthwhile work to do, perhaps he should include in the Bill a clause saying that the House of Lords should be abolished and justify that in precisely the same way.
Lord Macaulay of Bragar: I have heard the Lord Advocate's answers to the various questions that have been asked, but another issue arises. The noble and learned Lord said that the majority of judges who had responded were in favour of the provision. May I ask: responded to what?
Lord Rodger of Earlsferry: To consultation.
Lord Macaulay of Bragar: May we see the questionnaire and the answers? Could they be placed in the Library so that we can see which judges responded? Did the respondents include temporary judges, the College of Justice, and sheriffs who undertake 90 per cent. of the jury trials in Scotland? If I may say so, it appears to be fairly useless information at the moment. If the Lord Advocate writes to the noble and learned Lord, Lord
McCluskey, perhaps he will send me a copy of the letter.
In dealing with the reformation of the law in Scotland it is worth remembering that this is about the tenth such Bill in about 10 years. Who speaks for the judges on such Bills? The noble and learned Lord, Lord McCluskey, is a Member of this House and in due course we shall have among us the welcome addition of the Lord President of the Court of Session but, up to now, what canvassing of the judges has been done, and in what form?
I am sure that those who are interested in the jury system will not be impressed one whit by the Lord Advocate saying that if something is all right for England and Wales, it is all right for Scotland. We have had plenty of that already politically and we do not want any more. Our system is working efficiently at the moment and does not need any further amendment or tinkering of this nature. I am sure that all those who are involved in the administration of justice in Scotland will read the report of this debate with interest. We shall return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
On Question, Whether Clause 8 shall stand part of the Bill?
Lord McCluskey: I have nothing to add in relation to this matter.
Clause 8 agreed to.
Clause 9 agreed to.
The Earl of Lindsay: I beg to move that the House be now resumed. In moving this Motion I suggest that the Committee stage begin again at 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Gene Therapy
6.58 p.m.
Lord Colwynrose to ask Her Majesty's Government what plans they have for further initiatives in gene therapy that will help protect the United Kingdom's ability to contribute to new treatments and maintain its pre-eminence in medical research.
The noble Lord said: My Lords, I am most grateful to the Government for giving me this opportunity to discuss the current situation in gene therapy. I have re-read the debate in this House on 11 th May last year when the noble Lord, Lord Kennet, drew our attention to the problems and ethical considerations of genetic manipulation. He mentioned briefly the involvement of the pharmacological industry and it is this aspect I wish to address. I should declare that I am a director of a pharmaceutical company whose work on drug delivery and diagnostics will inevitably influence and be influenced by advances in gene therapy. I am also president of the Huntington's Disease Association.
The multi-billion dollar biotechnological industry has made significant advances in the past 20 years. By the 1980s it had developed to the point where genetic changes could be made to cells in the human body via a variety of delivery vehicles which allowed the insertion of DNA directly into the cell. The appeal of biotechnology today is the concept and possible reality of gene therapy assisting in the quest for total disease management.
September 1994 marked the fourth anniversary of the first therapeutic gene therapy procedure performed in humans and today the recipients are thriving. The progress of genetic therapy is remarkable. There are currently 63 ongoing trials in the US alone. There is worldwide interest in gene therapy among patients, the public and politicians. There is acceptance that the clinical strategies and regulatory framework are in place and that the complex ethical considerations are being addressed. If there were ever any doubt about the ability of gene therapy to change the medical and financial foundations of the healthcare system one need only have been witness to the unprecedented interest generated from within some of the major healthcare corporations in 1994.

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Pharmaceutical companies such as Merck and Co., Schering and Plough, Rhone Poulenc Rorer, Glaxo, SmithKline Beecham, Pfizer Inc. and Hoffman LaRoche have realised that they need to be involved now if they want to be associated with the realisation that gene therapy offers the opportunity to cure disease at its origin while improving the quality of life, reducing health costs and developing new preventive practices.
Gene therapy offers access to new clinical markets and global opportunities. Some financial forecasts predict a market size of between 2.8 billion and 5.8 billion dollars by 2000, growing to 50 billion dollars by 2010. However, success will depend on having the correct blend of core competencies and technologies to complete the cellular puzzle. Once each of those core technologies has been developed and incorporated into one system specific for a particular disease, gene therapy will have the ability to influence the treatment of most of the major diseases that affect us today. For example, cystic fibrosis is the most common genetic defect in Caucasians and is under serious frontal attack from the scientific community worldwide.
CF gene therapy studies are but one excellent example of how quickly development takes place in gene therapy and may go some way towards explaining the unprecedented number of collaborative agreements entered into recently by major pharmaceutical companies. This brings to light the need for a concentrated gene therapy effort within the UK. Recent substantial investment in the gene therapy technology by governments and major pharmaceutical companies around the world must now encourage the British Government to set in place a structure and foundation, outside that already in place, that not only attracts core competencies and technologies to the UK but ensures that they remain in the UK for the benefit of all British citizens.
The White Paper Realising Our Potential concluded:
"The United Kingdom must continue to play an active part in international scientific and technological activity at all levels whether this involves individual scientists, companies or Government. As the newly-emergent nations begin to contribute to extending the knowledge base on which the technologies of the future will depend, this country's world share of total scientific research will inevitably be reduced".
With certain exceptions the UK has been slow to pick up on commercial opportunities in biotechnology development and there is still much technology in laboratories throughout the UK that has not been adequately supported or exploited.
It seems to me that the admirable conclusion of the White Paper is being ignored. This country's world share of total scientific research has already been reduced and the "brain drain" of core competencies and technologies is increasingly evident. We cannot expect to remain competitive, let alone maintain world class scientific researchers and technologies when other countries have already realised the commercial potential of gene therapy and in doing so have committed extraordinary numbers of scientific staff and financial resources to its successful development.
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The Medical Research Council strategy for gene therapy is being advanced through two related programmes; first, the human genome mapping project, and, secondly, the initiative on the genetic approach to human health. Such strategies are commendable but they are not long-term solutions to the dilemmas facing UK gene therapy today. The UK cannot afford to await the outcomes of under-funded research programmes and training initiatives while other countries provide extraordinary amounts of finance for research programmes being undertaken by an already established base. The UK must become more commercially oriented so as to drive the projects to commercial success. In order to achieve that the UK Government, together with industry, must be encouraged to commit more funding to programmes to bring them into line with the USA, the rest of Europe and other newly emerging nations. Currently, the MRC allocates some £21 million for development and inheritance programmes, a portion of those funds being used to exploit the potential for clinical research and industrial application arising from rapid development in gene therapy.
Pharmaceutical companies are entering into alliances with gene therapy companies to focus on specific diseases. Recently Rhone Poulenc Rorer has aligned itself with a number of companies and could potentially spend 1 billion dollars by 2000. The alliance includes a mix of American and French partners as well as private companies and public institutions. That strategy ensures that all the requisite technologies are housed under one umbrella for the ultimate benefit of the company.
Gene mapping was initiated in the USA. In 1988–89 funding amounted to £41.3 million. The operating budget for 1992 was £110 million and for 1993 £113.8 million. Outside Europe and the USA, Japan is the only other country to have a human genome programme with a budget of £20 million or more for 1992. Other countries with smaller programmes include Canada, the Soviet Union, South Korea, New Zealand and Australia.
Singapore is another recent entrant into the field of biotechnology. Its government have launched a number of initiatives and made funding and investment available to biotechnological companies, ensuring that scientists from around the world will be attracted to work in Singapore.
Gene therapy is still in its infancy in this country, but, as illustrated by the rapid development of gene therapy for the treatment of CF, there is sufficient preliminary data within the industry to suggest that it is a powerful technology for the treatment of disease. We must strive to see that difficulties are overcome and that the combined efforts of scientific institutions, pharmaceutical and biotechnological companies, government and industry ensure that the technologies remain in the UK.
Initiatives by the MRC have seen the establishment of the clinical research initiative with centres at Nottingham, Glasgow, Edinburgh and Cardiff, in addition to the recently established clinical sciences centre. The MRC was also fundamentally responsible for the development of the Sanger centre and for the establishment of the European Bioinformatics Institute at Hixton Park, Cambridge.

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The technology transfer group brings researchers together with industrialists and venture capitalists by increasing the scientific community's awareness of research opportunities and the MRC collaborative centre has been allowed increased flexibility to enable it to start up new companies to pursue scientific knowledge derived by the MRC. The MRC has therefore undertaken many initiatives in the area of gene therapy and continues to implement the recommendations of the White Paper by bringing science and industry closer together. But can it truly develop the UK's international competitiveness with its limited financial resources and wide charter?
In the MRC's 1994 Scientific Strategy, the secretary of the council, Dai Rees, stated:
"While I would naturally wish for more funding, constraints on public expenditure are a fact of life and we must make the best of what we are given from the public purse and increase our income from other sources whenever we can".
That is an intolerable situation, implying that the MRC must strive to compete internationally while being tied down by lack of funds.
A report commissioned by the Office of Science and Technology to "identify areas in human genome research important for investment in the UK to benefit both basic science and commercial opportunity" concluded:
"There is an urgent need to investigate the ways in which the setting up of venture capital funded companies for gene discovery can be facilitated. Such companies should be able to access and exploit genetic and physical mapping technology in the UK or exploit it by another mechanism that leverages all appropriate technology".
As matters stand, the MRC cannot possibly be expected to fund all areas of research. At present the MRC is not, and will never be, in a position to provide a co-ordinated approach to gene therapy in the UK. If the UK wishes to remain competitive at an international level it must successfully and immediately put in place a co-ordinated network, together with a financial plan, that will ensure the UK becomes and remains competitive by maintaining and attracting key scientists and technologies.
In Canada, the networks of centres of excellence have been established by the federal government through the Natural Sciences and Engineering Research Council of Canada. Being an important part of Canada's science base, the centres bring together researchers from across the country in co-ordinated fashion to exchange ideas and knowledge, to facilitate the transfer of technology to industry, and to develop new approaches to new problems.
As an example, Neuroscience Inc.—a co-ordinated affiliation of five universities and individual investigators—has formed a partnership with MDS Ventures to allow investors to participate in the growth and development of neuroscience businesses and enterprises in Canada and internationally. Joint financing by the government and the institutions raised approximately 75 million Canadian dollars. This kind of initiative should be a pointer to the UK Government that there are a number of other bodies, both private and public, which are co-ordinating and funding different
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research and development areas by bringing them together in a co-ordinated fashion in order to gain a competitive advantage.
I hope that my noble friend the Minister will see that the US, France, Canada, Japan and Singapore have all realised the need for an appropriately funded and co-ordinated approach to the problems that face the development of gene therapy today. Those countries have been quick to recognise and back programmes that have potentially enormous returns for money invested.
I conclude by making a few suggestions as to how the UK could align itself with the rest of the world with respect to gene therapy. The UK has a history of leading the pharmaceutical and biopharmaceutical industries with products in the top 20 selling pharmaceuticals and potential blockbuster products and technologies under development. Very significant export earnings have been derived and a co-ordinated gene therapy approach could produce similar benefits.
The importance of biotechnology investment in the UK was recently reiterated by the establishment of the inward investment team, designed to encourage US and Japanese companies to invest in the UK. However, as the UK already has a network of world recognised scientists and technologies, we should also be actively encouraging domestic investment to ensure that scientists and technologies remain within British control and are brought together in a co-ordinated fashion, supported by comparative global funding. That strategy will ensure that the application of these technologies leads to the successful development of important gene therapy products within the UK, eventually impacting on the wealth of the nation and the health of its citizens.
The UK must establish a multi-layered highly co-ordinated organisation to draw on all the expertise and current research that is available and being undertaken. Scientists and technologies must be maintained and kept in the UK and potential partners must have access to them and show a willingness to share developments and experience in order to emphasise the commercialisation of findings. The attraction for the partners is the recognition that commercial success will be achieved by collaborating with others.
Fundamental support led by government in a drive towards successful gene therapy application will ensure that greater investment is attracted from industry. World-recognised scientists and their technologies will simply not remain in, or be attracted to, the UK unless they have suitable domestic financial support—either private or public—together with first-class facilities to ensure that they can fully develop technologies to a commercially exploitable stage.
I apologise for rushing through my speech. When I arrived an hour ago I had to cut out more than half of my 35-minute speech. I am grateful to all noble Lords who are to take part in the debate. I look forward to

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hearing what they have to say, in particular my noble friend the Minister. I am grateful to her for being here tonight to answer my Question.
7.13 p.m.
Lord Kennet: My Lords, before addressing what the noble Lord said, and this Question, perhaps I may draw a distinction between somatic gene therapy and germline therapy. The former cures sick people and is an extension of ordinary Hippocratic procedures. As regards human relations, it has been familiar for thousands of years. It involves ordinary doctors doing ordinary things with new understandings and new technologies. Germline therapy on the other hand alters the heredity of a given strain of human beings in permanency. There is a consensus—and we may be grateful for it—that somatic therapy has no ethical obstacle in its way; that it is to be welcomed and worked for by all concerned as hard and as fast as they can. On the other hand, there is a consensus that germline therapy should not be contemplated for a long time; until there has been further time to examine the ethical and even ontological content of such a procedure.
It struck me that a great deal of what was said by the noble Lord, Lord Colwyn, was familiar. The technology is new and it is hard for this country to catch up and keep up with it. That is partly because we are not as big as some of the other countries and because during the past 15 years governments have prided themselves on not hindering companies, but not helping them either.
I believe that the noble Lord is right in saying that in this area, as in others, there would be a case for more government intervention, a government point of contact and a government ring-holding, in order to help corporations to agree on what they can do together and to reach civilised disagreement on what they want to compete over. They are all familiar concepts. The Government do not do enough.
However, I believe that in this area that would be exceptionally difficult. In this country genetic technology is not developed by a number of British corporations which are registered here, have all their shareholders here and sell all their products here. It is among the most internationalised of all the hi-tech industrial enterprises one can think of. The role of a British government in helping British corporations and those portions of, for instance, American-owned corporations which function in Britain needs to be compared with the potential role of other governments doing the same thing in other countries.
The noble Lord gave certain figures that looked hazy and implied that more was being spent per capita by the French taxpayers, possibly even the Singaporean taxpayers, than is paid by the British taxpayers to help these things come about. If that can be established, there is certainly a case for Britain to do as well as or better than our commercial competitors.
I wish to raise a particular aspect, which is patenting. I never know whether to say "paytent" or "pattent". I believe that I am old enough to say "paytent" but perhaps I should adopt the more recent American pronunciation "pattent". Noble Lords who are interested
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will remember that a year or two ago a fearful situation developed in which an American corporation started to claim, and made progress towards obtaining, a patent on healthy human genes in living human bodies. That would have had the effect that anyone anywhere who wished to correct a defect in gene X in a certain position on a certain sequence in the chromosome, whatever means or technique they used, would have to pay a royalty to the company which first identified the position and coding purpose of the gene.
That was taken to the American Patent Office, which initially smiled on it to such an extent that our own Medical Research Council, backed by the Government, had to take up a defensive position and say in effect, "If you do this we shall do it too, and therefore we cannot proclaim in an unqualified manner that we think it is an absurd, a faintly monstrous idea to patent living cells in living bodies walking about the world. In this the Americans, with us regretfully going along behind, differed sharply with most of the continental countries, which under French conceptual leadership instantly took up an absolute position against any such notion.
When the time came for decision the American Patent Office said, "No, you can't do that. It is absurd. You are supposed to patent inventions, and you certainly didn't invent those genes walking about the world in all those human bodies".
There has since been a renewed attempt by American interests to obtain an American patent. It has been made in particular by corporations which come forward and say, "You had better give the patent to us, otherwise our employees who did the work and made the discovery will leave us and leave the country, and go to work somewhere else where they can get a patent". If I understand rightly, the American Patent Office is now facing that problem and wondering what to do. Once again, it is possible that they will agree to issue patents to many different applicants who have discovered the position and function of many different genes in the human body.
If that were to happen, the question is: what would the British Government do about it? Would they be forced to go back into the position they tentatively occupied a year or two ago of saying, "Well, we've got to do it too"? Or would they stand with the French Government, and with the European Commission, and say, "Let the heavens fall, but we will not permit such an absurdity in our country"? It may be hard to answer that now, but it is an interesting question.
Equally, what financial effect do our Government expect the patenting of healthy genes in the manner that I have described to have on the therapies when they become available? It could be quite crippling, and it would certainly be very broad. Another scenario is the following; what about patenting the means of carrying a healthy gene from a healthy person to an unhealthy person? As noble Lords will know, the way that one corrects an unhealthy gene is by flooding it with healthy genes from the same position on a healthy chromosome in another individual. It is obviously legitimate for an inventor or company to patent a means of carrying a healthy gene from one individual to another. But it is not very difficult to find those means; the difficulty is

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to find what gene does what. Still, in the future there is no doubt a legitimate field for this sort of patenting of somatic gene therapy, even if it is a rather smaller one.
How in the view of the Government, will the development of patents in this field impose an unacceptable financial burden on our health service and, indeed, on the provision of medical treatment, whether public or private, in this or in other countries of the world?
7.22 p.m.
Viscount Craigavon: My Lords, I am grateful to the noble Lord, Lord Colwyn, for his formidable and wide-ranging speech and review of the field. I should like to emphasise concerns in two areas; namely, the need for an appropriate regulatory framework and the problems surrounding patents. Having just listened to the most interesting speech made by the noble Lord, Lord Kennet, I realise that it is extremely difficult in such a very short debate to make a very meaningful contribution on the subject of patents. However, I shall try to do so.
It is my impression that things are moving so fast in the field that it will not be enough in the future to react on a case by case basis. Given the considerable disagreements and complications of patenting and the fact that so much is now at stake, I do not believe that even the well-managed market place will be a suitable forum from which to expect an acceptable outcome—acceptable that is, in part, to the public, which in this field may at present have exaggerated hopes, fears and expectations.
Part of the process of reassurance and education can really only be achieved by the presumption of open and flexible discussion and decision-making, whenever possible. The Select Committee on Science and Technology in another place is providing an excellent forum for the expression of views and a snapshot of current opinion; but it will probably be another year at best before the Government's reaction to that committee is published. Things are moving so fast that major action should not wait until then.
It is already a year since the authoritative Nuffield Council on Bioethics in its report "Genetic Screening, Ethical Issues" recommended that a central co-ordinating body be established. The MRC's excellent gene therapy advisory committee can give advice, co-ordinate data and research and also create policies; but it is not a regulatory body that can provide an enforceable framework of minimum standards and best practice, against which developments can be measured and shaped.
I know that the organisation called the Genetic Interest Group supports the creation of such a regulatory body. The group is an influential umbrella organisation of over 100 charities, voluntary organisations and support groups for various genetic conditions trying to co-ordinate common action.
Perhaps I may offer a relatively minor recent instance of the sort of problems that are arising. About a month ago, according to an account in the Independent newspaper, a firm was launching a postal service test for the cystic fibrosis gene. That was not a cure, but was
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to indicate if the subject was a carrier. A counselling service was to be provided by telephone. According to the article, the Department of Health was not told in advance about the new service and so, naturally, a spokesman for it could not give a very useful reaction or recommendation to the development. Someone was then quoted on behalf of the firm saying that, in many ways, the test could have been offered over the past three years, concluding that the block has been lack of mechanisms within the NHS. Even if that article is not completely accurate, it highlights just the sort of problems that are capable of arising.
Perhaps I may take that example a little further. What happens if another firm offers a similar but cheaper test, but without the counselling? Will the original firm be compelled to drop the counselling in order to survive? What happens if another firm offers a very much cheaper test which later turns out to have an unacceptable rate of false positives?
How and when are we at least going to set minimum standards, and how will they be enforced? I hope that the answer is, "as soon as possible". If the regulatory authority has to be as comprehensive as the HFEA (the Human Fertilisation and Embryology Authority), so be it. Given the very much wider subject matter, it is desirable that it should be more proactive and encouraging. Part of the need for such a body is to reassure the public at this stage that a sensible and responsive body is in place, with habits of openness.
Perhaps I may now turn to the patent aspects. I shall start with a small but completely different example from the same article in the Independent of 9th December of last year, which reads:
"The gene for a human hormone which eases labour during childbirth is now the property of a research institute at Melbourne University. The first objection to the patenting of a human gene was rejected yesterday by the Munich-based European Patent Office. A board upheld the university's patent on the gene, in the face of objections by the Greens in the European Parliament that it was ethically unacceptable".
I have no further information on that particular case. But that, again, is an example of the sort of situation that is arising.
One of the most valuable aspects of patents is in creating certainty and, as far as possible these days, international certainty. Presumably on the subject of gene patenting we are trying to proceed in step with our European partners. It appears to me that conflicting interests are already becoming so entrenched, and so much is at stake, that it will become more impossible to unscramble things into any form of sense the longer the situation is unresolved. It is said that these gene patenting issues have already created a climate of mutual distrust among scientists.
Perhaps I may give a last example of a discovery, announced last September by an American university, of one of the most eagerly awaited genes for breast cancer, apparently the first gene for a lethal disease affecting large numbers of people. It should be said that it is responsible for only 5 per cent. of breast cancer. Pre-existing arrangements, despite the American university and some small British involvement, have led to a large American pharmaceutical company becoming,

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quite legally, the beneficiary of the patent—this to the considerable dismay and disapproval of publicly-funded scientists. The diagnostic test may not be ready for two years, but it has been estimated in the specialist media that the cost per test might be as much as £600. All sorts of questions arise, not least the affordability of such tests to the NHS. That is just the beginning.
As against that exploitable gene patent, there are many so called "orphan" diseases which may benefit from gene therapy but which are so numerically small that it will never be commercially worth while to follow down that path. They need some sort of regulatory encouragement.
As far as patents are concerned, I hope that the Government, and in particular the Department of Health, can give a lead on this and announce that they are prepared to argue—as it is perfectly respectable to do—that the human genome is not to be regarded as a patentable invention but a natural phenomenon and that an unreasonable monopoly will not be created.
I hope the department will accept that it is more convincing now, rather than later, to warn hopeful biotech companies that the sort of excessive monopoly pricing that is associated with drug patenting will not be accepted in gene therapy. This is the sort of area that an effective regulatory body could be created to control. I hope that the department could also take a lead in offering that as an international example.
7.31 p.m.
Baroness Hooper: My Lords, I also congratulate my noble friend on his Question and on the way in which he introduced it. He has the advantage of understanding many of the medical implications of these very complex issues which are so difficult for the average layman to understand and grasp. I also agree with his emphasis on the need for unrelenting effort in the research field in order that the United Kingdom can maintain its pre-eminence in this area, and also with the necessary follow-up on commercial development. In this context, I welcome the joint initiative by the health and industry departments to which my noble friend referred, which is known as "Prescribe UK" and which was launched last December. It aims to encourage pharmaceutical and biotech inward investment in the United Kingdom. That reminds us that the United Kingdom is among the world's leaders in invention and scientific exports and that we have a strong science base.
I also welcome the announcement about the establishment of a new national forum which is to be chaired by Professor Michael Peckham, the NHS director of research and development, and which is intended to bring together major funders of health research including the MRC, charities, universities and industry.
My interest in this subject dates from the well informed discussions we had in your Lordships' House on the Human Fertilisation and Embryology Bill a few years ago in which I was very much involved. However, I must also declare an interest in that I am now a director
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of SmithKline Beecham, a company which is doing vital research into the application of genomics to drug discovery and diagnostics development.
Within the time constraints of this short debate I should like to concentrate my remarks on the implications that this rapidly developing technology will have in the area of medical ethics and human rights protection. This has already been touched upon, but there is no doubt that these scientific advances will revolutionise healthcare and offer disturbing as well as exciting new choices for everyone concerned. I therefore wish to urge the Government to ensure that in any work they support and encourage they will insist upon the highest ethical standards being maintained, and that they should give consideration to the regulatory framework as the noble Viscount, Lord Craigavon, also insisted. Indeed, it might well be appropriate to reconvene the Warnock Committee or create a successor to it in order to keep hand in hand with the scientific progress the consideration of the human and social issues.
I would be glad to hear the views of my noble friend the Minister on that matter and indeed on the Nuffield Foundation recommendations. It is by no means too soon for that given that, for example, prospective genetic profiling for disease risk already has the necessary testing procedures in place and commercial development is proceeding rapidly.
It is interesting to note in the international field that the Council of Europe is tackling the issue with a draft bio-ethics convention which will be debated by the parliamentary assembly at our next plenary session at the beginning of next month. I was also interested to note that at the forthcoming International Parliamentary Union international conference to be held at the end of March one of the topics to be discussed is bio-ethics and its implications worldwide for human rights protection. I feel sure that there are a number of other international and learned bodies giving consideration to that issue and that we in this country will not lag behind.
In conclusion I repeat that these are indeed exciting vistas for the future of medicine and that here in the United Kingdom we have the opportunity to be at the forefront of development and that it is an opportunity we should not lose. Yet in conquering this new world of genetic knowledge, as we can already define ethical, legal, social and economic issues of stunning complexity, we ignore these issues at our peril.
7.35 p.m.
Baroness Jay of Paddington: My Lords, I, too, should like to thank the noble Lord, Lord Colwyn, for introducing this interesting subject this evening in his Question. I congratulate him particularly in making a précis of his speech in such an authoritative way that he conveyed much information in half the time he had expected to take. I am also grateful to my noble friend Lord Kennet for identifying the subject of our debate so precisely this evening and for concentrating our attention simply on somatic genes. As was also emphasised by the noble Baroness, Lady Hooper, we should consider those matters particularly in relation to conquering disease.

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I think we are all aware of the pre-eminence of the UK in this particular area. I shall just mention one field which is of particular interest to me—the noble Baroness, Lady Hooper, touched on this—and that is the whole area of in vitro fertilisation and embryo therapy. Without trespassing into the difficult ethical ground which some of us considered earlier last year with regard to some of the amendments to the criminal justice Bill—which is now the criminal justice Act—and some of the other more difficult subjects we embarked on then, I should say that the whole question of pre-implantation embryo selection has been one of the most important areas where this country has led genetic development.
I emphasise that some of the developments in which we have led the world have focused more on the abilities of our scientists than on the technology that they have used. In introducing this debate, the noble Lord—and other speakers—referred to cystic fibrosis as one of the particular triumphs. The noble Lord, Lord Colwyn, in passing—perhaps his remarks were slightly contracted as regards this matter—referred to the brain drain of some of our scientists who are involved in this field.
I believe the Government must be conscious of the need to preserve our pre-eminence in this field. Over the past six months there has been great concern that some of the scientists who are working most prominently in these fields have left. I draw particular attention to Professor Bob Williamson of St. Mary's Hospital, Paddington, who was at the forefront of the development of the work of identifying the cystic fibrosis gene. He is one of those who has decided to leave this country. Some publicity was devoted to this. I cannot forbear but to mention to the Minister one of the reasons which Bob Williamson was quoted as giving for leaving. He said that he could no longer work in a pure scientific atmosphere which depended on co-operation—that is precisely the kind of co-operation to which several noble Lords have referred this evening—in what he described as the competitive and bureaucratic nightmare of the new health service. That is obviously a particular viewpoint; but I must say that I, from a lay position, support that viewpoint. However, there is a more general anxiety among the medical establishment about the lack of clinical geneticists to develop some of the work which is being done in the laboratory.
The Medical Research Council, in recent evidence to the Science and Technology Committee in another place—to which the noble Viscount, Lord Craigavon, referred—said that:
"the number of clinical geneticists in the UK is very small and this is a matter of considerable concern".
That is an issue which needs to be addressed at a national level. The whole area of manpower and pre-eminence in scientific excellence, and particularly in relation to individual scientists, is a further question upon which I should like the Minister's comments when she replies.
As has been said, we have been slow to pick up on some of the biotechnologies which have been developed. That is something about which we should be very concerned. I shall be very interested to hear the
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Minister's response to the collaborative arrangements suggested by the noble Lord who introduced the Question between commercial companies and research funding councils such as the Medical Research Council and the Government themselves. Clearly, from what has been said, underfunding of work in this field, particularly in comparison with some of our international competitors, is one of the concerns about which those who have looked at the subject in detail feel most strongly.
I was particularly interested that the noble Lord, Lord Colwyn, suggested that this form of underfunding was a particular threat in the area of long-term solutions to some of the problems being addressed.
I should also like to support the suggestion which came from both the noble Viscount, Lord Craigavon, and the noble Baroness, Lady Hooper, and which has been mentioned previously in your Lordships House, about the need for developing a further regulatory body beyond those which now exist and perhaps, as the noble Viscount, Lord Craigavon, suggested, depending on the somewhat controversial it must be admitted but nonetheless practically very successful example of the Human Fertilisation and Embryo Authority. If something in that field could be expanded and developed, it might be of great national importance.
I am aware that this is a very closely timed debate and that the Minister must be given time to respond in some detail to all the various points which were made by the noble Lord, Lord Colwyn. All I would say in conclusion is that on 11th May last year your Lordships had an interesting debate, introduced on that occasion by my noble friend Lord Kennet, about the whole area of human genetic manipulation in which there was agreement on all sides of the House that our record in this country on this subject is extremely good. There was also a concern that we need to develop a more succinct and precise national strategy so that we could have co-ordinated investment both in people and in technologies to see that our pre-eminence continues. I very much hope that when the Minister replies she will be able to give some indication that that will happen.
7.42 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, I too am grateful to my noble friend Lord Colwyn for drawing to the attention of your Lordships' House one of the most interesting and exciting areas of medical research. It is an area in which this country makes a significant contribution. As my noble friend indicated, genetic research has the potential to produce a quantum change in the practice of medicine. Our hope is that by building on the links between developments in basic science, NHS research and development and best clinical practice that research will bring major advances to the diagnosis and, eventually, to the treatment of a wide range of serious diseases for the benefit of the NHS and its patients.
My noble friend Lady Hooper and the noble Viscount, Lord Craigavon, were right to highlight the ethical aspects of this work. In order to ensure that the Government had the very best advice, in 1992 the

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Clothier Committee was set up to consider the ethics of gene therapy and to examine not only its potentials but some of the dilemmas it presents. I believe that as my very distinguished predecessor, my noble friend was instrumental in setting up that committee.
Like the noble Lord, Lord Kennet—surely one of the clearest and most knowledgeable people on this subject—the committee took the view that somatic gene therapy, which only alters the patient's individual body cells, does not in itself raise new ethical challenges. As such we feel that it should be regarded as research and should be subject to the already accepted ethical codes. However, modification of the germ line—changing the genes which are transmitted to future generations—was not considered acceptable. I am grateful to the noble Lord for drawing the distinction so clearly and explaining the significance between the two.
Later that year, the Government announced their agreement in principle to the main recommendations of the Clothier Report. This led, after public and professional consultation, to the establishment in 1993 of the gene therapy advisory committee under the chairmanship of Professor Dame June Lloyd. Three members of that committee are ethicists, so the field is well covered, and one is a lawyer. The committee's remit is to consider all aspects of gene therapy research. It does that by carrying out a case-by-case review of individual protocols.
I understand the reservations that have been expressed tonight and that there are those who want that committee to have a stronger statutory base. However, we believe that it is working well. As a committee it works closely with the Medicines Control Agency which has responsibility for overseeing all clinical trials in patients.
In such a rapidly evolving field it is important to have a system which is flexible enough to accommodate rapid changes in research and clinical practice. The gene therapy advisory committee is therefore a non-statutory body. However, it has been made clear to researchers that no study involving human subjects should proceed without prior approval from the committee.
Last year a number of clinical trials began which the Government hope will result in successful clinical interventions. A total of 10 protocols were approved. These are exciting developments since they deal with severely disabling conditions such as cystic fibrosis—mentioned by my noble friend Lord Colwyn—three forms of cancer and severe immune deficiency. Protocols are still under review for breast cancer and a form of leukaemia.
The main responsibility for government-funded research into human genetics lies with the Medical Research Council. The MRC spends around £12 million a year on the human genome project, whose main aim is to link specific diseases to the gene responsible. This important project is too large for any one organisation, and requires national and international collaboration. Apart from the MRC, support for genome research in the UK is also provided by the Biotechnology and Biological Sciences Research Council, the Wellcome Trust and the Imperial Cancer Research Fund as well as other charities, such as the Cancer Research Campaign.
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The UK has also been particularly successful in attracting funds from the EC human genome analysis programme, which was mentioned by my noble friend Lady Hooper.
Taking this work together, the UK has a thoroughly credible national genome programme. This is borne out by a bibliometric analysis conducted in 1990 which showed that apart from the USA—which spends approximately 10 times as much as this country—the UK leads the world. This lead is the result of the very good UK basic science, allied to the clinical environment provided by the NHS. It is a combination which has attracted leading scientists to our country from other parts of the world.
As my noble friend Lord Colwyn mentioned, the Government's White Paper Realising our Potential strongly promotes a UK science base which is linked to wealth creation. That link, which noble Lords have highlighted this evening, is crucial. The Department of Health's research and development strategy is also a step forward in developing a rational response to anticipating developments.
Two years ago the MRC set up a second major programme of genetic research to complement work on the human genome mapping project. That programme is called the genetic approach to human health and is designed to take the fruits of genome research into health care. Initiatives include work to improve understanding of the gene products which are responsible for dysfunction, the development of new screening tests, better methods of genetic counselling and the development of somatic gene therapy.
The potential for gene therapy in treating disease is being actively pursued by MRC groups in Edinburgh, London and Birmingham. Those multi-disciplinary groups have the expertise to bring laboratory-based research through to a defined clinical goal.
The MRC also has an industrial advisory group to identify opportunities for collaborative research, and as clinical trials are further expanded, the MRC will work through this group and with the pharmaceutical industry to encourage a further scaling up of materials needed for clinical trials.
My noble friend Lord Colwyn mentioned the need to raise venture capital. The MRC has set up three new companies to exploit genetic research including Therexsys, the UK's first company dedicated to gene therapy.
There is a need for skilled researchers. To meet that need the council funds researchers to visit overseas laboratories in order to learn new techniques and supports a small number of Ph.D students in that area.
Perhaps I may address the general issue that has been raised not only by my noble friend but by the noble Baroness, Lady Jay. I refer to the question of the brain drain. I think that that catchphrase is now obsolete and that in fact we ought to recast it as the "brain gain". In the past 14 years far more academic staff have moved to this country than have left it. In 1993 there was a net inflow of staff at all levels of academic posts with the exception of that of a reader/senior lecturer where there was a small net outflow. Flows in and out are very

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small. However, an independent report by the science and engineering policy studies unit entitled The Migration of Scientists and Engineers, confirms the indications from an earlier study and from university statistics that the brain drain is not a cause for concern.
Lord Kennet: My Lords, perhaps I may interrupt the noble Baroness to ask for clarification of those figures. First, are those figures for all scientific research or for all medical research, or just for genetic research? Secondly, do they take any account of where those people are coming from? If the outflow is all to the United States, and the inflow is all from Tanzania, it is not so interesting.
Baroness Cumberlege: My Lords, very high calibre scientists are attracted to this country. This report covered a wider area than simply geneticists. It covered engineers and other scientists. I shall certainly send a copy to the noble Lord if he would like to have a look at it. I believe that there is a common belief in this country that scientists are leaving in droves and that we attract very few. That is not the case. In the past two years the director of the British Postgraduate Medical Foundation reported that we have attracted more world-class scientists from as far afield as Australia and the United States than we have lost. Therefore we are quite convinced that there is a brain gain.
The MRC has set up a gene therapy co-ordinating committee to oversee national activities, to develop policy with other sponsors and industry, to advise the community on issues pertinent to gene therapy, and to assist in the co-ordination of data from clinical trials. That committee includes nominated representatives from major research centres, industry and the medical research charities, from the health departments and the Medicines Control Agency.
The Department of Health keeps in close touch with MRC developments in genetic research through the concordat between the department and the MRC. Under that arrangement there is regular contact about all aspects of work including genetics. I believe that the post of Professor Michael Peckham, the Director of Research and Development, was very skilfully negotiated by my noble friend Lady Hooper through your Lordships' House. It was a suggestion by your Lordships. It has proved to be a very successful post. I think that many of the fears that have been expressed tonight are not founded, because Professor Peckham's whole responsibility is to co-ordinate research within the country. I believe that he does that extremely well.
Professor Peckham commissioned a genetics research advisory group under the chairmanship of Professor Martin Bobrow, Professor of Paediatric Research at Guy's Hospital to provide an informed view of the possible implications of genetic research for the NHS over the next five to 10 years. Its report is due to be published shortly.
The report discusses anticipated advances in areas such as diagnosis and screening, gene therapy, and genetic techniques and laboratory services. The report also considers the impact of those advances on genetic services in the NHS, including the importance of
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adequate provision for counselling, and the implications of genetic testing as it becomes more available in general practice.
My noble friend Lord Colwyn has acknowledged the potential contribution of genetic research to human health and the wider implications that it has in social and economic terms. The report reflects that view and the view of the Government's White Paper, Realising our Potential, which emphasises that advances in research and development should benefit quality of life and contribute to wealth creation. Advances in genetic research offer the prospect of considerable gain, not only for the NHS and its patients but also, as has been highlighted tonight, for the British pharmaceutical and healthcare industries, with the attendant benefits of employment, exports and national income. Those prospects are being currently explored by a number of initiatives arising from the White Paper including the technology foresight programme which will be published in the spring.
Currently the main impact of genetic research is on inherited diseases such as cystic fibrosis, muscular dystrophy, haemophilia and Huntington's disease. It is our hope that an increasing programme of work on the genetics of common diseases will enable progress to be made in tackling disorders such as diabetes, hypertension, asthma, coronary artery disease and several forms of cancer. The Department of Health's research and development strategy is currently exploring a range of practical and ethical aspects of genetic research. Last July the NHS research and development programme published its priorities for cancer which gave a high priority to such work.
The noble Lords, Lord Kennet and Lord Craigavon, raised the issue of the patenting of genes and the implications of that for research. The Government's view is that information discovered on the structure of genomes should be freely available to researchers in the field. Lack of access would delay progress in research. However, that should not preclude industry from obtaining patents on novel inventions derived from gene analysis and other genome work. Without such protection there would be no incentive for industry to invest the large sums of money required to bring such inventions to the market to the benefit of patient care.
The noble Lord, Lord Craigavon, also raised the point of commercial genetic screening tests. That is a matter wider than we anticipated this evening. I shall be delighted to write to him on that subject.
In conclusion, the United Kingdom enjoys a worldwide reputation in the field of genetic research. Through the work I have described your Lordships will have had a feel for the way our country is taking forward this work into an exciting area of medical research with potential benefits for the nation's health and wealth. The first clinical trials are already under way and results from the research groups are encouraging, suggesting that further trials are not far off.
Through MRC funding, the essential support of many of the research charities, and the work of the NHS research and development programme, the Government are confident that the system of oversight for UK gene therapy research will encourage and above all assist

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researchers making progress to the target of achieving real and lasting benefits for patients. The mechanisms that I have described will allow the development of that important field of medical research to proceed in a climate of public, parliamentary and professional reassurance. The future looks bright.
Baroness Miller of Hendon: My Lords, I beg to move that we adjourn during pleasure for two minutes until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.58 to 8 p.m.]

Criminal Justice (Scotland) Bill [H.L.]
House again in Committee.
Clause 10 [Judicial examination]:
On Question, Whether Clause 10 shall stand part of the Bill?
Lord Macaulay of Bragar: I have already given notice that I move that Clause 10 do not stand part of the Bill. This is quite an important matter in the administration of justice in Scotland. As we understand it, the proposal means that at an early stage in the proceedings the Crown will have an opportunity to cross-examine an accused person who may well not know, and in 99 cases out of 100 will not know, what the evidence against him may be.
At the moment limits are placed upon the questions which may be asked in the presence of the sheriff as to whether an accused person wishes to present a denial, an explanation, a justification or a comment. Questions may be asked about any extra-judicial confession that the accused may or may not have made to the police. So he is given an early opportunity to deal with that, which is fair enough.
However, the problem under Clause 10 is that in the proceedings the accused's solicitor has only limited rights to intervene in the judicial examination. People keep talking about the right to silence. I have always held the view that, since the judicial examination process was brought into the law of Scotland, to say that there is a right to silence is a misnomer. In any event the Government's proposal in Clause 10 will transform the judicial examination into an inquisitorial procedure which is inappropriate to the adversarial system we have. It would give the Crown an early bite at the accused to try to get him to admit to whatever charge he might face. If that happens, then, apart from allowing the right to obtain an admission from the accused, there will have to be the right for the accused's solicitor to cross-examine.
There is also a major problem that if the object of the exercise is to elicit an admission from the accused, then any questions directed towards him to elicit that admission must necessarily rest on information in the possession of the prosecutor which indicates that the accused is guilty of the offence as charged.
In most cases the accused will not have an opportunity to see any of the evidence against him. What may happen is that if his solicitor is doing his job
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properly he will object to the line of questioning on the basis that he does not have in his possession the material on which the question which seeks to elicit an admission is based. The solicitor will then ask for a continuation of the case. That seems an unnecessary extension of the judicial examination procedure which is not welcome anyway in Scotland, but it is there. I oppose the Motion that Clause 10 stand part of the Bill.
The Earl of Mar and Kellie: I support the noble Lord, Lord Macaulay, in opposing Clause 10. I am not a lawyer but as a former prison social worker I am reasonably familiar with some of the people who will be the subject of a judicial examination. My understanding is that at such an examination neither the accused nor his solicitor (nor necessarily the prosecutor) is always in possession of all the charges. That seems an unsuitable moment for the prosecutor to attempt to elicit any admissions. Bearing in mind that the alleged event may have taken place some time before or that there could have been considerable drama in the days prior to the judicial examination, a period for reflection and for advice to be taken is needed before any admissions are sought.
I can see that Clause 10 conforms to the overall thrust of the Bill, being a modification designed to increase the possibility of conviction. I fear that it may lead to the possibility of wrongful conviction which would be a wholly unacceptable outcome.
Lord McCluskey: In my opinion, the speeches made in support of the Motion that Clause 10 should not stand part of the Bill are based upon a misunderstanding. First, the noble Lord, Lord Macaulay, referred to the right of silence. I wish to quote a passage from paragraph 4.16 of Scottish Law Commission Paper 130. It puts the point rather better than I could. It states:
"The first principle is sometimes referred to as 'the right of silence'. We find this an unhelpful expression and would adopt the observations of Lord Mustill in a recent case".
There follows a quotation from the noble and learned Lord, Lord Mustill:
"This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute".
It is very important always, when talking about the right of silence, to distinguish between the right of an accused person to remain silent under examination by the police, his right to remain silent once he has been charged—a very significant stage in the criminal process in Scotland—and his right to remain silent when he is in court. Section 20A relates to stage two when he has passed from the hands of the police. By charging him the Lord Advocate or his depute has in effect put the person in the custody of the court. That person is then brought before the sheriff.
The purpose of Section 20A which was explained in the Thomson Committee and in debates on the 1980 Bill was effectively to allow the person to be brought before the sheriff, and therefore there was protection for him. He was to be given an opportunity to explain matters averred in the charge. That is putting it very shortly. In

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essence what happens is that at that stage a petition has been prepared which specifies that he, on a particular date, in a particular place, in a particular manner, did certain things to certain people. That is usual standard wording.
The procurator fiscal is therefore quite entitled to say to him: "Do you deny being in Sauchiehall Street? Do you deny being in the company of A and B, who are also mentioned in the petition? Do you deny being in possession of a knife?", or matters which are averred in the charge. It seems to me that there was a slight misdrafting of the provision initially. It should have contained the word "admission". The fiscal ought to be able to say: "Do you admit being in Sauchiehall Street on such and such an occasion? Do you admit that you were in the company of X, Y, and Z? Do you admit that?". If the accused would have answered to the first question, "I deny it", he can say, "I don't admit it". It is exactly the same situation. I see nothing to worry about here. There is no extension of the power of the fiscal. Apart from anything else, Section 20A contains in subsection (2) the provision that,
"the prosecutor shall, in framing questions … have regard to the following principles:
(a) the questions should not be designed to challenge the truth of anything said by the accused".
So the purpose of the questioning is not designed to secure an admission. It is to ask the accused if he is making an admission. He has a choice of three answers. He can say, "I admit it", "I deny it", or "I decline to answer". Accordingly, it appears to me the amendment is essentially technical in character. It does not expand the powers of the procurator fiscal. It invades no part of the right of silence, of which I am a strong defender. I would support the provision as simply a technical provision designed to clarify matters in the existing legislation.
Lord Fraser of Carmyllie: I am extremely grateful to the noble and learned Lord, first, for his very clear and lucid explanation of the broad group of rights and immunities that are too readily put together under the single heading of a right to silence. I would similarly like to adopt the language that he used in describing this amendment as simply technical. However, because there has been considerable discussion of this matter, particularly in Scotland, it is clear that some commentators have misunderstood the scope of what is being proposed. It may be helpful if I explain a little of what lies behind our thinking.
What this clause will not do is transform a procedure into something radically different to what it is now. The problem, as the noble and learned Lord said, is that at present a procurator fiscal may ask at judicial examination questions directed towards eliciting any denial, explanation, justification or comment from the accused about the charge against him. While this does not explicitly exclude questions designed to establish whether the accused admits any of the accusations or facts averred, that is the way the law has been interpreted in practice.
The consequence of the restriction is simply that, rather than ask an accused person a straightforward question along the lines that the noble and learned Lord
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indicated as to whether he did something, was present at the scene of a crime, or was in possession of a particular weapon, the procurator fiscal must frame such questions in a negative form, for example, by asking the accused whether he denies exactly the same accusations or facts.
While that need not prevent a skilled prosecutor asking the questions he considers important, it does result in those questions being asked in a stilted and unnatural form which is likely to be more difficult for an accused person to understand, and even more difficult for a jury to understand when it considers the transcript of the examination at a subsequent trial. The change proposed in this clause is simply designed to make the proceedings more straightforward and intelligible. I emphasise that there is nothing sinister or extending in the provisions that we bring forward.
There are two things which this clause does not do, contrary to what has been suggested. First, it does not require the accused to break his silence if he wishes not to, or to incriminate himself. If the accused chooses not to answer questions he may do so, as very many accused persons do now. If he chooses to answer, his answers need not be any more incriminating than they would be under the current law. After all, he may refuse to admit, which may be less incriminating than a failure to deny.
Secondly, it will not enable procurators fiscal to engage in cross-examination or to attempt to drag confessions out of the accused. Subsection (2) of Section 20A prohibits the procurator fiscal from asking leading questions, reiterating questions the accused has refused to answer, or challenging the truth of what the accused has already said. Those restrictions will continue to apply to all questioning by the procurator fiscal as will the duty placed on the sheriff to ensure that all questions are fairly put to, and understood by, the accused.
On the last point, I believe it should be possible for the sheriff to discharge his duty rather more easily. It will be easier for the accused to understand what is going on.
I have taken a moment or two to explain this matter because there has been serious misunderstanding of what is proposed. I hope that as a result of this short debate on the clause it will now be understood exactly what limited amendment is proposed.
8.15 p.m.
Lord Macaulay of Bragar: I am grateful to the Minister for his explanation. In relation to judicial examination, part of the problem within legal circles in Scotland is the use of the word "eliciting" in relation to admission. That can be phrased whichever way you like subject to the provisions of the Act as it presently stands. But to the layman it must mean that the procurator fiscal will, to put it in colloquial terms, "have a go" at the accused within the limits of the Act to see whether he will confess to what he has been charged with. That is a very dangerous inroad into the fairness of the criminal justice system in Scotland. It merits further consideration by the Government, perhaps taking account of what the various groups involved in the administration of criminal justice in Scotland have to say about it.

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It is very difficult to look at this clause and say that it is not sinister. It certainly carries a sinister implication. If it will not make much difference to the law as it stands, why are the Government bothering with it? I know that it has been explained by the Minister and no doubt it will be read in the quarters that are involved in the administration of criminal justice in Scotland. Speaking for myself, with respect I am not convinced by the justification put forward for this step in the administration of criminal justice in Scotland.
I shall read with interest—I shall no doubt be regaled about it by various people—what has been said in the Chamber tonight.
Clause 10 agreed to.
Lord McCluskeymoved Amendment No. 19:
After Clause 10, insert the following new clause:
("Duty of prosecutor to investigate lines of defence
.—(1) In section 20A of the 1975 Act, after subsection (3), there shall be inserted—
"(3A) The accused, before being asked any question by the prosecutor, shall be told by the sheriff that, if he answers any question in such a way as to disclose a line of defence (as for example alibi, incrimination, or the consent of an alleged victim), being a line of defence which is capable of being investigated at that time, the prosecutor will then be under a legal duty to investigate that line of defence thoroughly and as soon as is reasonably practicable".
(2) After subsection (4) there shall be inserted—
"(4A) After any examination under this section has been completed it shall be the duty of the prosecutor, as soon as is reasonably practicable, personally or through his officers or officers of police, to investigate thoroughly any line of defence which is capable of being investigated at that time, provided it is a line of defence which has been disclosed by the accused in answer to any questions put to him by the prosecutor, and it shall be the duty of the prosecutor to disclose the full results of that investigation to the accused not later than the date of service of the indictment under section 70 of this Act.".").
The noble and learned Lord said: Section 20A which we have just been discussing was inserted by Section 6(2) of the Criminal Justice (Scotland) Act 1980. It allowed questioning by the procurator fiscal at judicial examination. It included certain provisos. I refer in particular to the proviso contained in Section 20A(1) (a):
"Provided that the particular aims of the line of questions under this paragraph shall be to determine:
(1) whether any account which the accused can give ostensibly discloses a category of defence (as for example alibi, incrimination or the consent of an alleged victim)".
It goes on to say:
"and the nature and particulars of that offence".
So, if the procurator fiscal asks an accused person a question based upon the charge in the petition, which asserts that the accused was in Sauchiehall Street on a particular date at a particular time, and the accused replies, "I am perfectly willing to answer that question, I was not there", the procurator fiscal is then entitled to ask him, "Well, if you weren't there, would you be willing to tell us where you were?". He might also add, "Would you be willing to tell us who you were with?" and so on. In other words, he is entitled to ask the nature and particulars of a defence alibi. That seems to me to be entirely sensible and it has been accepted in practice since the Act came into force in 1981.
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However, if one now looks at the source of this particular provision—namely, the Thomson Committee report—one finds that it is dealt with on page 43 in paragraph 8.14. That paragraph is concerned with the objects of judicial examination. It says:
"We consider that there are three objects … a. to afford to an accused at the earliest possible stage in the judicial process an opportunity of stating his position as regards the charge against him".
So it was conceived by Thomson in favour of the accused person. I continue from that paragraph, reading in short:
"There are matters, such as an embarrassing alibi, which an accused could disclose at this stage in the knowledge that, if investigation of the alibi satisfied the procurator fiscal of his innocence, he would be saved from any public disclosure of his private affairs".
I shall not read the rest of the paragraph; but the essence of the matter there and at paragraph 8.18, which is in similar vein, is to the effect that the accused who chooses to say, "I have an alibi" and gives the details of it can expect the procurator fiscal to investigate that alibi. If he gives a sound alibi, that is the time to do it, early on. The procurator fiscal has the resources to do it at that particular stage.
I have now looked at what happens in practice. I fear that in practice that ideal is not always followed. The noble and learned Lord the Lord Advocate will recall one case about which I wrote to him. For a number of reasons I shall not go into the details of that case. In essence, an accused person, having given the police at the time of his arrest a very limited account of his alibi, three days later at judicial examination gave a rather more detailed account. For administrative reasons, or by some kind of oversight, the second and much more detailed account was not investigated. In the event, he came to trial with a large number of alibi witnesses. I presided at the trial and so I can say that the jury, which took four minutes to acquit him, was thoroughly convinced of the soundness of the alibi that he advanced in respect of that particular charge.
I am concerned to bring the statute into line with the intentions which were expressed by Thomson and indeed by Ministers in this House in the debates on the 1980 Bill. I am sure that the noble and learned Lord the Lord Advocate, in the light of his experience in general and of the occasional case that may go wrong, will not find that a difficult matter to deal with in principle.
So far as concerns the details of it, I put forward two aspects: first, that the sheriff will tell the accused of the duty which the later subsection places upon the prosecutor; namely, a duty to examine the background of the alleged special defence of incrimination or alibi. It is an encouragement to the accused for the sheriff to say to him, "Look, they are going to ask you questions. You do not have to answer them. But if you have an alibi or some such defence, tell us. The procurator fiscal has a statutory duty to investigate it". That is an encouragement to people at an early stage to come out with their account of where they have been or any other account that they choose to put before the court. I accept the whole point that was made earlier; namely, that an accused person does not know in great detail with what he is charged or what the evidence is against him. But

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he knows if he was not there; and if he was there and saw the offence committed by somebody else or some such matter he can say, "Look, I don't have the resources to investigate this, but you do. This is the story; you investigate it." I beg to move.
Lord Rodger of Earlsferry: I am very grateful to the noble and learned Lord for raising the matter in this amendment. The thrust of his amendment is entirely acceptable to the Government. Indeed, we are very grateful to him for bringing it forward. I can be brief in reply because the noble and learned Lord explained the genesis of the judicial examination procedure and pointed out that it was designed, for example, to elicit alibis or give an opportunity to the accused to put forward an alibi. Obviously, it must have been envisaged that that should be investigated. For my part, I accept that that is entirely right.
The noble and learned Lord mentioned a particular case—and there are probably others—where what I would regard as the appropriate duty has not been fulfilled. It is entirely helpful in working out the system of judicial examination that the quid pro quo, so to speak, on the part of the procurator fiscal should be put on the face of the statute. So I am entirely happy in following the general thrust of the amendment. It seems to me that, as the noble and learned Lord envisaged, it might very well be a provision which would show to the accused person the advantage of taking that opportunity to put forward at an early stage an alibi which could be investigated and as a result the charge might be withdrawn. That, of course, would not always be so.
I do not feel able to accept the full detail of the provision as regards the duty which is envisaged on the part of the prosecutor to disclose in all cases the full results of the investigation. I should want to look a little more closely at that matter. I fully accept that, if the investigation discovers evidence or material that may be of assistance to the accused, the procurator fiscal should consider himself—he should already do so—under a duty to make such evidence or material known to the defence. Procurators fiscal are given general instructions to that effect.
There may be cases where no evidence is found or where in revealing a particular matter—for example, the fact that supposed witnesses in support of the alibi had indicated that they had been put under pressure by the accused—danger to witnesses might result if the full nature of the investigation were revealed. I feel that a blanket duty of this kind would not be acceptable.
However, as I said, I am entirely happy with the general thrust. If the noble and learned Lord is prepared to withdraw his amendment on this occasion I shall undertake in due course to bring forward an amendment along similar lines when we have had a further chance to examine the matter.
Lord McCluskey: I am happy to accept the reply of the Lord Advocate on that point. I am conscious of the fact that when I put in the final part of the sentence,
"it shall be the duty of the prosecutor to disclose the full results",
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I was going too far. In Scotland we do not want to end up with the situation where "statutory" means that a solemn duty is laid upon the Lord Advocate or his staff to disclose everything that an investigation reveals.
It is difficult to draw a line, particularly in a statute. Where we can avoid the need for that in Scotland lies in the fact that it is the tradition for the Lord Advocate, the Crown Office, to act as Ministers of justice. I believe that we will be able to found upon that. The Lord Advocate may consider couching his amendment in terms of a duty on the procurator fiscal to disclose such results of the investigation as appear to him to be reasonable and proper in all the circumstances. I have no doubt that some such formulation would meet my concerns. I am happy that the Government are willing in principle to accept the point and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord Macaulay of Bragarmoved Amendment No. 20:
Before Clause 11, insert the following new clause:
("Video recording of police Interviews with suspects
.—(1) In any solemn criminal proceedings there shall, where practicable, be available to the defence and to the prosecution, a video record of the police interviews with the accused.
(2) The video record shall be—

(a) recorded on standard equipment approved for the purpose; and

(b) sealed by two officers upon completion of the interviews and signed by the same two officers who declare that the video record has not been damaged or tampered with.").

The noble Lord said: Amendment No. 20 seeks to bring into focus the question of the tape recording of suspects or accused persons in police stations. It is tabled bearing in mind that in 1988 an experiment began on tape recording—not video recording—in police stations. The Criminal Justice Act 1980 allowed the police to detain people for up to six hours while they were being questioned. However, the second report of the Thomson Committee said that interrogation of suspects in police stations must be recorded on tape. I do not know how far that experiment has gone. The last figures with which I was provided were that in 1991–92 the procurator fiscal received 15,060 tapes from the police. That is a mere fraction of the reported cases, which numbered nearly 900,000 in 1991, and it was supposed to be a rolling programme of recording interviews of suspects in police custody.
The then Secretary of State for Scotland, Malcolm Rifkind, said at that time in 1980,
"The Government's view quite firmly and quite clearly is that, if the tape recording experiments which are presently being conducted in Dundee and Falkirk are shown to produce no insuperable difficulties, it is our firm intention to implement these proposals at the earliest opportunity".
He went on to say that he did not see the question of resources as being of any significance in implementing the question of tape recording. That was in 1980 and refers to sound tape recording. The amendment seeks to obtain information from the Government as to what facilities are available in police stations throughout

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Scotland to interview people on video tape in serious cases. I am informed that out of 569 police stations in Scotland—on the question of sound tape recording pure and simple—only 129 stations actually possessed the facility to record an interview between the police and the suspect.
Amendment No. 20 is in the nature of a probing amendment to ask the Government—I do not expect an instant answer this evening but certainly between now and the Report stage of the Bill—to inform the Chamber of the state of play in relation to the question of facilities, first, for sound tape recording and, secondly, for video tape recording within police stations in Scotland. I beg to move.
The Earl of Balfour: If the Government are seriously considering this amendment, perhaps I can once again make a small appeal. I ask that clauses covering roughly the same subject be put together. Amendment No. 20, introducing this clause, should perhaps be attached to Clause 20, which deals with video surveillance and recordings.
While I am on my feet perhaps I can ask whether, with today's advances in technology, in the case of a police interview about which the noble Lord, Lord Macaulay, spoke, we are necessarily using the right word. I may be entirely wrong, but there is also the question of cassettes with audio recordings as well as video recordings, which is vision recording. That should perhaps be considered in the legislation. I know that I am on dangerous ground and I am not awfully well up on these subjects. However, that is what I wanted to say.
Lord Rodger of Earlsferry: To whichever matter one attaches Amendment No. 20, it is clearly a probing amendment. Though I cannot give the noble Lord the detail for which he asks in relation to the numbers of police stations and so forth, I am happy to write to him between now and Report. However, Members of the Committee who are involved in criminal trials will be aware, certainly in solemn procedure, that it has become very much the case that tape recordings are available of police interviews. They are extremely helpful in eliminating from trials much sterile discussion which used to take place as to what was or was not said at the time of an interview. That has been generally beneficial to the conduct of prosecutions and the interests of justice in Scotland.
It is of course the case that not all police stations possess such recording facilities; it is not necessary that all should. However, it is necessary that equipment should be available in various areas of the country where it can be used conveniently.
With regard to video recording, in one sense that seems to be the logical development, and the position is that technology has now advanced sufficiently to allow for interviews to be recorded on video cassettes. They provide a further benefit in that they may portray the demeanour of the suspect and the interviewers. To that extent they allow a clearer assessment to be made of the fairness of the interviews.
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The use of video recording equipment at such interviews is a recent development. A pilot exercise was carried out in one Scottish police force over a period of six months. The conclusions from that exercise—it was a limited one—suggested that video recording provided additional safeguards, both to the suspect and to the police. It also had one further benefit; that is, it helped senior officers to see how the interviewers conducted the questioning and so forth, enabling them to help improve standards in that way. Where video recordings have been made, and where they are to be used, they have been made available to the defence and the prosecution.
As far as we can see, there is no need to put any arrangements on a statutory basis. We think that we should examine further, in the light of the experience so far, what the benefits would be of the wider use of video recording. For that reason we envisage that we may wish to commission a wider investigation than has been possible so far to assess exactly the value of the benefits obtained from the use of video recording.
I therefore say to the noble Lord that I shall write to him with the details. I can assure him that the matter of the possible introduction of video recording is one which is being considered.
Lord Macaulay of Bragar: I am grateful to the Minister for that reply and I look forward to receiving his letter with the full details. I shall not pursue the question of which area the exercise was carried out in because I do not think that that would be productive. But no doubt some statistics will be provided to those interested in that aspect of the law. One of the problems which we all recognise is that, whether in sound or in vision, there will always be the complaint that the suspect was primed to do what he did on tape, either visually or otherwise. But that is a matter for juries to determine or judges sitting alone. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Agreement of evidence]:
8.45 p.m.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 21, it may be for the convenience of the Committee to know that, if this amendment is agreed to, I cannot call Amendments Nos. 22 to 25.
Lord Rodger of Earlsferrymoved Amendment No. 21:
Page 6, line 36, leave out from ("(1)") to ("and") in line 39 and insert ("subject to subsection (1A) below, the prosecutor and the accused shall each identify any facts which are facts—

(a) which he would, apart from this section, be seeking to prove;

(b) which he considers unlikely to be disputed by the other party; and

(c) in proof of which he does not wish to lead oral evidence,").

The noble and learned Lord said: There are four government amendments to the clause, Amendments Nos. 21, 26, 28 and 29. The creation of the new duty envisaged in terms of Clause 11 for agreement on evidence is not intended to have the effect of preventing

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important oral evidence—for example, that of the victim—from being heard. Amendments Nos. 21 and 28 are designed to make that matter explicit.
Amendments Nos. 26 and 29 make it clear that each party is under a duty to take reasonable steps to agree the facts that one party identified. I beg to move.
Lord McCluskey: In the light of the information that, if Amendment No. 21 is agreed to, we cannot consider certain other amendments, I shall address the Committee on Amendments Nos. 22, 23, 24 and 25. These are fairly small amendments but, looking at the Bill itself, the Committee will appreciate that the new Section 84A of the 1975 Act lays upon the prosecutor and the accused a duty each to,
"identify any facts which he would otherwise be seeking to prove which he considers are unlikely to be disputed by the other party".
There are three features of that provision which I should like to pick up on. First, the duty imposed should be imposed upon the prosecutor but not upon an accused person. It is a possible infringement of the right of silence to impose upon an accused person a solemn duty to identify facts which he is seeking to prove and which he considers are unlikely to be disputed. It is not a serious inroad but nonetheless a real one.
I also note that, although that duty is created in these peremptory terms, no sanction is imposed for breach of it. Perhaps the Lord Advocate can tell me in terms what sanction will be imposed on an accused person who is called upon to identify a fact which he seeks to prove and which he thinks is unlikely to be disputed. I do not follow that. It may be that I have not properly read Section 84 of the 1975 Act. My Amendment No. 22 seeks to remove the obligation on an accused person to seek to identify such facts. I shall refer to that later on when I move the new clause which I suggest should take the place of this provision.
The background to this is the Scottish Law Commission report to which I have already referred. I draw attention in particular to paragraph 4.27 of that document. Again, it is unnecessary to go into the latter in great detail, but the Scottish Law Commission considered the very point as to whether the duty should be imposed upon an accused person. Paragraph 4.27 states:
"We considered whether it should be possible for the defence to operate the new procedure"—
the new procedure being identification of facts for challenge or not—
"and decided that it should not for two reasons. First, there are advantages which we have mentioned in placing the initiative on the prosecution. Secondly, in a case where the defence wished to propose that certain facts or documents should not be disputed at the trial, there should be no difficulty in discussing with the prosecutor the framing of a minute of admission".
That passage recognises the reality that if the defence want to agree something, they will take the initiative and come forward and say, "Look, we do not want to stop these witnesses going on holiday. Here are six of them who all say this. Would you agree to that?" The Crown
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would investigate and, unless there were some strong reason, would agree. The passage goes on to recommend in paragraph 4.28:
"We therefore recommend that responsibility for initiating the procedure described in the following recommendation should lie with the prosecutor".
The general thrust of this is that the prosecutor should take the initiative.
In paragraphs 4.17, 4.20 and 4.21 the same document deals with the possible infringement of the right of silence. I mention that because the Law Commission sees it in the context of the European Convention on Human Rights. From reading paragraph 4.21, it is clear that careful thought and extensive consultation would be required before any reforms of this kind could be recommended for Scotland. In effect, what the Scottish Law Commission is considering there is the role of the judge as a kind of intervener in a sense—stepping in and saying, "Tell me, what are you agreeing here?". In substance, this clause makes the judge an intervener. I have no objection to that in principle, but the clause lays upon the accused the duty to identify the facts with the word "shall".
The other point is a small one, but it is one which I would like the Government to consider. When the prosecutor, or if the Bill remains in its present form, the prosecutor or the accused, comes forward, he is to identify any facts,
"which he would otherwise be seeking to prove which he considers are unlikely to be disputed".
Very often the prosecutor will know and the defence will know what is going to be disputed. There is a good deal of merit in the prosecutor in particular having in his mind what we in Scottish legal practice would call a note of line of evidence. He would say, "What do I have to prove in this case?" He has to prove point A, locus; point B, time; point C, action; point D, result; and so on. Some of those will be disputed and some may not be. Therefore, he should not be confined to putting into the draft document on the statement of facts those which he thinks are unlikely to be disputed. He should be free and, indeed, encouraged to put forward others as well. Therefore, Amendment No. 24—and there is another amendment elsewhere—is to that effect.
Amendment No. 25 seeks to delete the word "the" and substitute the word "any". The point is that there may be more than two parties—a prosecutor and an accused person. There may be more than one accused. The appropriate wording would therefore be "any" rather than "the". That is a point of detail and there is no need to do any more than to consider that in future.
Accordingly, in substance, all I want to happen here is that the prosecutor shall consider what he has to prove. He states these matters in an articulate fashion with discreet statements of fact. He puts them to the defence and they are free to agree them or not. That is so simple that it would tend to work in practice. For those reasons, if I get that far, I shall move the amendments on that basis.
Lord Macaulay of Bragar: I shall not detain the Committee for any length of time. This clause appears to be a statement of intent rather than having any real

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teeth or bite to it. It is to take all reasonable steps to agree uncontroversial evidence. As the noble and learned Lord has just said, what happens when an accused does not? If he is legally represented and he tells his lawyer that he is not prepared to agree to anything, what will be made of that in the course of the trial? For example, if in the course of the trial he says, "Yes, that is true" is the prosecutor able to say to him, "Why did you not agree that when you were asked by the prosecutor between the service of the indictment and the swearing of the jury?" That is the usual line of cross-examination. I merely ask that seeking information and not as a matter of criticism.
Lord Rodger of Earlsferry: I start by saying that the noble and learned Lord, Lord McCluskey, moved Amendment No. 25. I am happy to accept that in principle and we shall need to look at the drafting of it. He has identified a point which is correct in connection with the situation where there is more than one accused.
Lord McCluskey: The noble and learned Lord will appreciate that I have not moved Amendment No. 25 and I shall be unable to do so if he persists with Amendment No. 21. As long as the noble and learned Lord understands the point, as he plainly does, that is good enough for me.
Lord Rodger of Earlsferry: That is on the basis that the noble and learned Lord's amendment has drawn attention to a matter which would require to be dealt with. As regards the wider thrust of the noble and learned Lord's remarks, we have considered carefully the question, especially in the light of the report of the Scottish Law Commission, whether the duty should be one which is exclusively on the prosecution.
We came to the view that in reality, whatever the exact technical matter as to whether there was a breach which the noble and learned Lord described as not a serious inroad into any right of silence, there was much to be said for a duty of this kind on the defence. The noble and learned Lord and also the noble Lord, Lord Macaulay of Bragar, asked what the sanction was. There is clearly no sanction of the kind which was envisaged as being raised in the course of a trial in that way.
I would not describe it as a sanction, but where it bites, as the Committee can see from Clause 12, there is introduced an additional Section 75A which deals with the first diet. Section 75A(1) (b) says,
"the extent to which the prosecutor and the accused have complied with the duty under section 84A(1) of this Act".
It is a duty which can be focused at a hearing of this kind.
It seems to me that there is advantage from the defence point of view where they exercise the part which refers to them. Where they identify something which they wish to prove, if they think it is unlikely that the prosecution would dispute it, they should then be able to invoke the duty which is then put on the prosecution to take all reasonable steps to agree with them. Although I shall be the last person to say that the prosecution system in Scotland does not take all possible steps to act properly and to agree things where that is
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possible, something may be said for having a duty of this kind put plainly on the face of the statute so that it is known that that is what has to be done in that circumstance. Therefore, it seems to us that the provision here is balanced.
The noble and learned Lord, Lord McCluskey, while opposed to the general tenor of these provisions as far as the defence is concerned, would seek to widen them a little by changing them from matters which the prosecutor or the defence consider unlikely to be disputed although they may be disputed.
That is a matter for judgment because the whole provision, which applies generally to these matters, for seeking agreement requires a certain expenditure of time and effort. One has to judge whether or not it is likely that that time and effort used in seeking agreement is going to prove fruitful. There is nothing against a prosecutor or the defence seeking to get wider agreement if they can. Nonetheless, in so far as this matter is imposing a duty, it seems to us that it is appropriate that that duty should be imposed. The obligation to take these steps should be imposed, but only where it is thought unlikely that the matters will be disputed. If one goes wider than that, there is the risk that people will be put under a duty which they may then be tempted not to fulfil. They will be put under a duty which is unlikely to be fruitful as a result.
Overall, I say to the Committee that these are matters where we believe the balance has been correctly struck and that they will have a beneficial effect in leading to a situation where people are not brought to court unnecessarily in order to give evidence. Anyone who has been a law officer knows that one of the matters on which one receives letters is where people are brought to court and feel that that has been unnecessary. I do not believe that one can envisage that necessarily a great deal of evidence will be agreed, but there are people—for example, householders—who are brought along to speak to the fact that their house has been burgled.
The experience so far of the use of preliminary diets which have been taking place in their new form for the better part of a year, indicates that in a great many cases we are getting agreement on such matters and, likewise, where cars have been stolen, and so on. That is all to the good. These are matters which we believe are unlikely to be disputed. It is because of that experience that the test which we are putting forward is an acceptable one.
Lord McCluskey: I hope that the noble and learned Lord will not conclude that he has no more thinking to do on this matter. I share with him the objective which he has mentioned. For obvious reasons, one wants to reduce the unnecessary burden of bringing witnesses to court. The question is this: what is the best way to do it? My judgment is different from his. The judgment of the Scottish Law Commission was also different from his on this particular matter. It would be prudent to think about it again.
What concerns me is that when one looks at the wording as far as the prosecutor is concerned, he has a duty to do something if he considers the point is unlikely to be disputed. Therefore, in a sense, there could not be

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a sanction there because one would have to test his honesty if he says, "I consider that it is unlikely to be disputed". It may be that the imposition of the duty is to impose an extremely light burden on the prosecutor. That is not what the Scottish Law Commission or I envisaged in the amendments proposed to an earlier Bill in this House.
My second point is that in many cases—I am thinking of a great many cases where the matter is reported to the fiscal by the police—he does not have the slightest idea of what the accused will or will not dispute. The accused has made no reply to the police, the police have collected certain bits of evidence and have no idea either. As a result the duty does not arise.
My third point arises because of something in the clause that was mentioned in passing by the noble Lord, Lord Macaulay. It ties in particularly with Clause 12, which we have not yet reached, but which states:
"the court shall ascertain whether the case is likely to proceed to trial on the date assigned … and … the state of preparation of the prosecutor and of the accused with respect to their cases".
If a defence solicitor who is falling under the duty imposed by the clause that we are now discussing then appears before the sheriff in terms of Clause 12 and declines to co-operate, is he going to be reported to the Law Society as in breach of some duty that he owes towards the court which has been imposed upon him by an Act of Parliament? I wonder whether that point has really been thought through and whether the advice of the Law Society of Scotland has been sought on those provisions and, if so, what it is. Perhaps we can return to this point on another occasion when the Lord Advocate has thought it through a little further.
Lord Rodger of Earlsferry: I commend Amendment No. 21 to the Committee.
On Question, amendment agreed to.
[Amendments Nos. 22 to 25 not moved.]
9 p.m.
Lord Rodger of Earlsferrymoved Amendment No. 26:
Page 6, line 42, leave out ("agree them") and insert ("secure the other party's agreement to them; and the other party shall take all reasonable steps to reach such agreement.
(1A) Subsection (1) above shall not apply in relation to proceedings against an accused who is not legally represented.").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Macaulay of Bragarmoved Amendment No. 27:
Page 7, line 4, at end insert:
("() It shall be the duty of the prosecutor to make available to the accused all material relating to the charge or charges against the accused in the possession of the prosecutor; and such material shall include all statements, reports and productions in the possession of the prosecutor whether he intends to found upon them in the prosecution of the accused or not.").
The noble Lord said: This is the second time that this amendment has appeared in the House. It was put before your Lordships in one of our previous debates on criminal proceedings in 1993. It is interesting to note
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that the Government are anxious to secure as much agreement as possible as early as possible between the accused and the prosecutor. It is not reasonable to ask accused persons to agree material unless they know what the evidence in the case is. The purpose of the amendment is to specify that,
"It shall be the duty of the prosecutor to make available to the accused all material relating to the charge or charges against the accused in the possession of the prosecutor … whether he intends to found upon them"
in the course of a prosecution. Everybody shakes their heads and says that that will result in the production of lorry-loads of material. To that I say, "So what?" If the state is launching a prosecution against an individual, that individual is just as entitled to the information upon which the charge may be based as the prosecutor. It is for the prosecutor to decide what use he wants to make of it. Equally, the defence should be allowed to see everything that has been recovered in the course of an inquiry so that it can look at the evidence that will be presented to the court to see whether the prosecutor has in his possession matters that are of value to the defence, but in which the prosecution is not interested. Unfortunately, in the past two years there have been cases in which the ground for appeal was that material in the possession of the Crown was not disclosed to the defence.
One of the main objectives behind the amendment is to ensure that such an appeal cannot be launched at a later stage in the proceedings—whether that be one year, 10 years or 20 years after the conviction. The defence should not be able to say to the Court of Appeal that the Crown had such material in its possession but did not tell the defence about it. Whether the Crown deliberately withheld the evidence is neither here not there; the real issue is that any evidence is evidence in the broad sense of the word and it matters not to whom it relates. Therefore, the prosecutor and the defence should have equal access to all evidence and an equal opportunity to use the material that is in the possession of the prosecutor for the purposes of the trial.
I believe that it was a Government Minister in the 1980s who said, "You cannot put a price on justice", and when the party in government changes, we shall have to look at that point. Those words may be true, but you cannot put a price on facts. If certain facts have to be determined in a case, they should be determined in the light of all the evidence that is available as a result of the state's investigation and should not be withheld from the defence for any reason whatsoever apart from where an immunity certificate is involved. However, I shall not go into that now because it is a delicate area and we have enough to contend with in this Bill without that. Accordingly, I beg to move.
Lord Rodger of Earlsferry: I cannot accept the amendment. As the noble Lord will be aware, as far as prosecutors in Scotland are concerned, the overriding principle is, and has always been, that the Crown must always act in the interests of justice. As part of that general approach, all members of the procurator fiscal service are reminded that they must disclose to the defence any information which supports the defence case even though it may be damaging to the Crown's

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case. They are also told that the overall aim is to try to ensure that the true facts of any case are laid before the judge or the jury. That is the fundamental starting point.
Many members of the Committee will be aware that there have been cases in England and Wales in recent years in which critical issues in relation to disclosure have arisen and where rather wide-ranging doctrines of disclosure have been laid down. I do not comment on the position in England and Wales except to say that it is common knowledge that that has proved to be a particularly difficult and burdensome matter for the police. In addition, it is not always clear that the best way to advance the interests of justice is for the defence to be, in effect, snowed under with documents.
That is an important point to remember in the context of a system such as ours which prides itself, and rightly prides itself, on the idea of getting people to trial within 110 days. We are dealing with a very different system. We are also dealing with a different system in that it is most important to remember that, whereas in England and Wales the defence does not have the right to investigate a case by going and precognoscing the witnesses for the Crown, that has always been the practice in Scotland. The defence can investigate the case itself. The defence is therefore in a position to see the witnesses, to deduce what is the case, and to investigate it on its own behalf.
The background in Scotland is different from that in England in that situation, and a sweeping measure of this kind does not seem to me to be necessary. For example if the amendment is taken literally, then all material relating to the charge or charges, however irrelevant or obviously ill-founded it might be, would have to be made available. All sorts of pieces of paper would have to be made available. In such a situation, agents and counsel would rightly feel under a duty to go through all the material. That would lead inevitably to the kind of delays which are already happening in England because of the wide disclosure system. The basic approach of the amendment is misconceived. It does not address the issues as they arise in Scotland, and I cannot accept it.
Lord McCluskey: I support the Lord Advocate's position in this matter. At an earlier stage, in a slightly different context, I explained that I retained my faith in the Lord Advocate's Office as being a Ministry of Justice. That is important, and I was especially interested when a case came before me recently which illustrated a further difference between England and Scotland in that regard. In that case counsel came forward with a specification of documents, essentially to recover everything that the Crown had obtained in the course of the investigation. I refused to allow that to be granted. In the course of the discussion, the Crown declined to support a dictum by another judge in another case in which the court seemed to be saying that the Crown had a right to conceal matters from the defence. That may be going too far, but that is how it was understood in the profession.
The Crown still has its heart in the right place in that regard. The word "heart" comes to mind because I believe that the English case related to Judith Hart. Was
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it Judith Hart? I cannot remember. The English case was the one that horrified me: the idea that tea chests full of documents had to be delivered to the defence at enormous public cost -money being diverted from other social and legal services—then the tea chests had to be analysed just in case there was something there.
We are fortunate in Scotland in that we have speedy trials, and we have a Crown Office that does the job thoroughly. I am happy to support the position of the Lord Advocate in this matter.
Lord Macaulay of Bragar: I was interested to hear the contributions made by the noble and learned Lord the Lord Advocate and the noble and learned Lord, Lord McCluskey. I did not find them convincing. I am not interested in whether the Lord Advocate—I use the term broadly, not with reference to the noble and learned Lord the Lord Advocate himself—or the Crown Office think that something discovered in the course of an inquiry is relevant or not, or whether it is ill founded. That is for the defence to decide. That is why the amendment is carefully worded. It does not envisage what the noble and learned Lord described: that a solicitor will come along and pick up a couple of tea chests full of copy productions, take them along to his office and spend a couple of weeks going through them.
The only obligation on the prosecutor is to make such material available. I can clearly remember a fraud case in which I was involved. It was only after a great battle with the Crown Office that we managed to obtain access to a number of papers and files. The Crown Office had them but we could not see them. I cannot remember whether seeing them was of any advantage—it may not have been. However, a great deal of time was taken up in trying to persuade the Crown Office at least to let us see the files. Only after a long battle were we allowed access to the documents. I cannot understand the objection that is raised.
No one will be snowed under with documents. We ask only that the cloud of secrecy is removed from criminal investigations in Scotland. The accused or his representatives should be allowed to see the evidence and the background to it just as much as the prosecutor. After all, the state brings the prosecution and there is no reason why the individual, who is having a case brought against him by the state, should not have access to state documents.
I understand that in some continental countries—for instance, in Sweden—one can walk down to the procurator's office and ask to see the file on a case, even that in respect of a murder. One can read the statements and do whatever one likes. At one time, the press were free to use the statements in the procurator's file. I do not encourage that, but perhaps the amendment will encourage openness between the Crown and the accused and will encourage the defence to agree the matters to which the Bill and earlier amendments relate.
Obviously I shall get nowhere with the amendment tonight. I shall note with interest what the noble and learned Lord said and in the meantime I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.
Lord Rodger of Earlsferrymoved Amendment No. 28:
Page 7, line 7, leave out from ("(1)") to (" and") in line 10 and insert ("Subject to subsection (1A) below, the prosecutor and the accused shall each identify any facts which are facts—

(a) which he would, apart from this section, be seeking to prove;

(b) which he considers unlikely to be disputed by the other party; and

(c) in proof of which he does not wish to lead oral evidence,").

The noble and learned Lord said: I have already spoken to Amendments Nos. 28 and 29. I beg to move.
On Question, amendment agreed to.
Lord Rodger of Earlsferrymoved Amendment No. 29:
Page 7, line 13, leave out ("agree them") and insert ("secure the other party's agreement to them; and the other party shall take all reasonable steps to reach such agreement.
(1A) Subsection (1) above shall not apply in relation to proceedings against an accused who is not legally represented.").
On Question, amendment agreed to.
9.15 p.m.
Lord McCluskeymoved Amendment No. 30:
Leave out Clause 11 and insert the following new clause:
("Facts not to be disputed at trial
.—(1) This section applies where in any criminal proceedings (whether they are proceedings on indictment or summary proceedings)—

(a) it appears to the prosecutor that there are facts which are or may be uncontroversial; and

(b) the prosecutor has—

(i) specified those facts, in a statement signed by him or on his behalf, as facts which, unless they are challenged under this section, shall be deemed to have been conclusively proved under subsection (2) below; and

(ii) served a copy of the statement on the accused not less than 14 days before the trial.

(2) Where this section applies, then, unless the accused or, if there are two or more co-accused, at least one of the accused has served notice on the prosecutor in accordance with subsection (3) below that he challenges any matter contained in the statement, the facts so far as unchallenged shall be deemed to have been conclusively proved.
(3) A notice under subsection (2) above shall be served not less than 6 days before the trial or by such later time as the court may in special circumstances allow, being not later than the time when the trial commences.
(4) Subsection (2) above shall not preclude a party from leading evidence of circumstances relevant to, or other evidence in explanation of, any matter contained in the statement concerned.
(5) Notwithstanding the foregoing provisions of this section, the presiding judge—

(a) may, on the motion of any party made within the relevant period, in special circumstances; or

(b) shall, on the joint motion of the parties made within the relevant period,

direct that the service of a copy of a statement on the accused under this section shall be of no effect in relation to such matter contained in the statement as is specified in the direction.
(6) In subsection (5) above "the relevant period" means the period beginning with the commencement of the trial and ending with the commencement, in the case of—
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(a) proceedings on indictment, of the speeches to the jury;

(b) summary proceedings, of the address by the prosecutor to the judge on the evidence.

(7) For the purposes of subsections (3) and (6) above, a trial commences, in the case of—

(a) proceedings on indictment, when the oath is administered to the jury;

(b) summary proceedings, when the first witness is sworn.

(8) Where the accused has served a notice under this section or, if there are two or more co-accused, at least one of the accused has served such a notice, then, the fact of the service of the copy of the statement under subsection (1) above so far as it relates to the matter challenged, or of the service of that notice, shall not be referred to, if the proceedings are—

(a) on indictment, in the presence of the jury before the verdict is returned; or

(b) summary proceedings, before the judge is satisfied that the charge concerned is proved.

(9) A statement mentioned in subsection (1) above shall be in such form as may be prescribed by Act of Adjournal.
(10) A copy of a statement required to be served on the accused, or a notice required to be served on the prosecutor, under this section may either be personally served on the accused or the prosecutor (as the case may be) or sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such copy or notice, together with, where appropriate, a post office receipt for the relevant registered or recorded delivery letter shall be sufficient evidence of such service.
(11) This section shall not apply in relation to proceedings commenced before the coming into force of this section; and for the purposes of this subsection solemn proceedings are commenced when the indictment is served.").
The noble and learned Lord said: I can deal with the amendment briefly, although it is the longest in the Marshalled List, because as they say in California, "You don't have to be a rocket scientist to work out where this came from". It is lifted almost straight from the proposed Clause 7 of the Criminal Evidence Bill contained in the Scottish Law Commission Report. I made only one important amendment. In subsection (1) (a) of the proposed new clause I have added the words, "or may be" in order to make the point that, under the heading "Facts not to be disputed at the trial", if it appears to the prosecutor that there are facts which are or may be uncontroversial the prosecutor has this obligation.
I need not deal with the amendment at great length because I have already dealt with the general matters of principle. However, in order to assist the noble and learned Lord the Lord Advocate, the Minister, and their respective staffs—I believe that this falls within the jurisdiction of the Lord Advocate—I draw attention to what I said in respect of the Law Reform (Miscellaneous Provisions) (Scotland) Bill on 17th May, 1990—reported at col. 425 of the Official Report. I had intended to refer to paragraphs 4.1 to 4.26 of the Scottish Law Commission Report. However, we also have paragraph 36.04 of the Thomson Committee report, which is interesting to note. The question at issue was who should have the responsibility for taking initiative in reaching agreement. The conclusion was:
"We therefore recommend that the initiative for reaching agreement on these matters should lie with the Crown".
I wish to repeat what I have said many times; that in practical terms the Crown has an experienced and competent fiscal service. In Scotland it is served by a

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diligent police force which does the Lord Advocate's bidding as it is required to do by statute. Therefore, all the facilities exist for the prosecution to establish the facts. Furthermore, as the burden of proof rests on the prosecution from start to finish, the prosecution knows what facts must be established. Accordingly, it is right for many reasons —and these are the principal reasons—that the initiative should lie with the prosecution.
On the other side of the fence, one has a legally-aided solicitor whose budget is substantially smaller, whose facilities are negligible compared with those of the Crown and whose diary is likely to be full of many other cases. Therefore, it is right that there should not be an equality of obligation; the duty should lie on the Crown. For those reasons, I beg to move.
Lord Rodger of Earlsferry: In speaking to the amendment, the noble and learned Lord really referred to some of the things that he had already said this evening. In the vast majority of cases, I accept, in practical terms, that the prosecution will have the interest in operating a system of agreement. As the noble and learned Lord said, they will have the burden of proof and therefore they will be seeking to establish matters.
Clause 14 provides the machinery for uncontroversial evidence in the Bill. Of course, as we have already seen, the duty, such as it is, lies in Clause 11: but Clause 14 is the one that gives the power. We say that it is useful for the power in Clause 14 to be available to the defence where they wish to use it. If, for example, they have some matter in relation to the identification of a car or something like that which they think the prosecution would not dispute and which it would be useful to get agreed, we believe that it is desirable that the machinery should be available to them as well as the prosecutor. For that reason, we think that such a provision is indeed desirable.
So far as concerns the detail of the clause, I can say on behalf of the Government that we are happy to look through the noble and learned Lord's proposed new clause to ascertain whether we can learn from the language that he has used, as opposed to seeing whether any improvements can be made to the provision.
In the light of the approach that we have taken to the matter of whether the defence should be able to use the machinery—namely, that we believe that such machinery should be available to them—we cannot accept a version which limits that availability to matters for the prosecution as the amendment suggests.
Lord McCluskey: I do not propose to press the matter at this stage. However, the noble and learned Lord the Lord Advocate mentioned making the machinery available. There is no problem about the Government's approach to the matter as regards having the machinery available to the defence. The defence are always able to approach the Crown and say, "Look, we are willing to agree this, and we are willing to agree that". The question is: who has the initiative? The machinery is designed to impose an equal burden or opportunity on both sides, although they do not have
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equal resources. I hope that the noble and learned Lord will look very carefully at the matter to see whether he has made a great error in imposing in this group of clauses an equality of burden on the two sides. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clause 12 [First and preliminary diets in solemn proceedings]:
Lord McCluskeymoved Amendment No. 31:
Page 7, line 27, after ("shall") insert ("seek to").
The noble and learned Lord said: I now turn to a group of amendments starting with Amendment No. 31 and continuing through to Amendment No. 38. The amendments which are tabled in my name deal with a number of related matters. Amendments Nos. 31 and 37 both attempt to insert the words "seek to" into Clause 12. If one turns to line 27 of page 7 of the Bill, it will be seen that the purpose of the amendments is to avoid imposing on the court the duty to do something which it may be impossible for it to do. As presently worded, the provision reads, "the court shall ascertain".
I have already drawn attention to the fact that the accused cannot be compelled to take part in that business. There is no sanction and I hope that I shall not be told that it is unethical to decline to co-operate. Accordingly, a duty is imposed upon the court to ascertain. The logic of my amendment is that the provision would simply say that the court, "shall seek to ascertain". That is the sensible way to put it. It reflects the reality of the situation.
Amendment No. 36 is a related amendment. Its wording spells out all that one needs to know; namely, that,
"the accused shall not be obliged to answer any such question and if he does not answer that shall not be commented upon by the judge or the prosecutor at any later stage of the proceedings".
That is to negative the possibility of an informal sanction; in other words, people alleging at some later stage of the proceedings that someone could have answered but did not do so.
These are all pinpricks into the right of silence at this stage in the proceedings. Those are the matters to which I wish to draw attention. For the moment, I shall content myself with moving Amendment No. 31. I beg to move.
Lord Fraser of Carmyllie: This clause, as I think the noble and learned Lord appreciates, is an important part of our package of reforms of pre-trial procedure. It places a clear responsibility on the court, at a first or preliminary diet, to make a judgment about the likelihood of a case going to trial.
These amendments, one for first diets and the other for preliminary diets, would, as we see it, weaken this responsibility by requiring the court only to "seek to" ascertain whether the trial is likely to proceed on time. This would allow the court merely to make an attempt to determine if the case is likely to proceed on time but not in the end reach any conclusion. In that event, the important new duties placed on the court by the new subsections (8) and (9) and (1C) and (1D) of Sections 75A and 337A of the 1975 Act by Clauses 12 and 13

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respectively would be rendered nugatory. The purpose of Clauses 12 and 13 is to ensure that cases are fully prepared before the trial diet. I think it is clear enough that the purpose behind that is to reduce as much as possible the number of occasions when the parties and all the witnesses turn up for a trial which does not take place. I do not imagine there is anyone who does not think that is a wholly desirable objective; it is a matter of whether we are going about this in quite the right way.
While I understand the noble and learned Lord's concern that in some circumstances it may be a difficult task for him to ascertain whether a case is likely to proceed, it is nevertheless important, if there is to be any success in our pre-trial procedures, that the court should reach some judgment about that probability. If a court fails to do that, we will find ourselves muddling forward in the way that has proved so unsatisfactory in the past. In short, we believe that what the noble and learned Lord proposes waters this matter down a little too much. However, I understand his anxiety about the extent of the existing duty. I shall have a look at this matter again so long as he does not understand by that that I am indicating I shall necessarily return with an amendment on it. However, I have heard his argument.
The noble and learned Lord also mentioned Amendments Nos. 36 and 38. Although they are grouped separately I do not know whether he wishes me to deal with them now or later.
Lord McCloskey: I shall deal with the point that has been made. It may be that the noble and learned Lord the Lord Advocate will consider including some such phrase as "so far as reasonably practicable" so that the court is not laid upon an absolute duty to ascertain something which it may not be able to ascertain. That is one suggestion which the noble and learned Lord need not respond to tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCloskeyhad given notice of his intention to move Amendment No. 32:
Page 7, leave out lines 32 to 34.
The noble and learned Lord said: This is a consequential amendment and I shall not move it. However, I should draw attention to the fact that the whole character of Section 75A is such that the judge is made very much interventionist. I hope that has been carefully thought through. It is a matter in a sense beyond my ken because I am not involved in summary cases and we have not had this system, or anything like it, so far in the High Court. I shall not move the amendment.
[Amendment No. 32 not moved.]
9.30 p.m.
Lord Fraser of Carmylliemoved Amendments Nos. 33 and 34:
Page 8, line 1, leave out ("67") and insert ("76").
Page 8, line 2, after ("Act;") insert:
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("() that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed;").
The noble and learned Lord said: In moving Amendments Nos. 33 and 34 I shall speak also to Amendment No. 39. The Committee will be pleased to know that these are technical in nature, correcting minor errors in the Bill. I beg to move.
On Question, amendments agreed to.
Lord Macaulay of Bragarmoved Amendment No. 35:
Page 8, line 6, after ("accused") insert ("or where he is represented, his solicitor").
The noble Lord said: This is a minor amendment. It has been put forward by the Law Society of Scotland, not because of any self-interest in relation to the income of solicitors but as a safeguard for the accused in the light of the matters which an accused person may have to agree with the prosecutor. It seems proper that if the accused is represented then he should have an opportunity to discuss matters with his solicitor before he reaches any agreement with the prosecutor. There are technical and legal matters contained in this particular clause of the Bill, and it is in the interests of justice to the accused that, if he has a solicitor, he should have access to his solicitor to discuss these matters. I beg to move.
Lord Fraser of Carmyllie: I do not think that there is anything between us on this matter. The amendment requires that the procedure for the new mandatory diets provided for in Clause 12 be amended to state explicitly that the court may ask questions of the accused, if the accused is represented, through his solicitor. The intention of the clause is certainly to permit questioning of the accused through his solicitor. That is not stated explicitly in the clause because in our view it does not need to be. That is because such questioning would be permitted by virtue of the ordinary law of agency. It would therefore be inappropriate to make express provision for solicitors, particularly given that there is another relevant category of agency; namely advocates.
I hope that with that brief reassurance the noble Lord will feel able to withdraw the amendment.
Lord Macaulay of Bragar: Perhaps the amendment should have read "his representative" rather than "his solicitor". However, having heard what the noble and learned Lord had to say about the matter I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 to 38 not moved.]
Lord Fraser of Carmylliemoved Amendment No. 39:
Page 9, leave out lines 13 to 16.
The noble and learned Lord said: In moving Amendments Nos. 33 and 34 I spoke to Amendment No. 39. I beg to move.
On Question, amendment agreed to.
Clause 12, as amended, agreed to.
Lord McCluskeymoved Amendment No. 40:
After Clause 12, insert the following new clause:

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("Calculation of specified period: effect of detention
In section 101 of the 1975 Act after subsection (6) there shall be inserted—
"(7) The running of the 12 months period specified in subsection (1) of this section shall be deemed to be interrupted by the detention of the accused on remand in any other part of the United Kingdom and that period shall be deemed not to run during any period while the accused is detained on remand in any other part of the United Kingdom in a prison, borstal institution, remand centre, detention centre or remand home.".").
The noble and learned Lord said: At Second Reading I mentioned the Rowan case. That will be found at col. 567 of Hansard for 29th November 1994. I do not find it necessary to add anything to what I said then except that there has to be some legislative solution. It is better that it should be delivered swiftly rather than postponed.
The Minister, the noble and learned Lord, Lord Fraser of Carmyllie, wrote to me on 8th December, 1994 saying:
"I agree that the present position is not satisfactory. But in seeking to remedy it we must, I believe, take account of the effect of transfer on proceedings in England and Wales as well as Scotland".
He has been in touch with the Home Office to invite officials to consider what is to be done.
In essence, what is being said is that we cannot legislate to remove this Scottish problem until the English Home Office decides to stir itself and do something about it. It is not for me to comment on the mysteries of government in any way, but I have sought to provide an internal Scottish solution to the problem. It is one which simply puts into statute a statutory interruption of the running of the 12-month period specified in Section 101(1).
I do not like to do this. I am strongly in favour, as I am sure that Ministers are, of our system of time checks. On the other hand, we have to recognise that when that situation occurs, we either allow the time to run out and the person gets off altogether—he is not brought to trial, simply because he is remanded in custody in England —or we have to go to the court and seek an extension on cause shown. That is an expensive operation. It may well not be granted in particular cases and we could therefore again lose a prosecution.
The third solution is something of this kind. I do not suppose that the amendment is technically perfect. But I hope that if not tonight, at least between now and the final stages of the Bill in this House, the Government will consider some solution along those lines. I beg to move.
Lord Rodger of Earlsferry: I am grateful to the noble and learned Lord for bringing forward the amendment. As he has explained the matter, I do not need to go into it in detail. The problem arises where someone in Scotland is due to come for trial but is in custody in England. In the legislation as framed at present, it is not possible for that person to be released for trial in Scotland. Since relevant time limits run in Scotland, the result is that there is a danger that those time limits may be infringed with the result that trial in Scotland of offences in Scotland would not be possible. That is clearly undesirable. Although much less likely,
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there is certainly potential for a case to occur the other way round: for proceedings to be debarred in England by virtue of a similar situation with someone in custody in Scotland.
I do not believe that the matter has arisen simply due to a legislative oversight. I think that the position was regarded as being more complicated and difficult to resolve than those which were dealt with by the Criminal Justice Act 1961. As the noble and learned Lord indicated, the position has been the subject of discussion since the time of the Rowan case last year which thrust the matter once more to our attention.
I believe that the noble and learned Lord is right in envisaging his solution as being somewhat second best. However, I am grateful to him for putting it forward. Until a better solution can be found, for the reasons that he has given I believe that his proposal is desirable and acceptable. As the noble and learned Lord said, there are some matters of detail which have to be considered. But I am happy to accept the amendment in principle and undertake to bring an amendment back which deals with any technicalities.
Lord McCluskey: On that happy note, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Intermediate diet in summary proceedings]:
Lord Fraser of Carmylliemoved Amendment No. 41:
Page 9, line 29, leave out ("in paragraph (a), the word "and"") and insert ("the word "and" immediately following paragraph (a)").
The noble and learned Lord said: In speaking to Amendment No. 41, perhaps I might speak also to Amendment No. 187. These are amendments to correct a minor error which occurred at the drafting stage of the Bill. I beg to move.
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
Clause 14 [Uncontroversial evidence]:
Lord Macaulay of Bragarmoved Amendment No. 42:
Page 10, line 14, after ("proceedings") insert ("in which the accused is legally represented").
The noble Lord said: This is a minor amendment. Amendments Nos. 45 to 47, 55 to 57, and 60 to 74 are a series of amendments. I do not wish to take up the Committee's time, so I shall not move each amendment separately. The amendments came from the Law Society of Scotland which considers that the timescale is too short. Perhaps the Government will examine the timescale involved in those parts of the Bill. I beg to move Amendment No. 42.
Lord Rodger of Earlsferry: I may be wrong but I rather thought that Amendment No. 42 was directed at a slightly different point and not time limits. I thought that it dealt with whether or not someone required to be represented in order to take advantage of the procedure in Clause 14.

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We consider that that procedure should be available to people who are unrepresented, just as it is available for those who are represented. The Scottish Law Commission examined the question as to whether people who were unrepresented could make admissions in terms of what they proposed as their method of proving undisputed facts. The commission concluded that in principle it was proper for that to be available and it stated:
"In principle it may seem inconsistent to impose a requirement of legal representation in any procedure for formal admission of facts when an unrepresented accused is entitled to plead guilty and thus make the most comprehensive admission of all".
As a matter of principle, that is correct. Nevertheless, one can see that when someone is unrepresented special circumstances may arise. The Committee will have noticed that under Clause 14 (3) the court may allow a late service of the relevant notice in special circumstances.
As a further safeguard, under Clause 14 (6), the court,
"may, on the application of any party, where it is satisfied that there are special circumstances … direct that the presumptions … shall not apply".
We believe that that provides the necessary safeguards so that even where someone is not represented it is proper for that machinery to be used.
The noble Lord referred in broad outline to many amendments which the Law Society of Scotland proposed in connection with time limits. That matter has been carefully considered and it seems to us that although the time limits are demanding, nevertheless they can be fulfilled. The whole object is to ensure that so far as possible matters are considered promptly by both sides and that relevant agreements are reached. Therefore, we think that the time limits are appropriate.
Lord Macaulay of Bragar: In making the observations that I did in formally moving Amendment No. 42, I was trying to be helpful to the Committee rather than taking up its time. A basic principle is involved and the noble and learned Lord has answered the question raised by the amendments. Again, the answer will no doubt be noted by the Law Society of Scotland which will have an opportunity to come back at Report stage if it wishes. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 47 not moved.]
Clause 14 agreed to.
9.45 p.m.
Clause 15 [Evidence of biological material]:
Lord Macaulay of Bragarmoved Amendment No. 48:
Page 11, line 11, leave out ("shall") and insert ("may").
The noble Lord said: This is one amendment that I did not mention in my "omnibus" approach to the Bill a short time ago. The amendment inserts the word "may" instead of "shall" in Clause 15. Again, the proposal comes from the Law Society. The effect of the amendment would be to allow discretion on the part of
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the court as to whether evidence of biological material shall be admissible notwithstanding that neither the material nor a sample is lodged in court.
The rationale behind the amendment is that it is always up to the court to decide on the question of fairness. Accordingly, putting in the word "may" instead of "shall" would build into the statute the question of judicial discretion rather than a mandatory obligation upon the court by the use of the word "shall". "May" leaves it open to the court to exercise its discretion. I beg to move.
Lord Rodger of Earlsferry: The general principle behind this provision and the reason for bringing it forward is that there are particular difficulties associated with evidence in respect of biological material. The material itself may have no visual characteristics which would enable it to be distinguished from other material of similar appearance. It may in particular—this is particularly true nowadays—be a health hazard, or in some other cases the whole sample may be used up in the process of analysis. What is important about a biological sample is not the material itself but its chemical characteristics and composition.
There have been cases in which certain judges have sought to exclude evidence about biological material because the material itself has not been produced. It has not been possible to have this matter dealt with by the appeal court; therefore, the Crown has always been placed in a position of uncertainty as to whether or not the material is required, whether or not it has to be retained, or whether or not it has to be brought to court or otherwise made available.
In these circumstances, the clause seeks to put the matter beyond doubt and say that the court should not be able to refuse to consider evidence concerning biological material solely on the basis that such material is not produced. The trouble if the word "may" were introduced is that one would in effect be going back to square one and leaving the position uncertain. It is in order to have certainty that we have set out the provision in the way we have. It seems to us that the matter is appropriately dealt with in this way. Noble Lords will note that it is restricted to evidence as to the characteristics and composition of any biological material. The production of the material itself, just visually for the jury in that situation, does not have any relevance: it is the analysis that will be of importance. For that reason we suggest that this is an appropriate provision.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for that explanation. The point does not rise directly out of the amendment, but I wonder if he will consider between now and Report stage whether there should be some built-in provision that, where it is anticipated that the material will be destroyed in the course of analysis, the defence should be informed of that fact so that the defence can be represented at the actual analysis of the material. It has happened in one or two cases. Certainly, in a case in which I was involved the production disappeared in the course of analysis and there was nothing left for the court to consider. The jury was left

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merely with the scientist's evidence, for that was what it was. If I remember rightly, it was a canister of CS gas. The policeman, who did not take kindly to my cross-examination, invited me to attend the analysis of another production he had. It was an atom bomb. He said I was very welcome to attend the destruction of the material. That was perhaps taking things a bit far in the heat of the courtroom.
In the meantime, having made these probably useless observations at this time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Clause 16 [Routine evidence]:
[Amendments Nos. 49 to 51 not moved.]
Clause 16 agreed to.
Clause 17 agreed to.
Clause 18 [Evidence of criminal record and character of accused]:
The Deputy Chairman of Committees: Before calling Amendment No. 52, I must tell the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 53 and 54.
Lord McCluskeymoved Amendment No. 52:
Page 13, line 23, leave out from ("prosecution") to end of line 24.
The noble and learned Lord said: We have a whole series of amendments which relate to Clause 18. The Committee will observe that I have given notice of my intention to oppose the Question that Clause 18 stand part of the Bill. It will be appreciated by the noble and learned Lord the Lord Advocate that one or two of the amendments are of a technical character and I do not propose to take up the time of the Committee with them. I have brought them to the attention of the noble and learned Lord the Lord Advocate and his draftsman and they can consider whether there is any merit in them.
The amendments I have tabled for page 13, line 23, of the Bill raise the point of principle I want to make. It is that in this country, both south of the Border and in Scotland, previous convictions of an accused person are relevant only in so far as they bear upon the credibility, reliability and character of that person as a witness. I understand that that has always been the basic principle in Scots law.
The reason why I seek in Amendment No. 54 at page 13, line 24, to leave out "complainer" and insert "person" is that a person who is deceased cannot be a witness. There are other suggestions such as that there might be a deceased complainer, which is not a concept that makes much sense to me.
A giant step is being taken here away from established principle. I want to know the justification for it. I want to know that from the noble and learned Lord the Lord Advocate who proposed this provision and I want to know what the Scottish Law Commission says about it. Have the judges been consulted?
The character of an accused person is not a relevant consideration in determining whether or not he did the acts with which he is charged as criminal offences. That
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has always been so. There has been an exception to that principle: namely, if he attacks the credibility and reliability of witnesses on the ground of their character and seeks to illustrate it by reference to their previous convictions. The principle then is that what is sauce for the goose is sauce for the gander. If he says that witnesses are not to be believed because they have previous convictions, then, when he himself comes to give evidence, the prosecutor is entitled to say, "You are not to be believed either because you, too, have previous convictions."
So he deliberately puts his character in issue. It makes perfectly good sense if he gives evidence because his character and quality as a witness should be compared with the character and quality of other witnesses on an equal footing. But if he is not a witness—this is at the heart of the particular clause—what possible relevance can his previous convictions have to the determination of whether or not he committed the acts. His credibility as a witness is not in issue. What is the possible relevance of it?
The answer may be that nowadays in certain circumstances an accused person, without going into the witness box, can in effect put evidence before the jury, through judicial examination, a voluntary statement or in statements made to the police at the time of the examination. If one wants to meet that situation, then let us confine the exception to the principle by restricting it to that situation.
I am very concerned that we are taking a real step—not just a small step—towards the situation that is becoming common in the United States, the so-called "truth in evidence provisions" I mentioned earlier; namely, that the prosecution puts before the jury in a criminal trial the previous convictions of the accused person, his general character, his relations with his girl friend, his relations with his children, if any, his truancy rate at school and everything else. The view is that the whole man must be presented to the jury in determining whether or not he committed a specific criminal act. That is a disastrous and unprincipled step and this too is an unprincipled step to take.
I ask the Committee to consider carefully whether the Government should be encouraged to take this step. I urge the Lord Advocate to consider what I say. Will he accept that he is making a substantial change in the law in this regard? If so, can he explain the need for it and what support he has for it from independent bodies? I beg to move.
Lord Macaulay of Bragar: I support to some extent the observations made by the noble and learned Lord, Lord McCluskey, on this clause of the Bill. I tabled a series of amendments on this clause which I do not intend to move; I want to take a closer look at it, having heard what the noble and learned Lord said.
One phrase puzzles me. It occurs in what will be new Section 141ZA(1) (b), which reads,
"but evidence is led by the defence, or the defence asks questions of a witness for the prosecution … with a view to impugning the character of the prosecutor, any witness for the prosecution or any complainer who is deceased".

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Does that mean a personal attack upon the advocate depute or the procurator fiscal conducting the trial? I read the notes on clauses which the noble and learned Lord kindly sent to me and I know that it arises in those notes on clauses. However, I have difficulty in understanding what it means. That is one reason why my amendments to Clause 18 will be delayed until a later stage of the proceedings and I have heard what the noble and learned Lord the Lord Advocate says.
As I said, to some extent I support what was said by the noble and learned Lord, Lord McCluskey. I can see the reasons behind the amendment in that an accused person may try to destroy the Crown case by a backdoor method and by not giving evidence himself. If I understand the import of the new clause, I believe that that is what it is striking at. However, I shall listen with interest to what the noble and learned Lord the Lord Advocate says on this matter.
The Earl of Mar and Kellie: I support the amendment. I am concerned about the possibility of misuse of this clause allowing disclosure of a previous criminal record. As it stands, I do not believe that it will positively contribute to the decision-making process of the trial. No juror would find it helpful to know of the accused's previous record, bearing in mind the phrase, "Round up the usual suspects", which must be part of the tactics of an investigation. Scotland needs a guarantee of sound convictions.
Lord Rodger of Earlsferry: The noble and learned Lord, Lord McCluskey, produces a number of amendments which go to the drafting of specific matters. As I shall indicate in a moment, we shall certainly be looking at the drafting of this clause. But much more fundamentally, he raised the question of the matter of principle.
We see this provision as a logical development of the position which has obtained in our law for over a century. Section 160(2) of the Criminal Procedure (Scotland) Act 1975 is the current embodiment of a provision which goes back to Section 67 of the Criminal Procedure (Scotland) Act of 1887. By that subsection Parliament has provided, and I read short, that the prosecutor may lay evidence of the accused's previous convictions before the jury where the accused shall lead evidence to prove previous good character. That provision has nothing whatever to do with the situation under Section 141, to which the noble and learned Lord spoke, which arises where the accused gives evidence. Section 141(f) deals with the questions which an accused may be asked. That provides that he cannot be asked about previous convictions in broad terms unless he has fulfilled the qualifying conditions.
Section 160(2) has nothing to do with that but deals with the leading of evidence. The matters are quite distinct. That is not only plain on the face of the statute, but it is plain also from the fact that the provision came into our law in 1887, 11 years before the Criminal Evidence Act 1898 which first allowed accused persons to give evidence and which contained the original version of Section 141 for our law.
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The provisions in Clause 18 which cover the leading of evidence with a view to establishing an accused's good character really do no more than re-enact what is already specifically covered by Section 160(2) of the 1975 Act. Indeed, it will be for consideration whether some consequential amendment of that section may be appropriate. All that we have done therefore is to build on that approach by adopting the general policy which is already enshrined in Section 141 and so allowing the prosecutor to lead evidence not only if the defence leads evidence or asks questions with a view to showing he is of good character, but also if he does so with a view to impugning the character of the prosecutor and so on.
The principle already enshrined in subsection (2) of Section 160 and developed in the Bill seems sound. It is surely wrong that if the defence decides, as a matter of tactics, to present the jury with a picture of the accused as a man of good character, or to bring out the faults of various witnesses or of a deceased person, the jury should be left with a one-sided picture. If they are to hear of these factors so far as regards one side, then at least in some cases it would seem appropriate that they should hear of them also so far as they affect the accused. Otherwise there is a risk that they are being asked to reach their verdict on a false and essentially distorted basis. I submit that that cannot be right.
Nonetheless I have listened very carefully to what has been said by your Lordships on these matters and I can perhaps indicate the position along these lines. The Government have already identified the need for an amendment to be introduced to cover the position of attacks on the character of deceased persons in Section 141 of the 1975 Act. That has been omitted by error and an amendment will have to be brought forward at the Report stage. Secondly, as noble Lords who are familiar with our system are aware, under the decision of the High Court in Leggat the prosecutor needs the permission of the court before evidence of character and so on can be adduced and questions can be asked under Section 141. It seems desirable that that matter, which is not dealt with specifically on the face of the statute at the moment, should be made clear and an amendment to that effect will be brought forward.
Given that that is the approach in Section 141, then it seems to us also that it would be proper to provide for the prosecutor to apply for permission before he may introduce evidence in the terms envisaged by Clause 18. At the present moment it is not required in terms of Section 160(2); but it seems to me that it will be proper that it should be so because, as experience has shown in connection with Section 141, there is a need for giving some measure of control in these matters so that there is no risk of what is designed to be something which will lead to a more just position, being abused. There will be a degree of control.
The noble Lord, Lord Macaulay, drew attention to the words regarding the attack on the character of the prosecutor. Those words have been taken from the corresponding provision in Section 141(IF). That particular subsection has been operating for a number of years. In the light of that explanation, and with the

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undertaking that I shall be looking further into the drafting of these matters, I hope that the noble and learned Lord will be able to withdraw the amendment.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, perhaps I may refer to the fact that I raised a question as to what the phrase means. I am not sure whether he has given an answer. How will it be exercised in practice? What direction is given to procurators fiscal as to how to interpret the section? It is a rather puzzling piece of phraseology.
Lord Rodger of Earlsferry: As the noble Lord says, it is a slightly puzzling matter, and it is one which one might look at. One of the reasons why we copied the words from the present legislation is that it corresponds to the existing language. I have a suspicion that that language may to some extent owe its origins to the fact that this is a provision which is common for England and Scotland. It may have been more appropriate as regards prosecutors in England rather than Scotland. I am not quite sure about that matter. It is established legislative language.
Lord McCluskey: I am rather surprised at the Lord Advocate's answer to what I have said and his reference to Section 67 and Section 160(2) of the 1987 Act. I thought that I must have missed something. If he tended to take a logical development of Section 160(2), I am surprised that he should put the provision in beside Section 141. That is why I rushed to check the Notes on Clauses. I find no hint of Section 160(2). I believe that it is a rationalisation which has been put in at the last moment.
It appears to me that this is a very considerable step which is being taken. Section 160(2) dates back to 1987 and it says this:
"Nothing in this section shall prevent the prosecutor from laying before the jury evidence of previous convictions where … the accused shall lead evidence to prove previous good character".
Obviously, if the accused says, "I lead evidence of my previous good character" the prosecution must be able to lead evidence of his previous convictions to show that he is not of previous good character. It has nothing whatever to do with what has been put in here. What has been put in beside Section 141 is something to blacken the accused simply because he attempts to show that the reliability of the evidence should be impugned on the basis that I have suggested.
I hope that the noble and learned Lord will think further about this matter. He said in terms that more amendments are coming. In particular, he has referred to the leave of the court. That might be an important safeguard. I shall keep my powder dry and withdraw this amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Viscount St. Davids): Before I call Amendment No. 53 I should point out that there is a mistake on the Marshalled List. It should read,
Page 13, line 23, after "or" insert "of".
Lord McCluskeyhad given notice of his intention to move Amendment No. 53:
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Page 13, line 23, after ("prosecution") insert ("of").
The noble and learned Lord said: I shall shortly discover what this is about. We are on page 13, line 23. In the circumstances and this amendment being technical in character, I do not propose to move it.
[Amendment No. 53 not moved.]
Lord McCluskeyhad given notice of his intention to moved Amendment No. 54:
Page 13, line 24, leave out ("complainer") and insert ("person").
The noble and learned Lord said: This is a drafting point as I mentioned earlier. I do not propose to move the amendment.
[Amendment No. 54 not moved.]
[Amendments Nos. 55 to 57 not moved.]
Lord McCluskeyhad given notice of his intention to move Amendments Nos. 58 and 59:
Page 13, line 44, after ("but") insert ("shall if opposed, be heard").
Page 13, line 45, leave out ("and the public").
The noble and learned Lord said: These amendments deal with a slightly different point, but I shall not trouble your Lordships tonight with either because they will be caught up in the general review of this matter. Therefore, I do not propose to move them.
[Amendments Nos. 58 and 59 not moved.]
[Amendments Nos. 60 to 62 not moved.]
On Question, Whether Clause 18 shall stand part of the Bill?
Lord McCluskey: Having said all that I want to say at this stage on this matter, I do not propose at the moment to oppose the Question that the clause shall stand part of the Bill.
Clause 18 agreed to.
Clause 19 [Evidence as to controlled drugs and medicinal products]:
Lord Macaulay of Bragarhad given notice of his intention to move Amendment No. 63:
Page 15, line 7, leave out ("14") and insert ("21").
The noble Lord said: We have already discussed the subject of this amendment—and of Amendments Nos. 64 to 74—at an earlier stage. I do not propose to move the amendment.
[Amendment No. 63 not moved.]
[Amendments Nos. 64 to 66 not moved.]
Clause 19 agreed to.
Clause 20 [Evidence as to time and place of video surveillance recordings]:
[Amendments Nos. 67 to 70 not moved.]
Clause 20 agreed to.
Clause 21 [Evidence in relation to fingerprints]:
[Amendments Nos. 71 to 74 not moved.]
Clause 21 agreed to.
Clause 22 [Evidence in relation to sexual offences]:
Lord Macaulay of Bragarmoved Amendment No. 75:
Page 16, leave out lines 24 and 25.

397
The noble Lord said: This is a fairly short amendment which restates the offences which cannot be referred to in evidence. It merely restates the crimes involved, the point behind the amendment being that all the offences that are mentioned in Section 2C of the Incest and Related Offences (Scotland) Act 1986 should be included in the Bill by way of amendment. I beg to move.
Lord Rodger of Earlsferry: Amendments Nos. 75 and 76 relate to our amendment to the provisions relating to questioning on previous sexual history. A report on this matter has pointed out, among other things, that it would be desirable to include in the coverage of these matters the possible crime of clandestine injury to women. This amendment would remove that on the perceived basis that such a crime is not prosecuted nowadays. In fact, it is prosecuted and where it is prosecuted, it seems desirable that this provision should apply.
Amendment No. 76 seems to have merit because it may very well be appropriate to include those further offences under the umbrella of this provision. In the circumstances, I am happy to consider this amendment further. In the light of that undertaking, perhaps the noble Lord will withdraw his amendment.
10.15 p.m.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation. The argument which might have been presented, but which I do not present, is that the crime—I believe it is known only in Scotland as a clandestine injury to a woman—might be subsumed within an indecent assault charge, but I shall not go into the technicalities of that at this time of the evening. I am happy to take away the noble and learned Lord's's assurance and co-operation in respect of Amendment No. 76. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
Clause 22 agreed to.
Clauses 23 and 24 agreed to.
Lord McCluskeymoved Amendment No. 77:
After Clause 24, insert the following new clause:
398
("Disqualification of jurors: further provisions
.—(1) In section 134 of the 1975 Act after the word "unfit" shall be inserted the words "or unable".
(2) In section 134 of the 1975 Act after the second use of the word "juror" shall be inserted the words "or that by reason of his lateness, or unexplained absence or apparent inattention he should not continue to serve.".").
The noble and learned Lord said: The Lord Advocate will recognise what I am seeking to do here. The wording of existing Section 134 is rather restrictive. As judges we find from time to time—prosecutors and the defence will find the same—that there are circumstances for which one has not legislated, in a sense, but where it is not satisfactory that a juror should continue to serve as a juror.
I have put down a form of words to provide a peg upon which to hang the argument. Take, for instance, the example I gave earlier of the person who gets on to the jury and turns out to be unfit to serve by reason of the fact that he is dimwitted, does not know his way back to the court and so forth. If such a situation comes to light, one should be able to dispose of that person with the consent of all, or by the judge's ruling in the exercise of his discretion. All I am asking the Lord Advocate to do tonight is to say that he will look at this matter to see whether the old wording requires a little adjustment to allow us a bit more discretion in a simple matter of this kind. I beg to move.
Lord Rodger of Earlsferry: All of us who have to operate the section are aware that there can sometimes be difficulty in fitting precisely the circumstances into the wording as it is. On the basis that the noble and learned Lord has explained, I am happy to use this opportunity to look further at the matter and to come back on Report with an amendment, or with an explanation of why we think the position is satisfactory. I am happy to look at the matter if the noble and learned Lord will withdraw the amendment on this occasion.
Lord McCluskey: I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 25 agreed to.
The Earl of Lindsay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty minutes past ten o'clock.