Lords Sitting of 5 June 1996

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

Armed Forces: Manpower Shortages
Viscount Allenby of Megiddo asked Her Majesty's Government:
Whether any of Her Majesty's Armed Forces were under strength at 30th April 1996; and, if so, whether these shortages are expected to continue into 1997 and what steps are being taken to overcome them.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, the most significant shortfall in manpower was in the Army. There was also a shortage in the Royal Marines General Duties and for certain specialisations in the RAF. All are expected to continue into 1997 but at a reduced level. Steps taken to overcome the shortfall include the introduction of a retention incentive bonus and recruiting bounty in both the naval service and the Army, an initiative launched in January to use the Employment Service Jobcentre network for Armed Forces recruiting, and increased recruitment advertising activity.
Viscount Allenby of Megiddo: My Lords, I thank the noble Earl for that reply. However, does he agree that the situation is slightly worse than he indicated in his response due to the shortage of trained skilled personnel and recruits of the correct age group, and the habitual overstretch to which we have become used in the Armed Forces?
Earl Howe: My Lords, the Army is currently 4,000 trained troops under strength, primarily due to the problems of recruitment and retention in the Royal Armoured Corps, the Royal Artillery and the infantry. That is a source of concern, but I must point out that the Army's numerical size is not a full guide to its front-line strength, as the noble Viscount will appreciate. Its structure, readiness, capability and ability to sustain itself on operations must also be considered. Administrators are confident that the Army can meet its commitments.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many of us on this side of the House are anxious about the strength of the Armed Forces? Can he give a firm assurance that the measures to which he referred in the course of his reply will definitely restore the Armed Forces to their full strength in a limited time?
Earl Howe: My Lords, I am grateful to my noble friend and the answer is "yes". We are confident that the initiatives we now have in train will enable the Army
1246
to correct its manning shortfall by the year 2000 at the latest and will certainly improve the situation considerably before that time. One of the measures that I did not mention was that the programme of closures of the Army careers information offices has been halted. We intend to ensure that 84 such offices remain open, including five new ones, and that 39 Armed Forces careers offices are up and running by 1st April next year.
Lord Williams of Elvel: My Lords, I listened with interest to the noble Earl saying that the Army may be up to some sort of full strength by the year 2000. What happens between now and then to the commitments that the Army, Royal Air Force and Royal Navy have? Is the noble Lord able to say what is the present level of recruitment to the Armed Forces as opposed to the level of 20 years ago?
Earl Howe: My Lords, I emphasised that we are confident that the Army can meet its commitments, and the same applies to the Royal Navy and the Royal Air Force. There is no difficulty of manning in the Royal Navy, and the Royal Air Force is only marginally under strength. The main difficulty is in the Army. But that does not impact on its operational effectiveness. The noble Lord asked about recruitment into the Army. We need around 16,000 new recruits into the Army each year. That target is not quite being met, but the initiatives I mentioned will redress that position shortly.
Lord Mayhew: My Lords, is the Minister aware that from the start there were different opinions in this House about the planned overall reductions in service manpower? But I believe I am right in saying that there has been unanimity in every part of the House that the planned reductions of Army manpower were excessive. Is the noble Earl aware that, although the remedies being taken by the Government are welcome, it is a problem that Ministers have brought on themselves?
Earl Howe: My Lords, I do not agree with the noble Lord. The reductions that we have seen in the Armed Forces are a direct result of a reduced threat. That is a point that is well appreciated by noble Lords throughout the House. Where I do agree with the noble Lord is that one of the difficulties of recruiting is that we are in a real sense the victims of our own success in another field. More young people than ever are entering further education. One in three pupils now stays on for some form of further education compared with one in eight 15 years ago. Both of those developments have greatly reduced our pool of potential recruits.
Lord Campbell of Alloway: My Lords, is my noble friend aware that those of us who went to war in 1939 with an ill-equipped, undermanned and wholly inefficient Army read with dismay the debate, as reported in the Official Report, in which the noble and gallant Lords, Lord Bramall and Lord Craig, and others explained the deficiency of our forces today? Is it not really a shame on any government that we should be in this position now?
Earl Howe: My Lords, I really must take issue with my noble friend, much as I respect him in all that he says. I believe that our Armed Forces are the best armed forces in the world. I believe that they are the best qualified. They are certainly better equipped now than they have been for very many years. My noble friend does not need to take my word for that. He can talk to any soldier in the British Army and he will be told the same thing. Motivation is high and I believe that our Armed Forces do credit to us wherever they are seen around the world, especially in their operations in Bosnia.
Lord Dean of Beswick: My Lords, in his answer to the first supplementary question the noble Earl said that the Ministers involved are satisfied with the situation. However, have not the exchanges in the House today shown that people with experience of the defence of the realm are certainly not satisfied? My noble friend on the Front Bench asked about recruitment. Is it not the case that only a few years ago the Armed Forces accepted only one in three applicants? What has happened to reverse the situation; or are we still refusing people who could be recruited and trained?
Earl Howe: My Lords, I made a particular point of saying that we were not satisfied with the situation. We were satisfied that the Army could meet its operational commitments but we were not satisfied that we had done enough about recruitment. Hence we have introduced all the measures I have set out. The noble Lord referred to acceptances and enlistments. One of the main problems in carrying through inquiries to enlistment is physical fitness. One of the initiatives we have recently taken is to put new recruits who just fail the physical fitness test through a course to enable them to bring their standards of physical fitness up to par. I am pleased to say that that has proved a success.
Lord Craig of Radley: My Lords, is not retention also a serious issue? Is the Minister aware that 11 of 12 Tornado flight commanders in Germany intend to exercise their option to retire at the early age of 38? These officers provide future station and squadron commanders. What measures do the Government believe are necessary to correct this very worrying situation?
Earl Howe: My Lords, many RAF officers have taken voluntary redundancy. As the noble and gallant Lord will know, the draw-down from the RAF has been a managed and carefully planned operation which should ensure that the RAF can meet its commitments quite readily. However, I take his point. We want to ensure that once the RAF is reduced to the target strength we do not lose the people that we would like to keep. We are therefore giving consideration to a number of measures which will ensure that that will not happen, including bonuses and retention bounties.

Organophosphate Exposure: Disease C3
2.47 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Why employees who suffer from the prescribed industrial disease C3, exposure to organophosphates, are not treated equally in different parts of the United Kingdom when they claim industrial injury benefit.
Lord Lucas: My Lords, we have no information to indicate that that is the case. Claims for industrial injuries disablement benefit in respect of prescribed disease C3 are dealt with under the same rules throughout Great Britain. The procedures for diagnosis and assessment of disablement from prescribed diseases are laid down in legislation.
The Countess of Mar: My Lords, is the noble Lord aware that I know of about six cases in which industrial injuries disablement benefit has been allowed for claimants? Is he further aware that Benefits Agency Medical Service doctors and the statutory authority doctors will often openly admit that they know nothing about OP poisoning and that claimants presenting with a history of exposure to OPs and with medical evidence which corroborates peripheral nerve damage and psychiatric damage are totally set to one side? I receive letter after letter and I have then to write to the Benefits Agency Medical Service, from which, I must say, I get a tremendous amount of co-operation. Can the Minister please ensure that all the doctors involved are well aware of the chronic effects of OP poisoning on people's health?
Lord Lucas: My Lords, the doctors involved should be aware of the chronic effects of acute organophosphate poisoning. They receive special training to do the work that they carry out for the Benefits Agency. Organophosphate poisoning is clearly part of the prescribed disease, C3, and should be something with which the doctors are familiar. If it is becoming apparent to the noble Countess that that is not the case, I should be grateful if she would correspond with Ministers as well as with officials.
Baroness Hollis of Heigham: My Lords, we welcome the Minister's assurance on that. Does he agree that there appears to be some evidence that different doctors in different parts of the country are responding to similar cases in different ways and that, as a result, some people with the same symptoms are getting benefits while other people in other parts of the country with the same symptoms are not? If that is the case—and the noble Countess appears to have evidence to suggest that it is—may we have the Minister's assurance that he will take up this matter and try to ensure, either through guidance or whatever, that doctors treat similar cases in similar ways?
Lord Lucas: My Lords, I quite agree with the noble Baroness that people with the same disease should be treated in the same way. Organophosphate poisoning is

1249
a difficult disease to diagnose because the symptoms are various and they are shared by many other conditions. However, it should not be the case—certainly not in this very specialised and additionally-trained service—that there is a wide disparity in the way in which doctors report in relation to industrial injury benefits. If we receive the information which the noble Countess may have on this matter, we shall certainly take it seriously.
The Countess of Mar: My Lords, I am very grateful to the noble Lord for his co-operation, as always. I shall be writing to him.

Prisons Ombudsman: Terms of Reference
2.51 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
Why the terms of reference of the Prisons Ombudsman have been made more restrictive.
The Minister of State, Home Office (Baroness Blatch): My Lords, my right honourable friend the Home Secretary has not made the Prisons Ombudsman's terms of reference more restrictive; he has clarified them.
The Earl of Longford: My Lords, I congratulate the noble Baroness who has, as usual, defended with much charm the totally indefensible; in fact, the ludicrous. Is she aware that under the new plans the ombudsman will not be allowed to criticise any decision made by a Minister? Moreover, is she aware that under the new plans the ombudsman will not be allowed to criticise or discuss any advice given by civil servants to Ministers? Is the Minister further aware that the ombudsman himself has expressed much regret before the Select Committee at these very significant changes?
Baroness Blatch: My Lords, the Prisons Ombudsman's task is to consider grievances from prisoners who have failed to obtain satisfaction from the prisoners' complaints system. Indeed, the post of Prisons Ombudsman was created by this Government as a result of the Woolf Report which followed the Strangeways riot. While there was no direct criticism of the complaints system itself, it was thought that a further layer of independent scrutiny would be helpful. That was why the ombudsman was appointed. I am aware that the ombudsman has made one or two complaints; for example, he said that 6 per cent. of cases are not easy to investigate because he believes that his work is thwarted. We have asked him for evidence to support that claim, but to date we have not received it. He also believes that sometimes the files are incomplete or even missing. We have asked him for evidence to substantiate that claim and so far he has failed to present it.
Lord Lester of Herne Hill: My Lords, does the Minister agree that in clarifying Sir Peter Woodhead's powers three restraints have been imposed in his previous powers: first, restricting his access to
1250
documents, making him dependent on what the Prison Service chooses to hand over to him; secondly, removing his right to investigate or even check any decisions made by Ministers or advice given to them; and, thirdly, requiring him to provide draft reports for checking by the Prison Service before publication? Does the Minister further agree with the Conservative Member of Parliament, Michael Lord, who commented:
"It is now a misnomer to describe him as an ombudsman at all in view of his lack of independence. He is really a complaints investigator who does as much as the Home Office wishes him to do"?
Baroness Blatch: My Lords, the noble Lord is wrong in the question that he has just put to me. Access to documentation is not restricted. The Director General of the Prison Service will ensure that the Prisons Ombudsman has unfettered access to Prison Service documents, including classified material, and to information entrusted to the Prison Service by other organisations but excluding advice or reports to Ministers which invite or result in ministerial decisions. It is well known to this House that ministerial decisions are subject to judicial review and the process by which they are taken is subject to the Parliamentary Commissioner as another form of scrutiny. So the Home Secretary and Ministers are subject to scrutiny.
As regards ministerial advice, all advice that does not result in a ministerial decision is available to the Prisons Ombudsman as long as it relates to the particular investigation that was within the remit of the Prisons Ombudsman.
As regards the report from the Prisons Ombudsman, it is only fair that if there are criticisms of the Prison Service the service should be allowed at least to see them in advance and to have some view about the accuracy of the reports.
Lord McIntosh of Haringey: My Lords, is it not the case that the answer which the Minister has just given is directly contradicted by the letter which the Home Secretary wrote to the Prisons Ombudsman on 7th May? He said:
"On the question of access to documents to determine eligibility (paragraph 9) I cannot agree that you need unfettered access to papers for this purpose".
Is that not—and will not Hansard show it to be—in direct contradiction to what the Minister has just said? Whether or not the changes in the terms of reference are clarification, as the Minister claims, or real changes, as the ombudsman claims, is it not the case that the ombudsman wrote to the clerk to the Select Committee of the Commons on 29th April this year saying:
"Much of my attention over the past 14 months has been on resolving the differences in interpretation about my terms of reference with the Prison Service and other bodies"?
If that is so, surely at the very least that is an example of bad management by the Home Office and the Home Secretary?
Baroness Blatch: My Lords, I cannot agree with the noble Lord. In my answer to the noble Lord, Lord Lester, I said that the Prisons Ombudsman has unfettered access as long as the information he seeks

1251
is directly relevant to the case he is investigating. The ombudsman believed that his remit extended to the merits and processes of ministerial decisions. He believed that he did have unfettered access to ministerial advice. He also believed that he could investigate matters which were for the Parole Board. He further believed that he could request information for purposes other than investigation. The noble Lord makes the case very well that the Prisons Ombudsman did have a misunderstanding of his proper remit. The reason that the situation has been clarified is precisely to clear up those points.
Lord McIntosh of Haringey: My Lords, I was taught in business that misunderstandings on remit are always the responsibility of the employer and not the employee. If the Minister is right about the relevant documents, who is to decide what is a relevant document and how is the Prisons Ombudsman expected to respond to the invitation which he says has been made to him to give examples of documents that he has not seen?
Baroness Blatch: My Lords, it is entirely a matter for the Prisons Ombudsman to decide what is relevant. When he has an individual complaint from a prisoner who is deemed to have exhausted the complaints procedure, the complaint will be a very specific one. The Prisons Ombudsman will ask for all relevant papers, and there is an obligation on the Prison Service to provide all the relevant papers. If the Prisons Ombudsman believes that he has not been given the relevant papers, he must complaint about it. To date we are waiting for evidence from him, but so far we have not received it. If he wishes to have access to advice to Ministers which does not result in a ministerial decision, he also has an entitlement to see that. It will be the Prisons Ombudsman who will determine its relevance.
Lord McIntosh of Haringey: My Lords, this is a Catch-22 situation. If the ombudsman does not know that a paper exists, how can he tell whether it is relevant?
Baroness Blatch: My Lords, if the Prisons Ombudsman is investigating a specific complaint from a prisoner and if the prisoner has exhausted all avenues for having the complaint investigated by the Prison Service, there is an obligation on the service to provide all the relevant papers on the files. If the Prisons Ombudsman believes that he is not receiving all the relevant information—if he believes that files are missing or that they are incomplete—it is for the Prisons Ombudsman not only to complain to the Home Office but to produce the evidence. So far he has not produced the evidence.
Baroness Hollis of Heigham: My Lords, he cannot.

NATO: Enlargement
3 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
What are their current expectations as to the timetable for the enlargement of the North Atlantic Treaty Organisation, which countries they expect to accede, and how they intend to involve Parliament in the process of negotiation and ratification.
Lord Chesham: My Lords, NATO has yet to decide which countries to invite to join the Alliance and when. NATO Foreign Ministers decided in December 1995 to consider the way forward at their meeting this coming December. Many of the details of the process of negotiating enlargement and ratifying any enlargement document have yet to be decided by NATO. The Government will, however, keep Parliament informed as appropriate.
Lord Wallace of Saltaire: My Lords, I thank the noble Lord for that Answer, but may I ask him whether the Government are worried that the process of ratification through the US Senate, which will be a great deal more open than the process of ratification through these Houses of Parliament, may lead to another situation in which we have marched all the way up the hill only to find that the US Senate is deeply reluctant to enlarge NATO security across Eastern Europe?
I have been impressed by some of the papers that are already available to the US Senate—in stark contrast to what has not yet been provided to this House. One of the papers which I have just seen, from the Rand Corporation, suggests that there must be a clear link between NATO enlargement and the enlargement of the European Union. Do the British Government also see a link? If so, how does that affect the likely timetable for NATO enlargement?
Lord Chesham: My Lords, there is not necessarily a link between the enlargement of the EU and that of NATO. They are complementary processes with similar objectives, but all the allies agreed that there should be no formal link. Both organisations are autonomous and decisions on NATO enlargement must be based on defence criteria.
We cannot be responsible for the information that is available in the United States or for any decisions that are made there. However, in September 1995 the Alliance produced an extensive study into the howl and whys of enlargement. A copy of that has been in the Library of the House for some time. All interested Partnership for Peace partners have received full briefing on it.
Lord Carver: My Lords, does the noble Lord agree that if the membership of the North Atlantic Alliance is to be expanded in the way that is envisaged at present, it will be essential to modify Article 5 of the North Atlantic Treaty, which ensures that, to quote the words of the previous Foreign Secretary in April of last year,

1253
"if a member of the Alliance is attacked in the morning, Britain is at war in the afternoon"?
Lord Chesham: My Lords, I thank the noble and gallant Lord for that question. Under Article 5 of the Washington Treaty, NATO allies agreed that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and that if such an armed attack occurs, each ally will assist the ally or allies so attacked by taking such action as is deemed necessary, including the use of armed force, to restore and maintain security in the North Atlantic area. I do not believe that that should he changed.
Lord Carver: My Lords, will the noble Lord admit that he has left out one important word, the word "forthwith"?
Lord Chesham: My Lords, I do not have the word "forthwith" on my brief.
Baroness Blackstone: My Lords, does the noble Lord who is speaking for the Government agree that it is important to reassure Russia if there is to be enlargement to the east? In that context, can the noble Lord tell the House what plans the Government and their Western allies have for developing the special relationship with Russia that has been promised beyond the Partnership for Peace?
Lord Chesham: My Lords, I thank the noble Baroness, Lady Blackstone, for that question. There was a meeting yesterday between NATO and Foreign Minister Primakov, after which Foreign Minister Primakov made positive statements and the Russians appear to be more willing to accept the fact that enlargement will happen. We particularly welcome Primakov's emphasis on the need to develop a closer NATO-Russia relationship. The UK has been at the forefront of efforts to improve Russia's relations with the Alliance. We are pleased with the practical co-operation between Russia and NATO which has developed in IFOR.
Lord Kennet: My Lords, what is the point of pushing the frontiers of NATO up against the Russian frontier and saying that it threatens no one when the Russians insist that they feel threatened by it? Is it not likely that they know best about that and that they will rearm and once again adopt a more military stance towards us in response to that feeling of being threatened? If that happens, what happens to the reduced threat, which was adduced a moment ago by the noble Earl, Lord Howe, as the reason for the reduced numbers in the British Army?
Lord Chesham: My Lords, we believe that enlargement will be a further step towards the Alliance's goal of enhancing security and stability throughout the Euro-Atlantic area within the context of a broad European security architecture based on true co-operation. That will also extend to new members the benefits of common defence and greater integration into European and Euro-Atlantic institutions and will help to protect their further democratic development. We do not believe that that is a threat to Russia. As I have already
1254
said, we are having great discussions with Russia, which now appears to accept that an expanded NATO will be a fact.
Lord Callaghan of Cardiff: My Lords, although many of us agree with the noble Lord that the expansion of NATO does not constitute a threat to Russia, nevertheless it is important to secure at least its acquiescence if we are to avoid increasing tension in Europe. In those circumstances, what is the Government's reaction to what I believe was expressed by Marshal Grachev recently; namely, that there might be room for agreement between NATO and Russia provided that, while accepting those countries into membership, we did not put NATO troops at this stage on Russia's borders with Poland and Hungary?
Lord Chesham: My Lords, we shall, of course, take full account of Russian concerns and do everything possible to reassure Russia. There is no intention at this stage of stationing any NATO troops or equipment into any new members of NATO unless there is a threat such that it is appropriate to do so.
Lord Tebbit: My Lords, can my noble friend say whether the prospective new entrants will bring with them a military capability which will balance the increase in the responsibilities and commitments of the other NATO partners?
Lord Chesham: My Lords, that very point is being discussed at the moment. Obviously, we shall have to consider such matters not only from the budgetary point of view but also in terms of compatibility with existing equipment.

Judiciary, Legislature and the Executive
3.8 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg rose to call attention to the relationship between the judiciary, the legislature and the executive, and to judicial participation in public controversy; and to move for Papers.
The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I believe that this debate is timely. It comes when the country must believe that there is unprecedented antagonism between the judges and the Government both over judicial review of ministerial decisions and the restrictions which the Government propose on judicial discretion in sentencing. Certainly, there has been a long string of decisions striking down ministerial actions as unlawful. That has even led to some Conservative politicians calling judicial review itself into question. The public must be perplexed by what they perceive as a major clash over the distinct roles of Parliament, Ministers and the judges.
It is time to return to first principles. The British Constitution, largely unwritten, is firmly based upon the separation of powers. Parliament makes the laws, the judiciary interprets them and the judiciary develops the common law. Parliament also confers all manner of powers on the executive and other bodies, and it is for

1255
the courts to ensure that those powers are neither exceeded nor abused but exercised lawfully. Judicial review promotes the rule of law.
The separation of powers represents a delicate balance. Its success requires continued public confidence in the political impartiality of the judiciary. It is precisely because of that public confidence that judges are entrusted by government with inquiries into areas of the highest political sensitivity. To attack their reports for party political reasons is to undermine the very purpose of entrusting these inquiries to senior judges.
I do not believe that there is any question as to the political impartiality of the judiciary in the 1990s. It is true that in the late 1970s the Court of Appeal, responding to sympathetic withdrawals of labour and secondary blacking, restricted the immunities from liability for industrial action conferred by Parliament. And restricted them (it was said) inconsistently with the intention of Parliament. The unions claimed judicial fouls. But in a landmark case in 1980, Duport v. Sirs, your Lordships' House in its judicial capacity affirmed that it was the judges' duty to apply the statutes, however unpalatable and whatever their own perception of where the public interest lay. Lord Diplock pointed to the risk of judges straying beyond their constitutional role as interpreter of the enacted law and assuming a power to decide at their own discretion whether or not to apply the general law to a particular case.
In exercising their powers of judicial review, the judges should never give grounds for the public to believe that they intend to reverse government policies which they dislike. That is why I regard as unwise observations off the Bench by eminent judges that the courts have reacted to the increase in the powers claimed by government by being more active themselves, and adding for good measure that this has become all the more important at a time of one-party government. It suggests to ordinary people a judicial invasion of the legislature's turf.
I regard as equally unwise a number of recent extra-judicial statements by distinguished judges that in exceptional cases the courts may be entitled to hold invalid statutes duly passed by Parliament. This causes ordinary people not only to believe that judges may have got over and above themselves but that perhaps they are exercising a political function in judicial review cases instead of simply upholding the rule of law. The idea that an Act of Parliament could be held invalid by the judges became obsolete when the supremacy of Parliament was finally established by the Revolution of 1688. Lord Reid, one of the greatest Law Lords of our century, who held that office for 26 years from 1948 to 1974, said this:
"It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid".
I say the same about the present Home Secretary's sentencing proposals if ever Parliament could be persuaded, which I doubt, to put them on the statute book. Your Lordships' House debated these proposals on 23rd May in a debate initiated by the noble and learned Lord, Lord Taylor of Gosforth, the former Lord Chief Justice, whose outstanding occupancy of that office has been tragically abbreviated. I take this opportunity to welcome the appointments of the noble and learned Lords, Lord Bingham as Lord Chief Justice and Lord Woolf as Master of the Rolls, both lawyers of the highest distinction and independence of mind. I share the misgivings expressed by many noble Lords in the debate of the noble and learned Lord, Lord Taylor. The Home Secretary's proposals are ill-judged. To put legislative straitjackets on the judges' discretion to sentence for serious crimes is almost always a mistake. The Home Secretary has already put the prison population up from 40,000 to 55,000. These proposals, if implemented, could easily push the prison population up to 80,000 or more. The present Home Secretary gives every impression of playing politics with the administration of justice.
But if Parliament were to legislate for these proposals it would be neither unconstitutional nor prejudicial to the independence of the judiciary. Parliament is free to fix both minimum and maximum sentences. To claim that judicial independence is as a result threatened is to confuse. As Chief Justice Holt said in the very first year of the 18th century,
"an Act of Parliament can do no wrong, though it may do several things that look pretty odd".
I take this opportunity to pay tribute to the high quality of judicial review in this country. It has so often rightly held the executive to account and improved the quality of administrative decision making. It promotes the rule of law. Judicial review is not an appellate procedure. The court does not substitute its opinion for that of the decision maker on whom Parliament has conferred the power of decision. The court rules only on the legality of a decision, not its correctness. Courts strike down a discretionary decision, not otherwise unlawful, only if it can be stigmatised in the literal sense as irrational. Of course, there are sophisticated levels of professional disagreement among lawyers whether the judges may in some cases have departed somewhat from these basic principles, which I would describe as judicial self-restraint combined with an acceptance of the sovereignty of Parliament. I drew attention to some of these disagreements in a public lecture last year. But I take this opportunity to make plain that it is for the judges, and ultimately your Lordships' House in its judicial capacity, to define these principles. I would be hostile to any legislative attempt to restrict judicial review, which I believe directly promotes the rule of law.
I turn to judicial participation in public controversy. The 5th June 1996 seems a long way away from the Kilmuir Rules which were designed to ban the judiciary from speaking to the media. These rules were set out in a letter written in 1955 by the then Lord Chancellor, Viscount Kilmuir. He wrote that as a general rule it was

1257
undesirable for members of the judiciary to broadcast on the wireless or to appear on television. Today, Lord Kilmuir's language has a period ring. I quote:
"So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism".
The noble and learned Lord on the Woolsack took office in 1987. He took a different view. In an interview with the Daily Telegraph on 3rd November of that year he said:
"If a person has been appointed a judge and that trust has been placed in him. I think he should be able to decide what to do if he is approached by the media".
In other words, he is appointed for his judgment and he should be trusted to have the judgment to deal sensibly with the media.
I imagine that the noble and learned Lord would have taken the view—rightly I think—that since the Kilmuir Rules had no statutory basis they ceased to be effective when he gave his interview on 3rd November 1987. At any rate, two years later, on 16th October 1989, in a letter to the then Lord Chief Justice, Lord Lane, which was copied to all judges and full-time judicial officers in England and Wales, the noble and learned Lord replaced the Kilmuir Rules with his own advice to the judges. He wrote that judges themselves should be left to decide whether, and on what conditions, they should give interviews to journalists or appear on radio or television. He recognised that there were cases in which the media in a spirit of inquiry wished to explore matters affecting the legal system so as to secure a wider public understanding of the working of the law, and that the value of such programmes might be enhanced by the participation of judges. He sounded this cautionary note, however:
"The nature of their office makes it necessary for judges to be very cautious about their exposure to the media, and they must avoid public statements either on general issues or particular cases which might cast any doubt on their complete impartiality. Above all they should avoid any involvement, either direct or indirect, in issues which are or might become politically controversial".
And he added this further caveat:
"As a general principle, if a judge, having considered all the relevant circumstances, including such matters as the reputation of the source of the invitation as well as the subject matter of the interview, has any serious doubts about the wisdom of participating, he or she should decline the invitation".
So the judges should follow a principle of "safety first".
He excluded from the new permission, however, "pronouncements by judges on individual cases". He advised:
"When a judge has decided a case or imposed a particular sentence, in my opinion it is not appropriate for him, or any of his brother judges, to discuss it publicly out of court, whether or not the matter has finally been disposed of on appeal".
In my view, the new advice expresses a right balance for today.
I turn to the role of the Law Lords, both sitting and retired, in your Lordships' House. Their expertise in the administration of justice allows them to make an invaluable contribution to our debates on that subject. And sometimes strong language is used. I well
1258
remember the judicial hostility to the noble and learned Lord's Green Paper of January 1989 under which the Government were claiming to decide who should have rights of audience in the higher courts, so leading to a break in the Bar's monopoly. The noble and learned Lord, Lord Lane, then the Lord Chief Justice, thought that the very foundations of our democracy were being destroyed by this proposal. He observed:
"Loss of freedom seldom happens overnight … Oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband. It creeps up insidiously; it creeps up step by step; and all of a sudden the unfortunate citizen realises that it has gone".
I am and was a great admirer of the noble and learned Lord, Lord Lane, and I do not question his right to speak in strong terms on a subject about which he felt so strongly. For myself, it certainly had not occurred to me that the Bar's then exclusive rights of audience in the High Court were of quite that constitutional importance.
Many judges have criticised the Government's insistence on keeping the mandatory sentence of life imprisonment for murder, notably the noble and learned Lords, Lord Lane, Lord Taylor and Lord Ackner, whom I am pleased to see in his place. I have already mentioned your Lordships' debate on 23rd May on the Home Secretary's White Paper.
I am firmly of the view that in relation to the administration of justice, and in relation to sentencing, where the expertise of the judges is obvious, they are well entitled to express their views and seek to influence Parliament. The judges have been vindicated in their criticisms before. The noble and learned Lord, Lord Taylor, strongly attacked some provisions of the Criminal Justice Act 1991 as,
"counter to all principles of good sentencing policy".
Again, the issue was the restriction of the discretion of judges in sentencing. The noble and learned Lord was shortly proved right and the legislation was repealed. I repeat that I see no reason at all why judges should not say that statute laws either will not work or are not working. They have a direct, practical experience of the administration of justice day-to-day which makes their contribution to public debate on that subject of high value.
However, as I have said, it is important to distinguish between what they can argue is unwise; let it be disastrously unwise; and what they can properly claim to be unconstitutional. Just as Parliament is entitled to fix maximum sentences, so it is entitled to fix minimum sentences. Certainly the latter removes judicial discretion but it does not affect judicial independence. The duty of the judges is to apply the law as determined by Parliament; and what judicial independence means, properly understood, is their right not to be subject to any interference with their independence in carrying out that task.
Moreover, many judges spoke out against the Government's cuts in eligibility for legal aid. Also many judges, including the noble and learned Lords, Lord Bingham and Lord Taylor, have publicly called for incorporation of the European Convention on Human Rights. I am less confident about recent extra-judicial statements that if Parliament does not

1259
legislate a law of privacy, then the judges will invent—or perhaps I should say develop—one. This is a hard question. Judges do make law. As Lord Reid once said—you would believe in fairy tales if you thought otherwise. But what is the boundary between legitimate development of the law by judges and what counts as illegitimate legislation by judges? The general understanding of English law is that it does not recognise a generalised right to privacy. Should the judges make one? Only, I would say, if there were a clear community consensus that way. If there is no such consensus—and I am sure there is none—then I say that if the judges invented a law of privacy, they would seem to be taking sides. The result would be to imperil their major asset: their reputation for impartiality. I agree with Lord Reid:
"When there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in".
I say that judges should think hard before they don the mantle of moral leadership through their judgments according to law.
So statements that judges can invent or make a law protecting privacy, where there is no consensus for it, sounds to ordinary people uncomfortably like a judicial threat to legislate. It must be for Parliament to decide whether self-regulation of the press should be replaced by a law of privacy.
Obviously there is a fine line to be drawn between judicial participation in public controversy of a political nature—and the noble and learned Lord's letter of 16th October 1989 advised that,
"above all judges should avoid any involvement either direct or indirect in the issues which are or might become politically controversial".
There is a distinction between judicial participation in public controversy of a political nature and the judges' participation in public controversy concerning the effective administration of justice. The debates about legal aid, maximum and minimum sentences and the size of the prison population all concern the administration of justice. But at the same time they are issues of deep political controversy. For myself, I think that the judges would be wise to confine themselves to controversy about the administration of justice. If they engage more extensively in political controversy, they risk undermining public confidence in their political impartiality. There is a basic tension between judicial engagement in political controversy and public confidence in the judges' political impartiality in deciding disputes according to law.
I hope and believe that today's debate will be significant. I am heartened by the number of your Lordships who have chosen to take part. In these days of high profile judicial review cases and public controversy between Ministers and judges there is understandable public concern. The separation of powers is a crucial but delicate component of our unwritten constitution. Another is the judges' reputation for political impartiality. I have no wish, and see no need, to censor the judges to maintain that reputation. My only plea is for self-restraint by the judges so as to conserve their
1260
reputation for political impartiality in the decisions which they make according to law; and for self-restraint by Ministers when addressing decisions of judges, which have struck down their decisions as unlawful. It is only if that self-restraint is displayed on both sides that the public will have confidence that the separation of powers is alive and well and working. I beg to move for Papers.
3.30 p.m.
Lord Renton: My Lords, I am sure that all noble Lords feel indebted to the noble Lord, Lord Irvine of Lairg, for having raised this important constitutional matter. The relationship between the legislature, the executive and the judiciary has been considered by lawyers, especially constitutional lawyers, for hundreds of years. I like to think that in our country we have got it about right.
I am not in a position to answer every point made by the noble Lord because it was only yesterday, when I happened to see him at about this time of day outside your Lordships' Chamber, that he suggested I should put my name down to speak in the debate. I did not expect to be the one immediately to follow him. However, I believe that he hit the crux of the matter in his concluding passages when he referred to the need for restraint. Let there be freedom of expression in matters of public importance but it largely depends on how that is done.
Before going further, I wish to endorse the tribute which the noble Lord paid to the retiring Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth. I sat at his feet when he was Chairman of the Bar many years ago, and I was an ex-officio member of the Bar Council. I acquired the greatest admiration for him, as did all of us at the Bar.
The noble and learned Lord, Lord Bingham, the new Lord Chief Justice, was born some years after I was called to the Bar. That does not prevent me from having learned a bit about him—second hand, of course—and being in a position to congratulate and welcome him. I also congratulate and welcome the noble and learned Lord, Lord Woolf, as Master of the Rolls. Perhaps I may say in passing that I believe the noble and learned Lord, Lord Denning (who, alas, now in advanced old age is so incapacitated that he cannot take part in today's debate) did a most valuable service as Master of the Rolls. Whether or not the noble and learned Lord, Lord Woolf, believes that he is following in his footsteps, I hope that he will not ignore the great contributions which the noble and learned Lord, Lord Denning, made in his time.
The paramount factor in this important debate is the independence of the judiciary coupled with its impartiality. The judges must be not only independent and impartial but must manifestly be seen to be so. Broadly speaking, no one doubts the independence or impartiality of our judiciary.
Your Lordships' House has the immense advantage of having as Members not only Bishops and Law Lords and ex-Cabinet Ministers, but those who have risen to the top of each of the professions, of industry and

1261
commerce, the Armed Forces, the public service, the Civil Service and the arts. In my opinion, none of those eminent people ought to be muzzled when speaking in your Lordships' House.
Members of the higher judiciary in this House are free to give our democracy the benefit of their most valuable experience, in particular when changes in the law are proposed by the executive or are thought by public or judicial opinion to be necessary. Therefore, I did not blame the noble and learned Lord, Lord Taylor of Gosforth, for giving us the benefit of his opinion on the White Paper, whether or not we agreed with him. I do not suggest that we should have a further debate like the valuable short debate on 23rd May to which the noble Lord, Lord Irvine, referred. However, I must mention a feature of the debate which was not touched upon but which is vital to the subject of today's debate. It is not the question of whether judges should be required by Act of Parliament to send to prison perhaps for life offenders who have committed more than two serious offences. The problem is that for years there has been an assumption, even among some members of the judiciary, that prison sentences deter crime; that serious offenders deserve to be sent to prison anyway; that they will benefit from it; and that they may be cured and deterred from committing further offences. Alas, that does not always happen.
I speak having been in the Home Office for four-and-a-half years with the late Lord Butler of Saffron Walden and during much of that time responsible for the prison system. I can say that prisons are universities of crime and we cannot get away from that. They are and for years have been so overcrowded that prison officers find it difficult to practise the art of redemption. As a result, the success rate—that is, the proportion of former prisoners who commit no further crime after release—is still too low. Reconviction rates vary with age; but, even among those who have been in prison a number of times and who one would have thought would have had enough, according to 1994 statistics 45 per cent. come out and commit serious offences.
Therefore, the assumption that some prison sentences should be automatic is, perhaps I may say with deep respect, doubtful and to that extent one sympathised with the noble and learned Lord, Lord Taylor. However, discussions have overlooked the fact that the Home Secretary proposes that in exceptional circumstances judges need not send people to prison after three or more serious offences—sometimes for life—so in that way judicial discretion would be preserved. I hope that I may be forgiven for going over that part of the ground again but it is necessary to bear that fact in mind.
If judges today, with their knowledge of all the circumstances of the offence, the offender's previous record and character and with such knowledge as they manage to acquire of what happens in prisons, decide to keep people out of prison if that can be avoided I should be the last to blame them. The position can be summed up as follows: Parliament must give enough power to the judges to ensure that crime is reduced as well as enough power and discretion to ensure that justice is
1262
done. However, judges must be free—at any rate, those who are Members of your Lordships' House—to make their views known in the light of their experience.
I turn to one or two issues which were raised by the noble Lord, Lord Irvine of Lairg. I am not sure whether I am right to call him "learned" and perhaps being on this side of the House I do not look forward to having to do so. He is right to say that the public should be confident that judges are not subject to ministerial pressure. I must say that I do not believe that the judges have been so subject.
My noble and learned friend the Lord Chancellor, if I may say so, is a paradoxical denial of the separation of powers. He has judicial duties to perform; as a member of the legislature, he presides over your Lordships' House; and he is a Member of the Cabinet. He manages to combine those duties admirably, as did his predecessors, without giving rise to any conflict of the kind which the noble Lord, Lord Irvine, mentioned.
Reference was made to earlier times when Lord Kilmuir and others tried to lay down a rule that judges should never express their opinions except when giving their decisions in court. That is a good general rule. But the senior members of the judiciary, like the Lord Chief Justice and the Master of the Rolls and noble and learned Lords who are members of the Judicial Committee of your Lordships' House, so long as they exercise restraint and do not appear to be politically motivated, should have a degree of freedom of speech.
3.42 p.m.
Lord Rodgers of Quarry Bank: My Lords, I join with the noble Lord, Lord Renton, in welcoming this debate. We are all most grateful to the noble Lord, Lord Irvine of Lairg, for raising matters here which he raised previously last October in a seminar for lawyers.
He is right to bring the issues here, both because this is one of the two Chambers of Parliament and I should like to think because some of us, perhaps very few today, are not lawyers. I speak as somebody with no experience whatever of the law but as one who for 25 years has served in the legislature in one Chamber or another and for a period of 11 years in part of the executive branch as a member of a government.
I listened with very great care to the noble Lord, Lord Irvine. I felt that there was a message of good will towards the judges wrapped round a gentle but clear warning. I hope that he will not mind me saying, because my mind was running very much in the same way as that of the noble Lord, Lord Renton, that he spoke as much today as a member of a government in waiting who hope to be, within a year, sitting on the other side of the Chamber as a distinguished member of the Bar and a distinguished Member of this House.
Looking back and recollecting now in tranquillity those years in government, I must say that I have no doubt whatever that all governments abuse power, either through inadvertence, impatience or arrogance. If the balance of our constitution needs to be redressed, it is against the executive. If the legislature cannot do that or fails to do it, then inevitably, in one way or another, the judiciary will do it.

1263
It is perhaps an axiom that good lawyers almost always make bad politicians. In that respect, the need for judges not to become involved in unnecessary public dispute is one which I support. But as I say, if the balance is to be corrected, it needs to be corrected by both Chambers of Parliament and by the judiciary in their different ways seeking to redress the balance against the executive.
I hope that I shall not upset the noble Lord, Lord Irvine, by reminding him of a debate which we had almost exactly a year ago. It was a debate on the conditional fee agreement order. An amendment was tabled in the name of the noble and learned Lord, Lord Ackner. I had no formed view of the matter and so I listened to an extremely eloquent speech by the noble Lord, Lord Irvine of Lairg. He persuaded me to support the amendment and I went into the Lobby accordingly.
But I must remind the noble Lord that he was not there and nor were most members of the Opposition Front Bench. The amendment was lost by 100 votes to 105. I was extremely concerned about why that should be the case. I learned afterwards that the Opposition were scared that voting for an amendment, an amendment which they strongly supported on its merits, could embarrass them when they were in government if the new Opposition did likewise on a statutory instrument.
I mention that because I believe that there is something in common in the thoughts behind the decision made a year ago and the failure of the noble Lord to vote at that time and his remarks today, though for a very large part, I agree with them. But to fail to vote on that amendment a year ago was irresponsible. First, it is always dangerous to presume that one will be in government because it tempts fate; and secondly—and this is most relevant to our discussion today—it is the duty of us all in this House to judge issues on their merits or according to our loyalties and then to use the procedures properly available to us. If we in this Chamber and those in another place neglect those opportunities, it is inevitable that, in one way or another, the judiciary will fulfil a larger role as a check on the arrogance of the executive which is sometimes the case.
My view is simple: that Britain would be governed better if the legislature and judiciary, in their different ways, exercised their powers to the full, particularly in the protection of the citizen, even if that irritates and angers the government of the day. We may spend a great deal of time debating the shortcomings of the legislature: the extent to which the House of Commons, elected under the present system, is unrepresentative of the opinion of the nation; the case for reforming your Lordships' House while maintaining its diversity and freedom of expression; and particularly the stultifying effect of a rigid party system, especially in another place.
My view is that it would be better for this House and for the noble Lord, Lord Irvine of Lairg, right though it was for him to raise those issues today, to give his mind to how best to reform the legislature as a check on the
1264
actions of the executive rather than worrying too much at this juncture about the actions or words of the judges. The duty of the judiciary is to protect the rule of law. The degree of intervention in what might be seen to be public controversy may ebb and flow. But everything considered, I believe that in recent times—in the past 30 years—it has seldom or much over-reached itself.
The noble Lord, Lord Irvine, referred to judicial review. I understand that in 1976 there were 500 applications for judicial review and that in 1993 there were 3,000. I do not have later figures. Of those 3,000 applications, about one-half go forward and one-quarter of those are allowed; that is, 236 in 1993. That does not seem to me an excessive number, especially as some do not relate to decisions of government or statutory bodies but to other bodies which are performing a public function.
I am chairman, although I do not speak as such today, of the Advertising Standards Authority which is the consumer protection arm of self-regulation in the non-broadcasting advertising media. It operates in the public interest and it is the consumer protection arm of a self-regulating system. It is a small organisation of modest resources and it is non-statutory, but it is subject to judicial review.
There have been times during my tenure of the chairmanship that I have been irritated, even angry, by what seems to me the easy access to judicial review of those who might disagree with the decisions of my authority. But I believe it to be right. If it is right in that sector where some large organisations with greater resources can call on judicial review of the decisions made by my organisation, how much more so is it right that judicial review should not be inhibited in any way in dealing with matters of government?
As the noble Lord, Lord Irvine, said, the judiciary today is a great deal more open than it was once upon a time. We owe much to the noble and learned Lord, Lord Taylor of Gosforth, the former Lord Chief Justice. Much of the unnecessary mystique has gone. We would not pretend—indeed, I would certainly not do so—that judges can do no wrong. They certainly make fools of themselves from time to time and they also show their prejudices. But, on balance, the role of the judiciary at present in relation to the executive is about right. I see no current fear of judicial "supremacism". There is far more to worry about concerning the balance between the legislature and the executive.
As I said, I welcome today's debate. I do not share the view of the noble Lord, Lord Irvine, that judges are losing the public's confidence through their failure to exercise impartiality. But they would lose it if they failed to apply the same rules to the decisions of an incoming government as they have applied to those of the present one. If that is the fear of the noble Lord, Lord Irvine, I do not share it.
3.52 p.m.
Lord Wilberforce: My Lords, the noble Lord, Lord Irvine of Lairg, introduced a very large and wide-ranging subject, but also one of great importance. It has been a great opportunity for this House and for

1265
noble Lords to hear his own views on this very important matter which he developed with great expertise, as one would expect, but also, if I may say so, with great moderation.
For my part, I propose to limit my few observations to the less exciting part of the noble Lord's Motion—that is to say, not that relating to controversy with Ministers, but with judicial review. I do so because I wish to concentrate more on what judges are doing rather than on what they are saying. It may be duller, but it is just as important.
The questions that I want to put—and they were really posed by the noble Lord in his opening speech—are: has judicial review of administrative acts by the judges got out of hand? Are the judges straying (to borrow the noble Lord's words) beyond their constitutional role? Are the judges exercising a political function in judicial review, or are they not? Those are the questions that I believe we must face. If, like me, any noble Lords prefer, when reading a novel or detective story, to look to the last page first, perhaps I may tell your Lordships at once that the answer that I shall try to give to those questions is no.
As your Lordships know, judicial review is a developing subject. Indeed, it has been moving all the time and has existed for many hundreds of years. However, in its modern form it dates from the judicial decision of this House in 1968 in Conway v. Rimmer. Ever since then it has been on a path of expansion. There has been a great extension of matters which can be reviewed: from by-laws or decisions of justices to decisions of the biggest enterprises, of administrative organisations, of Ministers and Secretaries of State right up to high profile matters—indeed, not little questions of administrative law.
There has been a great extension of the grounds upon which the courts seek to question administrative acts or to examine them ranging from improper purposes, ultra vires acts to neglect of relevant considerations, irrational decisions, and zealous applications of rules. All that has taken place under judicial decision, without any assistance at all—and I should like your Lordships to register this fact—from Parliament.
There have been a number of reports from the Law Commission on the subject invited by the Lord Chancellor of the day. We had one in 1969 on administrative law generally. There was a debate in this House, although I do not remember the exact date—the noble and learned Lord, Lord Hailsham of Saint Marylebone may remember it because he has a better memory than I do—on the question, partly, of whether there ought to be some statement by Parliament of the substantive grounds for interference with and controlling administrative acts. The noble and learned Lord was against that at the time and, in due course, another line was taken.
The noble Lord, Lord Rodgers of Quarry Bank, signalled the year 1976 as being an important one in the history of judicial review. Indeed, in that year the Law Commission produced another report which resulted in a change in the rules of court. It swept away all sorts of antiquated rules which had tied the hands of
1266
courts for many years. That was a very beneficial reform put before the House by the noble and learned Lord and which was carried. The judges were left to develop the substance of the law without parliamentary admonition or parliamentary control. Little wonder that the judges were a bit enthusiastic at times about that great tool which had been put into their hands. Perhaps I may translate from the Latin: it is the function of a good judge to amplify his jurisdiction. The judges certainly took advantage of that.
I should just like to remind your Lordships that we are not alone in the field. We are not an excrescence, as it were, on a generally acquiescent world of legislative measures. All other countries in Europe have very substantial systems of control of administrative acts and control over the Executive. They all have a body of administrative law and they all have a system of administrative courts. That fact was brought home to me very vividly in 1945 when I went, in uniform, into Berlin to control that great city and the western zone of Germany. Our headquarters were situated in the Supreme Administrative Court—the Oberverwaltungsgericht. It was a most splendid building; indeed, there was nothing like it in this country. It consisted of storey after storey with lifts and every kind of facility. As I said, there was nothing of that sort in this country.
In every other country there is a right to challenge legislation either in formation or after it has been made. Of course, that right to challenge legislation is linked very closely with the existence in every case of a written constitution which sets down the ground rules within which challenges can be made. It is very interesting to note that the only other western country which does not have a constitution, along with us, is Israel. Very much like this country, Israel is experiencing great difficulty in formulating the rules according to which judges ought to supervise and control administrative acts. There is a lesson for us there, or, at any rate, an explanation of what is sometimes thought to be our weakness—the vagueness of the jurisdiction of the courts and the risk of excess—because we do not have a written constitution setting down the ground rules.
There is one other point worth mentioning when one is trying to appraise the value of judicial review in this country; namely, that we have a much better system of examination of administrative acts in process. We have the right to challenge decisions before they take effect to a very great extent. We have the right to challenge a decision at public inquiries. Indeed, that is very extensive as we know to our cost in the Channel Tunnel exercise. We have very extensive consultation of interest groups—almost too much, some may think, at one time. We have very much more powerfully organised interest groups than any other western country. They are given a very strong position of consultation while administration is being formed. We also have very great accessibility to public officials and, in modern times at any rate, some loosening of the constraints of secrecy.
These are all factors which one has to bear in mind when considering the force and effect of judicial control of administrative acts. But given all that, since 1968 there is no doubt—I am entirely in agreement with the

1267
noble Lord on this—that there has been a large expansion of the sphere of judicial interference. There are several clear reasons why that has taken place. First, a mass of legislation now emerges from Parliament, some of it ill thought out, ill phrased and ill digested, and which often gives extensive powers to legislate by regulation. Judges have to cope with that and to criticise it to a greater extent than was ever the case in the 19th century.
Secondly, there are the vacua which are left in legislation which sometimes judges are called upon to fill. On this point, I venture respectfully to differ from the noble Lord. It is the only point on which I differ from him. I think that privacy is one of those areas where it may be appropriate for judges to take a hand, as it were. Parliament has consistently refused or been unable to deal with that matter. It is a consistent and growing difficulty and no doubt with sufficient caution—I say this with great care in the presence of the noble and learned Lord the Master of the Rolls—the courts may find it necessary to define in some way the limits of privacy of an individual in this country, if Parliament will not act.
The third factor which has caused the expansion of judicial review is the considerably greater public demand for limitation of executive powers. The public are much more expressive. They are informed by newspapers of what is taking place, and grievances are much more heavily highlighted in the press. The demand for control, in suitable cases, of executive excesses has grown. I do not hesitate to say that judges have become much more outward looking and much more concerned with social needs and social imperatives. Where are we now, that being the picture? Is there need for corrective action? I was glad to hear the noble Lord say that he was not in favour of legislation constraining the process of judicial review. I am entirely in agreement with him on that.
What else could be done? We could have a written constitution. I do not spend much time on that because it is unrealistic. It is not so unrealistic perhaps to presuppose the introduction of a Bill of Rights, whether the European Bill of Rights or any other. However, we have to face up to the fact that if we bring the European Convention on Human Rights or any Bill of Rights into operation, that will extend the power of judges and not restrain it because judges will be called upon to give interpretation to all sorts of vague expressions which are inevitably used in Bills of Rights, and which are found in the European Convention and which are really policy decisions. Judges will be compelled to decide these questions—for example, questions about the right to life, the right to privacy, freedom of expression and many others that are scattered about us. Judges would have to deal with those questions if that were made part of our law.
What rests apart from that? There is restraint. Everyone would join with the noble Lord in his appeal for judicial restraint. I am entirely in agreement with him on that. I do not take much alarm at some of the excursions—either judicial or extra-judicial—which have occurred in recent times. There have been attempts
1268
to play with Continental ideas such as proportionality or legitimate expectation and others which have not yet taken root in this country. Some judges are perhaps inclined to toy with them, but I believe—and generally in relation to development, and perhaps enthusiasm—that we can safely trust the Court of Appeal and the House of Lords to prohibit any possibly dangerous growths.
Indeed, I think it is right to say that following a period of enthusiastic expansion of judicial review since 1968 there are signs now of a rather more cautious attitude in the higher courts, in the Court of Appeal and in your Lordships' Appellate Committee. They are alive to the wisdom of not letting a valuable instrument of control get out of hand. We need to keep a continuous watch on what is called the standard of review—that is a technical expression which I shall not expand upon—to be applied to administrative acts. We need perhaps to allow ourselves greater comparative studies to see what other countries are doing. Perhaps we need to consider setting up not an administrative court but the enlistment of specialist judges to handle this delicate matter.
As to that other question of the supremacy of Parliament, that is simply another health scare based on exploratory, extra-judicial utterances. As regards the law, what Lord Reid said in Madzimbamuto in 1969—the noble Lord quoted the passage from that judgment—and what Lord Wright said in Liversedge v. Anderson is written in stone. There is no question of that being eroded by anything that judges do or are likely to do. Let us not lose our nerve. Let us keep to the path the judges have shown they can tread in the past.
4.5 p.m.
Lord Mishcon: My Lords, from these Back Benches I thank my noble friend Lord Irvine of Lairg for making possible this interesting constitutional debate. I thought his speech was quite outstanding and showed that he had (I thought meritoriously) given a great deal of thought to the matters which might be his responsibility in future years. I can well understand why the noble Lord, Lord Rodgers, did not find it necessary to take the same line!
We are singularly fortunate in our judiciary. If I may say so at once, I thought that that was very much the theme of my noble friend's reference to the judiciary. I apologise for again mentioning the name of the noble Lord, Lord Rodgers, but I did not recognise what was supposed to be a paraphrase of my noble friend's remarks, as I did not find it a paraphrase at all; I found it an inaccurate account. I say that we are fortunate in our judiciary not only for the character of most of our judges but also because of the sacrifice—we often forget this—that a leading Silk makes when he accepts the great honour of judicial appointment.
These days that appointment is usually given to people in their early 40s. Considerations of trying to look after dependants when one is on a full pension, which is only earned after 20 years' service, obviously account for the fact that our judges are now appointed at such an early age. That is the very time when our leading lawyers, whether they be banisters or—at the

1269
better end of the profession—solicitors are at their peak. I repeat that it is with a material sacrifice that so many of our leading lawyers accept judicial appointment.
It has been said many times—not just in this debate but frequently in your Lordships' House—that the independence of the judges is our pride and glory. If we erode it, we are lost. I take the liberty, arising out of that, to ask whether we are sufficiently safeguarding the independence of our judges for future generations. The noble Lord, Lord Renton, in his eloquent speech—delivered, as he told us, almost as a surprise for himself, but it was a pleasant surprise for us—mentioned, as I understand it, that the noble and learned Lord the Lord Chancellor had a dual existence with which he was coping in spite of its difficulties; namely, the Lord Chancellor the politician, and the Lord Chancellor, the head of our judges and our judicial system. It is no empty compliment, but a belief sincerely held by all sections of your Lordships' House, that that duality has been remarkably well served by the noble and learned Lord who sits at present on the Woolsack.
But what about the future? As I understand it—I shall be corrected if I am wrong—the chief judicial appointments are made on the recommendation of the Lord Chancellor, but are submitted to the Prime Minister of the day. The noble and learned Lord, Lord Hailsham, will correct me, as he always does when I go wrong (and that is quite frequently), but in his day it was his habit to submit two or three names to the Prime Minister in order of preference, with a comment which justified that order of preference. It was not always the first preference that was chosen. I believe that I am right in saying that that might be the experience—again I shall be corrected if I am wrong—of the noble and learned Lord the Lord Chancellor. If we are speaking about the separation of powers and the independence of the judiciary, is it right that it is ultimately a Prime Minister who decides who are to be our chief judges? It is a matter which ought to be considered not because of difficulty at this moment but because of the difficulty that future generations may have to face.
As regards appointments, I was pleased to hear, and wish to be associated with, the congratulations extended to the noble and learned Lord, Lord Bingham, and the noble and learned Lord, Lord Woolf. The noble Lord, Lord Renton, uttered the mystical name of the noble and learned Lord, Lord Denning. He hoped that the noble and learned Lord, Lord Woolf, would follow in those masterly footsteps. I hope that he will do it in one respect, and, knowing him as I do, I have no doubts. I refer to the sense of humour of the noble and learned Lord, Lord Denning. It was with the greatest joy and pride that he would tell of the letter he received from an engineer in Pakistan congratulating him on his appointment. The engineer enclosed a curriculum vitae and said, "Now that I know that you are Master of the Rolls, would you please get me a job?" The appointment is an honour to the Bench, but with deep regrets that the noble and learned Lord, Lord Taylor, had to retire early in his period of office. I believe that all of us would
1270
wish to send him our good wishes and tell him how much we miss him from our deliberations at the moment.
Noble Lords: Hear, hear!
Lord Mishcon: My Lords, I have discussed whether or not the independence of the judiciary has been preserved for all generations having regard to our method of appointment. Perhaps I may deal with a subject which has been discussed; namely, whether, if a Minister decides to promote a Bill in the House, it is proper for our judges to comment on it, especially if the comments are adverse. In all our affairs, with our unwritten Constitution we rely upon common sense. I know that I shall be forgiven for saying that it is not really common sense for a Minister to promote legislation which limits the discretion of our judges. Having said that, I at once agree with my noble friend Lord Irvine of Lairg that constitutionally it is quite right to do so. Parliament is sovereign. However, when looking up an old debate, I noted that the noble and learned Lord the Lord Chancellor saw fit to read to noble Lords present at that time a letter written by the noble and learned Lord, Lord Taylor, to The Times. At col. 791 of the Official Report of 27th April 1994, the noble and learned Lord said:
"My noble and learned friend the Lord Chief Justice, in a letter to The Times of 8th May"—
that was 8th May, 1993—
"put that in a way which I should like to refer to. It was in connection with a sentence that had been before the court. The letter is dated 8th May 1993. The Lord Chief Justice is the writer.
"'Sir, You print today an account of the case in the Court of Appeal yesterday in which the Attorney General's application to have an unduly lenient sentence reviewed was granted and the sentence was increased. The headline read: Lord Taylor Ignores Act to Increase Jail Sentence. The report went on to say: "The Lord Chief Justice over-ruled the sentencing provisions of the Criminal Justice Act yesterday when he increased a jail term on a motor cyclist …". Those assertions were wholly wrong. The judgment of the court, as anyone who listened to it would readily have realised, explained how and why it was possible and appropriate for the court, within the terms of section 29(2) of that act, to take into account the circumstances of previous offences because they showed an aggravating factor in the instant case. I do not ignore acts of Parliament. To suggest the contrary is not only wrong but a gross libel. I am therefore glad that you have agreed to publish forthwith a retraction and apology as well as this letter. It is true that I have made it clear I consider the 1991 act to be flawed in a number of respects. I support the broad philosophy which inspired it that a custodial sentence should be imposed only where the seriousness of the offending merits it or the protection of the public demands it. But a number of provisions in the Act place arbitrary and unworkable restrictions on the discretion of the judge to deal with each case on its merits. I hope that these defects can be cured in the very near future'".
The noble and learned Lord the Lord Chancellor goes on to say this:
"But this is the quotation which I wish to emphasise, and with which the noble and learned Lord the Lord Chief Justice concludes the letter: 'However, until they are, it is my duty and that of all the judges to apply the law as Parliament has enacted it. That duty we will fulfill'".
I do not think that there can be any doubt, therefore, as to what the noble and learned Lord, Lord Taylor, felt about the sovereignty of Parliament, nor about the right of judges to warn, to criticise, and to plead for liberty

1271
as regards legislation which they regard as being harmful in carrying out their duties in both civil and criminal matters. That liberty is as a rule very carefully and studiously adhered to with propriety.
I repeat that this has been an interesting debate. It has thrown up issues which we have discussed before. Nothing very novel has emerged, but there is one thing which we can conclude. I started with it and I shall finish with it: we are lucky in the judges whom we have.
4.20 p.m.
Lord Woolf: My Lords, I was very much in two minds as to the advisability of my taking part in the debate this afternoon, just over 24 hours after donning new clothing—not sheep's but, as noble Lords have heard, as Master of the Rolls. There are two reasons why I decided to do so, although having heard the debate so far this afternoon I fear that my intervention will not be of great assistance to your Lordships.
The first reason is the importance of the question which my noble friend Lord Irvine of Lairg has raised before your Lordships. It is one of constitutional importance and one which calls for great sensitivity on the part of the legislature, the government of the day, and particularly the judiciary. It raises issues on which no doubt the new Lord Chief Justice would have been happy to address the House, if he had not been prevented from doing so since he has not yet had an opportunity to be introduced to your Lordships' House.
The second reason is one which will no doubt interest the noble Lord, Lord Renton. I received a letter of congratulations signed "Tom, 97 and-a-third". The "97 and-a-third" reflected the age of the author. It came from no ordinary Tom, Dick or Harry, but from the noble and learned Lord, Lord Denning, the distinguished past holder of my present office. In that letter, the noble and learned Lord reminded me that we had both made Hamlyn Lectures, but some 40 years apart. The noble and learned Lord gave the first of those lectures, "Freedom under the law". In his letter he referred me to the final paragraph of his lecture, of which I was well aware, which includes these eloquent words:
"Just as the pick and shovel is no longer suitable for the winning of coal so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery'".
In that passage, in 1949, the noble and learned Lord, Lord Denning, was referring to the importance of establishing the present role of the courts on judicial review—a subject to which I shall return briefly later.
In this country we are fortunate in having a constitution which is truly unique. One of its unusual features is that it is unwritten, but, as noble Lords have heard from the noble and learned Lord, Lord Wilberforce, it is not unique in that regard. There is the other jurisdiction to which he referred which is in the same position, and in New Zealand there is a similar situation. But we are unique, first, in relation to the roles of the Lord Chancellor, to which reference has already been made. Secondly, we are unique in that members of our supreme appellate court are able to take part, as I do this afternoon, in the deliberations of your Lordships'
1272
Chamber and, of course, also in your Lordships' Committees. The ability of Law Lords to take part in such deliberations is something which I hope your Lordships value. It continues to exist only because the noble and learned Lords who sit in the Appellate Committee exercise the restraint to which your Lordships have rightly drawn attention as a necessary concomitant to their having that ability.
We have a great advantage in enabling those who have the responsibility for interpreting and applying the law to give advice, to the House when it is appropriate, on matters of which they are knowledgeable as a result of their experience.
Another role which our constitution places upon the judiciary which is not unique but is unusual is the extent to which the judiciary are invited by the government of the day to take part in inquiries on behalf of the Government and usually to conduct those inquiries on the Government's behalf. That is a role which the judiciary do not seek but which is thrust upon them. But they accept the responsibility for doing so because they recognise that it is thought that it is in the public interest that they should do so.
However, the fact that a judge is given that task creates problems for those who have the responsibility of conducting the inquiry. They are sometimes inevitably drawn into positions of public debate. They are sometimes drawn into situations of political debate. That is unfortunate, but we are in the position that either we dispense with what I regard as an important public service by the judiciary or we accept the consequences which flow from it. We cannot have it both ways. I say to your Lordships that restraint needs to be exercised, not only by the judiciary in making comments as a result of such inquiries, but also on the part of those, either in the Executive or in the legislature, who are desirous of criticising the judge who is responsible for making the contribution.
The reference by the noble and learned Lord, Lord Denning, to his Hamlyn Lecture drew attention to the fact that before the Kilmuir rules, indeed, before the statement of the present noble and learned Lord the Lord Chancellor, it had been the long-established practice of members of the judiciary from time to time to give lectures. Again, I suggest that this is a desirable and constructive practice, something from which the public benefits because it contributes to the development of the law. In relation to constitutional issues, it can inform the debate because of the advantage of the judiciary's experience in relation to the subjects in question.
If that practice is to continue—and I suggest we would all be the poorer if it did not—it is very important that what the judiciary say, often to learned audiences and to specialist bodies, should not be taken out of context. If my noble friend Lord Irvine of Lairg will forgive me in this respect, I would say that he was in error in focusing upon one or two lectures and extracting from those lectures a sentence here or there which did not give a true representation of the content of the lecture as a whole. The fact of the matter is that there are areas of the law where it can be genuinely and fairly

1273
said that our laws at present are not serving the public in the way that they should. In that situation it is the strength of the common law that it can develop and extend in a way in which it has in the past, and in which I hope it will continue to do in the future, to make up for those deficiencies.
The Law Lords themselves now have the power to set aside decisions given in the past by which they no longer feel the public are served. If their Lordships can do that in the Appellate Committee, surely it cannot be objectionable in the course of a lecture to identify an area of the law which many would say needs re-examination and suggest that, in the course of the ordinary development of the law on a case-by-case basis, a change might take place. In doing so, the judge is not seeking in any way to interfere with or abrogate the sovereignty of Parliament.
We have been reminded of the words of the noble and learned Lord, Lord Taylor, the former Lord Chief Justice. I venture to say that every judge of whom I am aware on the High Court Bench, the Circuit Bench or in the Appellate Courts would agree with everything that he said. No one would say that any legislation that we can contemplate having been passed by our Parliament would not be honoured both in the letter and in the spirit by the judiciary of today.
The comments that are made in the course of a lecture must be seen in the context in which they are made. When they are seen in that context it is beneficial, not a disadvantage, that a judge should express his views. I dissent from the suggestion that it is only the higher judiciary who can be trusted to make comments of that sort in the course of a lecture.
Finally, I turn to the question of judicial review. We heard from the noble and learned Lord, Lord Wilberforce, a masterly examination as to the way in which that subject has developed extensively over the 40 years or more that have elapsed since the noble and learned Lord, Lord Denning, gave that lecture. Judicial review is the means by which the courts enforce the will of Parliament, not the contrary. What the courts are doing when they hear an application for judicial review on a case brought before them by a member of the public or some institution is ascertaining whether the public body concerned has acted in accordance with the law as laid down by Parliament. If the public body has not performed a duty placed upon it by Parliament, then the courts will intervene and order the public body to perform that duty. If the public body has acted in a way which is beyond the powers given to it by Parliament, the courts will remove the decision that results from that action and quash it, because it has acted unlawfully. If the public body has not gone about the process of reaching its decision in accordance with the requirements of Parliament, again the courts will intervene. In this way the courts do not act inconsistently with the will of Parliament, but support the will of Parliament.
As we heard from the noble and learned Lord, Lord Wilberforce, the law has developed in relation to judicial review without the direct intervention of Parliament. But Parliament has endorsed the machinery
1274
of judicial review; it did so in the Supreme Court Act 1981. Since that time, the Law Commission has looked at the way in which judicial review is working and, on the whole, has reached the conclusion that it deserves a clean bill of health.
Judges do act with restraint in relation to judicial review. Judicial review is a singular procedure, because it is surrounded by safeguards for the Executive to ensure that it can properly perform its function. The courts hesitate before interfering with the decision of the Executive. But if the decision is unlawful they have no alternative. They would be failing in their duty if they did not make use of the powers that Parliament has said they should have; namely, the remedies given to them by the Act of 1981.
Speaking for myself, I hope that the courts will continue to dismiss applications for judicial review where the action concerned is lawful, but that they will not hesitate to intervene, no matter who is the applicant, if a public body has acted unlawfully. I am grateful to your Lordships for hearing me.
4.36 p.m.
Lord Kennet: My Lords, I am only the second non-legal Member of the House to speak in the debate. As such, perhaps I may hope that I speak for the whole House in congratulating the noble and learned Lord, Lord Woolf, on the cogency and force of his first intervention in this House as Master of the Rolls. As well as being a Member of this House for 36 years watching life go by, I have served both as an official and a Minister in the executive. But, as I say, I have no legal experience whatever.
Within our sovereign constitutional edifice cohabit the three powers that the French political philosophers of the 18th century saw as such a healthy tripod in this country; namely, the legislative, the judicial and the executive. That is also the separation that the framers of the American constitution sought to produce in written form. Ever since, new or renewing countries have incorporated that separation in their written constitutions, right down to Russia a couple of years ago.
But our constitutional arrangements include many historical idiosyncrasies. Our lower House is democratically elected—more or less; it is many years since the Government had the majority of the voters behind them. Our upper House is, quite unusually, not only part hereditary but gives house room to Bishops of the established Church, leaders of other denominations ennobled for the purpose, the top judges, and nationals of several other countries. So we have the top of the judiciary in this House and the top of the executive in the other House.
Thus, today, the powers are not separated. The executive is not a distinct, free-standing leg of the tripod, as it is for instance in that elective monarchy, the United States. Here, the executive now emerges directly from within the elected Chamber of the legislature where previously it emanated directly from the monarch. That leads to constitutional confusion—the subject of our debate today— because the executive has been

1275
attempting to seize and misuse Parliament's democratic credentials for its own, now often unconstructive, purposes.
That confusion has licensed the repeated and sometimes successful attempts by the present Government to introduce retrospective legislation and Henry VIII clauses and Bills so badly drafted that we spend days examining the Government's hundreds of amendments to their own Bills. The noble and learned Lord, Lord Hailsham, a few years ago famously used the phrase "elective dictatorship" to alert us to the vulnerability of our position and to the scale of the damage we might suffer.
This very day we have that "dictatorship" on full display with the executive's announcement that it intends, regardless of the lawful procedures of this House, to enact the privatisation and commercialisation of the Civil Service Recruitment and Assessment Services. It seems in fact to be tending towards a kind of unicamerality. And all that it is able to do because we have no written constitution. We still seem to be rather proud of that. But any society which chooses to live without the certainty of law can only rightfully do so as long as no harm results. We are now living without a part of that which the rest of decently governed humanity regard as necessary law: the coherent constitutional law that ought to govern all the other parts. Unlike others, we have no administrative court—as the noble and learned Lord, Lord Wilberforce, wisely reminded us—to thwart the executive when it steps outside its role. We have no constitutional court either, to strike down Acts that the executive has succeeded in whipping through the legislature when they conflict with the constitution. The suggestion that we might have such things may strike tenor into untravelled souls. But does anyone who knows France or the United States believe that they are any the worse off for having those elementary precautions against "elective dictatorship"?
We may perhaps already have something to which we could turn to preserve our ancient laws and freedoms. We have the oath the Queen took at her coronation by which she is solemnly bound and from which no one in the United Kingdom has released her. At her coronation the Queen swore to govern us,
"according to [our] respective laws and customs".
Certainly, among our reputed "customs", if not our actual laws, is precisely that invaluable and widely admired tripartite division of the powers.
Since the Queen's Ministers exist to execute the power that was once her predecessors'—power wrested from those predecessors by the people in the 17th century—and since Ministers and the Government constitute her Government, it must follow that they are bound by her oath. I was particularly glad last week to see Sir Frederick Lawton—a much respected and now retired Lord Justice of Appeal—quoting the Queen's coronation oath, though another part of it, to the same effect. He wrote in a letter to The Times that the judges, in their dispute with the Home Secretary,
"regard themselves as the Queen's delegates to perform the part of her coronation oath whereby she undertook 'to cause law and justice in mercy to he executed in all [her] judgements'".
1276
Those are the words in the oath which bind the judiciary. The words in the oath which bind the executive are those with which she promised to govern us,
"according to our laws and customs".
And her Ministers must regard themselves as her delegates to perform that part of her coronation oath.
The question arises: if that oath is, as it surely must be, binding on the executive, who, in the absence of constitutional and administrative courts, is to judge whether and how well it is being kept? The Government today intensely dislike judicial review because, some Ministers claim, it enables the judiciary to restrict the sovereign rights of Parliament. In fact it does not do that, as has become clear in this debate. On the contrary, it is a means whereby the judiciary examines whether the executive—the Ministers themselves—have properly respected the will and the Acts of the legislature and whether or not they are breaking, by their executive acts, the laws which Parliament has, usually at the behest of that same executive and often under threat, made.
The judiciary is part and parcel of our customary system of internal sovereignty—"the Queen in Parliament". It is one of the three separate but symbiotic powers, and it is a capricious and self-serving contention that it should not have the power to preserve the authority of the legislature over the executive.
On executive matters, the Queen is, of course, advised by her Prime Minister who is bound by her oath. On judiciary matters, she is advised by her Lord Chancellor who is also so bound. The press has been telling us—it was alluded to earlier—that not all Ministers were happy with the Lord Chancellor's recent appointments to the judiciary. The possibility therefore arises of the executive Prime Minister and the judicial Chancellor disagreeing about some larger matter. If that were to happen, ought the Queen simply to take her own counsel? I think not, but as this Government increasingly, and quite unprecedentedly, insult our laws and customs, the question deserves examination. Given the division of the powers that our system in theory used to embody, how has the "elective dictatorship" come about and what redress do we have?
It has come about because of the conflation within the House of Commons—a subset of the legislature—of the legislative power with the executive power which now emanates directly from it. The executive now regularly seeks full control of that part of the legislature and often achieves it. But that democratically elected part of the legislature is not only not the Queen's; it is not the executive's either. It is the electorate's, and it alone democratically represents those whose laws and customs the Queen's coronation oath binds her to protect.
The House of Commons' democratic glory today is horribly tarnished. Members of the judiciary have, at the executive's request, made that only too clear. We do not—thank God—have sleaze, as the current mix of corruption and mendacity has come to be called, in the judiciary. But we do have it in the executive, as Scott showed, and in the legislature, as Nolan showed. The electorate does not care for the sleaze which members of the judiciary have uncovered and displayed.

1277
If the Government were to try to prevent or limit judicial review of ministerial executive action or to wriggle away from Scott or Nolan, that would quite specifically be an insult to the electorate and to the House of Commons it elects. The legislature clearly has the right to insist that executive behaviour is properly examined and by now judicial review is customary, even if all its limits are not yet quite hard-edged.
It is not now unimaginable that some members of this Government—of the executive and of its friends—should wish to squash this still rather new custom. They might even obtain a majority in the House of Commons. What would the Lord Chancellor then do? I speak entirely hypothetically, and this is not a direct question to the noble and learned Lord who sits on the Woolsack. I am asking what any Lord Chancellor would do. One hopes that he would stand up for the Queen's oath.
But then, with her two principal customary advisers advising differently, what should the Queen herself do? It is worth thinking around all the possibilities. Facing such a dictatorial text, should the Queen obediently declare la Reine le veult? Her Prime Minister might advise her to do so, despite her oath; her Lord Chancellor might tell her that the oath is binding above all else, and advise her not to. She would have no customarily valid individual from whom to obtain formal advice. Previous monarchs since 1688 have not, I believe, faced that specific situation.
One can think of a novel, if quaint, procedure that might answer that not quite unimaginable situation. The Queen might, quite privately—perhaps at Sandringham—invite the Speaker of the House of Commons to join her for tea, and while informally showing her the auriculas in the greenhouse invite her opinion, saying, "This piece of legislation that the Government have whipped through, is it in accordance with our longstanding customs whereby the powers are properly divided and the executive does not take more power than law and custom allow? My Lord Chancellor has already advised me that it is not. What is your view, as the personification of the democratically elected House of Commons?"
And if the Speaker were to venture the purely personal opinion, using the words of the Bill of Rights of 1689, "No, I think it seeks to subvert and extirpate … the laws and liberties of this kingdom", the Queen might then signify that she was not minded to vouloir any such thing—La Reine ne le vault pas.
To her Prime Minister the Queen might even quote Winston Churchill, who saw the British constitution as "liberty broadening down from precedent to precedent", and Burke, who recognised the right of a people to throw out a ruler—in this case the elected dictatorship—who like James II subverted its liberties.
But of course the Speaker could not do or say any of this, because she can do nothing except as the House of Commons bids her. And that executive-controlled House would not bid her to undermine its own decision.
And so we are forced back on the question: can we really go much longer without beginning to think of a written constitution? Of course the forthcoming change
1278
of government will no doubt make that seem less urgent, but we may live to regret it if we let the subject drop permanently out of sight.
4.51 p.m.
Lord Boyd-Carpenter: My Lords, 57 years ago I was in practice at the Bar when my practice was rather rudely interrupted by the actions of the late unlamented Corporal Schicklgruber. Therefore, for the purposes of this debate, I think I come, together with the last speaker, on the amateur side as opposed to the very distinguished professional representation of the law which we have had the privilege of hearing. I hope I may be allowed very respectfully to thank the noble Lord, Lord Irvine of Lairg, very much indeed both for the debate and for the admirable speech with which he opened it. In his speech he raised a great many of the difficult issues of today without, as I understood it, offering any dogmatic assertions in respect of them. It has been extremely helpful to have his opening speech.
I would say, too, that the debate is a very good indication of the immensely useful role which your Lordships' House can fulfil. A House constituted as your Lordships' House is, with its immense experience and knowledge, with high legal officers like the noble and learned Lord, Lord Woolf, and with people of every kind of experience, can discuss these matters in a way which no other organisation in this country is capable of doing. The debate so far shows that this is one of the many justifications for the House and makes one express very sincere regret at those—there are some outside—who in different political circumstances would like very much to alter it. Your Lordships' House is justifying itself by holding a debate of this kind.
For my own part, I shall for the reason I have given not venture to detain your Lordships for any substantial length of time; but I should like to say that I was intensely interested in what was laid down as being the duty of the judges. As I understand it, the first and main duty of the judge is to interpret the law as it stands, and where it is difficult to understand, where it is complicated, to give the advantage of his ability and experience to working out the application of that particular branch of the law to the case which is before him.
I am not saying for a moment that it is not right separately from the judicial duties for members of the judiciary, particularly senior members of the judiciary, to offer their advice to Parliament as to possible changes in the law. But in the handling of actual cases I would stress very strongly that the judicial duty is simply assessing what the law means in the context of the case that is before it. Of course that is sometimes a matter of very great difficulty and it is sometimes a matter on which opinions may vary. But it is an important aspect of the matter.
Therefore, I suggest that there are two areas for discussion. The first is what the judiciary should do in court. There, I am afraid, there is no doubt that it is the duty of judges, whatever their personal views on the legislation they are construing, to give the best possible

1279
interpretation of what Parliament meant when the particular Act or even the particular section of the Act was under discussion.
I should like to take up a point made by my noble friend Lord Renton in the course of what was, I hope he will allow me to say, a delightful and very adequate speech. As I understood it, my noble friend was against the provision which exists in certain statutes that where a conviction is recorded for certain offences, there is a minimum penalty which cannot be cut back by the court which is handling the case. Personally, I think it is a good safeguard to have a certain number of minimum penalties so that if one gets an aberration by a judge—as occasionally one does—it does not mean that someone guilty of a very serious offence is too lightly treated and indeed does not receive a proper penalty. Therefore, with respect, I differ from my noble friend Lord Renton and I feel that the minimum penalty which exists for only a certain number of offences is a salutary part of our judicial system.
Lord Renton: My Lords, my noble friend should remember that I said that, under the Home Secretary's proposals, if there were exceptional circumstances judges would not be required to apply the minimum penalty. I agree with that.
Lord Boyd-Carpenter: My Lords, that is a matter of some detail and some discussion. What are exceptional circumstances is a matter where I foresee that legal argument of great length and prolixity could undoubtedly be operated. As I understood my noble friend—I do not think I misrepresented him—he was intending to be critical of the minimum penalty provisions of certain statutes. I understand his view. I am rather in favour of them. Indeed, it might be sensible in certain cases to extend their scope and to apply the minimum penalty rule to a number of other offences which are frequently committed.
Our discussion today has been enormously valuable, and as soon as I sit down, will continue to be valuable. I should like once again to thank the noble Lord, Lord Irvine of Lairg, for introducing the debate and to say that your Lordships' House has shown the great value of its widespread membership and of its capacity to deal with every kind of technical problem that arises. I hope therefore that this debate will succeed in influencing opinion in the right direction and will help us to support a judicial system which is undoubtedly the best in the world.
5 p.m.
Lord Simon of Glaisdale: My Lords, I am always glad to follow the noble Lord, Lord Boyd-Carpenter, because I always find that he has said, much better than I could, everything that I wanted to say. I agree with him particularly in what he said about the role of your Lordships' House in the Constitution. I disagree with him on only one matter where I agree with the noble Lord, Lord Renton; namely, on minimum sentences. The noble Lord, Lord Boyd-Carpenter, left out of
1280
account entirely that in the serious cases to which he referred the Attorney-General can refer unduly lenient sentences to the Court of Appeal.
Like the noble Lord and all other noble Lords who preceded me, I congratulate the noble Lord, Lord Irvine of Lairg, on having introduced this important debate. It is the third important constitutional debate that we have had within a comparatively short period of time. The first was in relation to the amendment of the Defamation Bill seeking to amend the Bill of Rights. The second important debate, just before the Recess, was on sentencing and was initiated by the noble and learned Lord, Lord Taylor, to whom the expressions of sympathy today have been so amply due. The third debate is this one. In the three debates perhaps more questions have been asked than answers provided. The fact that this is the third debate must make one regret that the constant plea in Queen's Speech after Queen's Speech for a Royal Commission on the Constitution fell on deaf ears.
Being so much older, the other thing I wish to say about the noble Lord, Lord Irvine, is that he made a statesmanlike speech. He will forgive me for saying that it differed in tone from the lecture he delivered on this subject and which was printed in Public Law. Today he was far less critical of the way in which judicial review has developed and far more muted in his criticism of the judges who are highly qualified to speak and who have given public lectures on the subject. I refer in particular to public lectures questioning the frontiers of judicial review, which I believe should be questioned in two directions; namely, are we doing too much or are we doing too little and is there something more that we can do? In initiating this debate, the noble Lord, Lord Irvine, made a speech which was statesmanlike and illuminating.
There has been much talk today about the division of powers. Even in the United States there is no complete division. In this country we have practically no sign of it, or very little, and certainly no rigid division of powers. The noble Lord, Lord Mishcon, accused my noble and learned friend on the Woolsack of leading a double life. I fear that it is far worse than that. He is presiding today as Speaker in your Lordships' House. He is replying to this debate, I believe, as head of the judiciary. He is head of an important Government department and he is also a member of the Cabinet bound by the collective responsibility of Ministers, as one saw in his reply to the debate just before Whitsun.
So we have no rigid division of powers. We have something which is much more important and vital to the liberty of the individual citizen—that is, the balance of powers, which is a system of checks and balances, as Walter Bagehot put it. What is essential for the liberty of the individual citizen is that no one organ of the Constitution shall exercise to a substantial extent the functions vouchsafed primarily to another organ of the Constitution.
That leads me to ask why judicial review has been such an emerging part of the law in recent years. I believe that there are two reasons. The first is the extensive and increasing power of the Executive and its

1281
all-pervasiveness. The second is that judicial review, in those circumstances, has been found to be useful by the individual citizen who has applied for the review and for some who have been granted it. I said that liberty is threatened and that judicial review is required in so far as the Executive power has increased in pervasiveness and in potency.
As regards Parliament, I need only read something written by an independent political journalist in The House magazine quite recently. He referred to the "alarming loss of influence" of the House of Commons. I agree very much with the way in which the noble Lord, Lord Rodgers, put his point. It is because of that alarming loss of influence by the House of Commons that judicial review has been increasingly called on.
With the House of Commons suffering an alarming loss of influence, the role of your Lordships' House—and I agree so much with what was said by the noble Lord, Lord Boyd-Carpenter—becomes more important. But what does one find? Although lip service is paid to your Lordships as a revising Chamber, in fact it is not recognised that a revising Chamber means nothing if it is not an amending Chamber. It is not sufficient for a revising chamber merely to exist to rubberstamp the after-thoughts of Parliamentary Counsel. What has been dismaying has been the constant reluctance of government business managers to contemplate your Lordships making effective amendments or, if they do, to give your Lordships the opportunity to ask the other place to reconsider the matter. The most important recent example related to the amendment tabled by my noble and learned friend Lord Ackner to the Criminal Appeal Bill.
In view of that, there has inevitably been pressure on the judiciary to make use of the powers that have been vouchsafed to it in the way shown by my noble and learned friends Lord Wilberforce and Lord Woolf. Those powers were vouchsafed by Parliament, endorsed by the Law Commission and were given at least tacit approval by the Government.
So much for judicial review, but I mentioned frontiers. We must remember that in this country, unlike on the Continent, we have no Conseil d'État, as was described by my noble and learned friend Lord Wilberforce. We do not have the powers of judicial review such as exist in the United States of America. Years ago the noble Lord, Lord Renton, collaborated with others in producing a pamphlet called Rule of Law when we were faced with the problem which has faced your Lordships today; namely, administrative potency proceeding seemingly unchecked. Having taken counsel with two senior and experienced former civil servants, we suggested that there should be an administrative division of the High Court with important, newly retired civil servants sitting with the judge as the elder brethren of Trinity House sit with the Admiralty Judge.
I am afraid that much bilge has flowed under the bridges since then, but I think that it might be worth reconsidering that matter in the context of the frontiers of judicial review. Where there is a question of extending the frontiers—I think that it rests mainly in
1282
two directions at the moment, with both of which I must confess that I am in sympathy. The first is the importing of the continental concept of proportionality of administrative remedy, and the other is the concept of reasonable expectation. When the noble Lord, Lord Irvine, gave his lecture he was, I think, chary of both of those developments. If I understood him correctly—the noble Lord will correct me when he replies if I have got him wrong—that was mainly because it was taking judges too much into the realm of administration for which they were not really qualified. However, if we are to advance in those two directions, might it not be useful to revive the idea of having administrative assessors sitting with the judge to provide the necessary expertise, such as was vouchsafed to us who sat in Admiralty by the older brothers of Trinity House?
I come to my final point which relates to the extra-judicial activities of judges. I found little to quarrel with in what was said by the noble Lord, Lord Irvine, and I entirely agree with what was said on the matter by my noble and learned friend Lord Woolf. There is no need for me to repeat what they have said. However, we must be guarded in two directions. I refer first to the danger of judicial populism. Given that popular opinion veers from side to side, judicial populism would lead to judicial decisions veering with similar uncertainty. That would bring about unpredictability in the law.
My second point on this has already been mentioned. Increasingly, when there is a difficult and controversial public issue, such as Hillsborough or the Strangeways riots, a judge is called on to assist by conducting an inquiry. That is because of the first quality that is required of a judge. When the eminent American judge and jurist Felix Frankfurter was asked about the three most important judicial qualities, he said, "First, detachment; secondly, detachment, and thirdly, detachment". Although I would certainly put detachment first, there is also room for intuition, particularly by judges of instant jurisdiction, and for logical rigour, particularly on the part of appellate judges. However, I entirely agree that detachment must come first. That is why judges are called on for such inquiries. However, we must remember that every time that a judge is called to conduct such an inquiry, he is embroiled in a controversial issue and his detachment may be compromised. Indeed, the reputation for detachment of the judiciary as a whole may be compromised. Although, as my noble and learned friend Lord Woolf said, judges have to consider that role as part of their public duty, what I think is a great mistake is if they afterwards campaign for their report, particularly if it has some party political significance, as so many do.
I entirely agree with my noble and learned friend Lord Woolf about the value of judges giving the sort of lectures that were given in the Hamlyn Lectures and the Holdsworth Lectures. Judges can be creative in such work. Shortly after the war my noble and learned friend Lord Denning wrote a seminal article in a Law Quarterly Review on onuses and presumptions. It has been formative in the law. That sort of activity is

1283
valuable and I think that it would be a mistake to consider that that is not a proper activity for a serving judge.
5.20 p.m.
Lord Monkswell: My Lords, I, also, pay tribute to my noble friend Lord Irvine of Lairg on the way he introduced this debate and the topic itself. I contribute to the debate with some trepidation, in that I am sandwiched between two eminent noble and learned Lords. In a debate which calls attention to the relationship between the judiciary, legislature and the Executive it is useful to have noble Lords who are neither members of the judiciary nor members of the Executive contributing as lay members of the legislature as it were. One of the great benefits of this debate is that it is almost completely devoid of political partisanship. One is talking of major constitutional matters which cut right across party and belong to no party at all.
It would be easy for Members of your Lordships' House contributing to this debate to criticise either members of the judiciary for exceeding their brief or members of the Executive as a whole for usurping their powers. It is not my intention to do that this afternoon but to engage in a degree of self-criticism. I believe that that can be applied not only to me individually but to all noble Lords collectively as members of the legislature. One of the difficulties we have presented to the judiciary and the Executive is our failure to ensure that the laws that we write and the Acts of Parliament that we determine are clear, concise and easily understood. I believe that that is a major failing. If we do not recognise that and take steps to improve the situation we will create more and more problems for the judiciary and the executive.
One recent event in the justice system is the judgment in Pepper v. Hart. I am not a legal expert; my understanding of that case is that when interpreting an Act of Parliament the judiciary can have regard to the parliamentary record. To assist them in determining what is meant by a particular Act of Parliament they can look at the record and see what the Executive said it should mean. I believe that that is a very dangerous situation. If we allow it to become the norm that an Act of Parliament does not mean what it says and cannot be commonly understood to mean what it says in the words set out on paper but is determined by what the Executive says it shall mean, we are on very dangerous ground. The judiciary will be placed in a position where the Executive tells it what an Act of Parliament means. I hope that before too long there will be a coming together of the legislature, judiciary and Executive to recognise that that is a wholly unfortunate development in our systems and procedures which needs to be tackled.
I intended to speak as a layman on the subject of judicial review, largely on the basis of pronouncements by the Executive that it was the judiciary interfering with the Executive's powers and privileges. I have learnt in this debate, not only from my noble friend Lord Irvine of Lairg but the noble and learned Lord, Lord Woolf, the new Master of the Rolls, that that is not the
1284
way judicial review works and that it is a process by which the law is upheld. I hope that the judiciary continues to ensure that that is the way it goes forward.
I turn to judicial participation in public controversy. In Parliament there is a coming together of the legislature, Executive and the judiciary. I believe it is important that each speaks not only forthrightly but is listened to by the others. It is to be hoped that the judiciary as exemplified by the Law Lords, who have their rightful place in Parliament, will make its contribution clear and unambiguous on the basis of its expertise and knowledge so that other members of the legislature and the Executive, who are also members of the legislature, can hear its views. They may not necessarily agree with them all the time but at least they will have the benefit of the wisdom of those views. I hope that not only retired but also sitting members of the judiciary will contribute and that in any future changes to the constitutional arrangements there is no separation and division of these three essential elements of our lives. It has been suggested that there should be a separation of powers. One of the glories of our unwritten constitution is that all of those powers come together. There is no occasion on which one of those powers is in practice allowed to dominate the other; and there is no occasion on which one of those powers can operate separately and independently and have no regard to the other powers. It is useful to have a mechanism within our system whereby everybody can come together to talk and to listen and over time arrive at an arrangement which benefits everyone in society.
In conclusion, I take issue with one phrase which I believe I heard the noble and learned Lord, Lord Woolf, utter. He referred to the judiciary acting in the public interest in interpreting, or reinterpreting, the common law. One of the most difficult issues is who is to determine the public interest. I believe that the judiciary needs to be wary that it is not seen to be interpreting the public interest but rather as interpreting the law as determined by the legislature in the hope that the Executive is kept in check, if that is necessary.
5.30 p.m.
Lord Ackner: My Lords, nearly 10 years ago, at the fourth international appellate judges conference held in Kuala Lumpur, I met the most senior Judge of the USSR. He was Chief Justice Terebilov. I have no doubt that he lived up to his name. Some five years later, shortly after the collapse of communism, I attended a seminar in Moscow arranged by the Council of Europe. Chief Justice Terebilov was no longer in evidence. It so happened that on the very first day of our meeting, the President approved a new law on the status of judges, recognising that the judiciary was a separate power and guaranteeing the judge's independence.
I learnt during the seminar that many judges were, during the Terebilov days, known as "telephone judges". Either before a trial took place, or, exceptionally, part way through the trial, they were rung up by the prosecuting authorities and told what their decision should be. A few years later I raised that with the chief prosecutor from Moscow who confirmed with approval the existence of that practice, saying that after all the

1285
work they had spent on building up the prosecution case, whatever that might mean, they were not going to run the risk of a judge making a mess of it.
Those were no doubt extreme cases of interfering with the independence of the judiciary, totally at variance with our concept of the rule of law. Indeed, in the Government's Green Papers of 1989 entitled The Work and Organisation of the Legal Profession, which foreshadowed the radical provisions of the Courts and Legal Services Act 1990, it was stated:
"a strong and independent judiciary is one of the central supports upon which our liberties are based and upon which the Rule of Law depends".
In the White Paper issued by the Home Office in 1990—a strong contrast to that issued in 1996—and entitled Crime, Justice, and Protecting the Public it is stated:
"No Government should try to influence the decisions of the courts in individual cases. The independence of the judiciary is rightly regarded as a cornerstone of our liberties".
Thus it seems that everyone supports judicial independence. It is after all the judge, and the judge alone, who stands between the power of the state and the freedom of the individual under the law. But does everyone support judicial independence? That very question was answered in a lecture given by my noble and learned friend Lord Hailsham in 1989, in these terms:
"Certainly not the public or the back-benchers in the House of Commons, who constantly revile, frequently from inconsistent standpoints, individual judges on particular decisions, or what they imagine to be judicial qualities, and daily demand the individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that or even that they should be removed from office. Certainly not the Opposition, whichever party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all, I reassure you, individual Members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the views of the judiciary, where they are entitled to differ, but in provision of the means necessary to enable the courts to discharge their functions".
In the opening words of the leading article in The Times on Saturday 25th May, commenting upon relations between the judiciary and executive, it was stated, and in my view rightly stated:
"In any democracy there will always be a measure of tension between the Judiciary and the Executive".
However, I submit that currently, and indeed for the past few years, that measure of tension has proved excessive. I believe that that is due largely to the fact that the Government fail properly to understand, and therefore properly to protect, judicial independence—a vital ingredient in our system of justice.
There are many examples I could provide to support that thesis, but the time limitation on our speeches permits me to refer to only a very few. It goes back to the 1989 Green Papers produced by my noble and learned friend the Lord Chancellor at the behest of a sub-committee of the Cabinet's Economic Committee, chaired by the then Chancellor of the Exchequer, Mr. Nigel Lawson. He was warned by the Lord Chancellor that his proposals would be, "bitterly opposed by the judges" (page 619 et seq. of the noble Lord's biography entitled View from Number Eleven).
1286
Indeed, the Green Papers were described by the noble Lord, Lord Beloff, in the debate on 7th April 1989 as another attempt by the Civil Service to establish its control of what had hitherto been an independent and separate part of our national life. With the deepest respect, my noble friend Lord Irvine of Lairg is totally wrong in thinking the Green Papers were limited to the question of rights of audience. That was far from the case.
One of their central proposals, which the Government were later obliged somewhat to modify, was the so-called Lord Chancellor's Advisory Committee—a lay-dominated committee staffed by civil servants of the Lord Chancellor's Department of which all the members were or are appointed at the sole discretion of the Lord Chancellor. "An instrument", said my noble and learned friend Lord Oliver of Aylmerton:
"by which the Executive can in very large measure control a legal profession which was previously self-regulated and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and, of course ultimately the conduct of the judiciary at all levels".
In the same debate, my noble and learned friend Lord Lane, the then Lord Chief Justice, referring to the totality of the proposals in the Green Papers, warned in trenchant terms that the growth of the powers of the executive and therefore of the Government over the administration of justice had steadily increased in recent years. He said:
"The signs are that it will extend still further. and one asks whether we are now seeing tools being fashioned which by some future, perhaps less scrupulous, government, may be used to weaken the independent administration of justice".—[0fficial Report, 7/4/89; col. 133.]
Some may view those observations as highly prophetic.
Some two years ago I attended, at the invitation of the British Council, a series of meetings and discussions with the Mauritian judiciary. One of the problems which confronted it was the rather too early retiring age which denuded the Bench of experienced judges. To mitigate that, the Government had suggested that the Prime Minister should have the statutory power to retain in office up to a given number of years, judges after they had reached retiring age. That suggestion was quickly rejected by the judiciary, appreciating the danger to judicial independence of judges being placed on short-term contracts. Indeed, unbeknown to them, some 60 years earlier, a Royal Commission (the Peel Commission) for the same reasons firmly rejected a similar suggestion when judicial retirement was being first considered.
The then permanent secretary to the Lord Chancellor's Department (Sir George Shuster, later Lord Shuster) spoke firmly against the proposal. Yet when the Judicial Pensions and Retirement Bill was introduced into this House in 1992, it was specifically proposed in one of the clauses that the Lord Chancellor, without the obligation to consult anyone, should have that very power. How did that come about? It was only at a very late stage in the Bill that the Government bowed to the criticism and withdrew the proposed section, not without my noble and learned friend

1287
Lord Simon of Glaisdale expressing his astonishment that this unconstitutional provision ever appeared in the Bill.
The Police and Magistrates' Courts Bill 1994, when first introduced into this House—it later had to be substantially amended—provided for a structure of control covering not only the administration of magistrates' courts but the selection and employment of magistrates and their clerks which in the view of many, including the former Lord Chief Justice the noble and learned Lord, Lord Taylor, would have provided a means in the hands of the Lord Chancellor or his department of directly influencing the magistrates or their clerks in the discharge of their judicial duties. Indeed, that necessitated for the first time, to my knowledge, the need to insert in the Bill a specific clause purporting to safeguard their independence.
While the Bill was being presented to Parliament the Observer disclosed letters, copies of which were later deposited in your Lordships' Library, from my noble and learned friend the Lord Chancellor to Mr. Justice Wood, the then President of the Employment Appeal Tribunal. In substance they stated that, if that judge did not apply certain statutory rules to the tribunal in the manner in which the Lord Chancellor thought appropriate, he should consider his position. That led to Questions in the House and subsequently to a debate at the instigation of the noble Lord, Lord Irvine of Lairg, on 27th April 1994.
In a fully considered reply quoted in the debate, Mr. Justice Wood concluded his letter to the Lord Chancellor in the following terms:
"You have demanded that I exercise my judicial function in a way which you regard as best suited to your executive purposes, but I have to say that in all the circumstances that present themselves to me, and in the light of the existing law, I cannot regard compliance with your demand as conducive to justice … You express disappointment. I express profound regret that it has ever been the uncomfortable duty of a judge in this country, in compliance with his Judicial Oath, to write to a Lord Chancellor refusing a demand such as the one you made of me".
No reply came. There was merely a civil servant's acknowledgment on 5th May stating:
"The Lord Chancellor is … considering the issues you raise and hopes to reply shortly".
In the course of that debate, which ended shortly before 1 a.m., my noble and learned friend Lord Oliver was moved to say:
"Recent pronouncements in this House have seemed to indicate that the noble and learned Lord the Lord Chancellor and his department interpret the principle of judicial independence in a very much more restricted sense and as meaning simply this: that judicial independence is infringed only if an attempt is made to dictate or influence the decision in a particular individual case".
He observed:
"I hope very much that I am wrong about that because one has only to think about it to see where the logical train then leads. On that analysis, a direction in the 1930s by the German Ministry of Justice that judges were not to decide disputes in favour of members of the Jewish faith or against party members"—[Official Report; 27/4/94, col. 779.]
Lord Mishcon: My Lords, will the noble and learned Lord give way? I happened to participate in the debate
1288
to which he has referred and was able to present to the House correspondence which showed an aspect of the matter which was entirely different from that quoted by the noble and learned Lord. If I remember correctly, and I am sure that I do, I also pointed out to the House, which was subsequently confirmed, that the request made of Mr. Justice Wood was in accordance with the regulation passed by this House and was therefore a parliamentary matter and not a legal matter.
Lord Ackner: My Lords, I have the correspondence here. With great respect, it does not bear out what the noble Lord says. I am sure other noble Lords who were present will remember that a detailed explanation was provided by the learned judge as to why he was adopting the course that he did. He explained that it was done by all his predecessors, including other distinguished judges such as the noble and learned Lords, Lord Browne-Wilkinson and Lord Slynn of Hadley. He set out in full the reason why he adopted that particular process. I shall read out the letter to which I referred. I am sorry to weary the House but, in view of the intervention, I have no alternative.
Lord Mishcon: My Lords, while the noble and learned Lord looks through his papers perhaps he will kindly resume his seat for one moment. It is not for me in any way to defend the noble and learned Lord the Lord Chancellor, who is more than capable of doing so himself. However, I believe that the noble and learned Lord, Lord Ackner, as one of our outstanding lawyers, would always wish to present fairly both sides of the case. He has presented only what was said by some of the participants in that debate and not by others.
Lord Ackner: My Lords, I have found the letter and I shall read it out because it is short. It is the letter to which the reply that I mentioned was made. It states:
"I was, frankly, disappointed by your reply to my letter of 5 February following our meeting on the first.
"I did not seek further discussions of Rule 3 but had sought to make it clear to you that I was not prepared to accept preliminary hearings being held where Rule 3 provided a cheap and expeditious procedure for final disposal of a purported appeal.
"I ask you again for your immediate assurance that Rule 3 is henceforth to be applied in full and that preliminary hearings are not being used where no jurisdiction is shown in a notice of appeal".
The final sentence reads:
"If you do not feel you can give me that assurance, I must ask you to consider your position".
The reply, the final paragraphs of which I quoted, set out in full further submissions.
I shall complete what was said by my noble and learned friend Lord Oliver in the debate. It was:
"On that analysis, a direction in the 1930s by the German Ministry of Justice that judges were not to decide disputes in favour of members of the Jewish faith or against party members would have been no infringement of their judicial independence-and that, of course, is palpably absurd".—[Official Report, 27/4/94; col. 779.]
My penultimate example is the exhortation delivered to the public by the chairman of the party at the latest party conference suggesting that they should write to judges where they were dissatisfied with sentences,

1289
thereby clearly seeking to influence or pressurise the judges to adopt the tougher line which was then to be the view of the Government.
My final example relates to the Home Secretary's proposals in relation to minimum sentences and mandatory life sentences, and in particular to the observations made by my noble and learned friend the Lord Chancellor in the debate on Thursday 23rd May which, with great regret, I was unable to attend by reason of being abroad. The essential complaint by the judiciary was that in cases to which these proposals related they, the judges, would be prevented from doing justice. Indeed, they would on occasions be required to do injustice. To this, to my astonishment, the noble and learned Lord the Lord Chancellor replied:
"The structure that he [the Home Secretary] proposes in no way interferes with the independence of the judiciary. It of course limits the discretion of the judiciary in relation to particular cases; but it does not in any way interfere with the independence of the judiciary to reach the appropriate sentence within the structure of law laid down by Parliament".—[0fficial Report, 23/5/96; col. 1074.]
I respectfully submit that there is here a serious confusion of thought. Of course, Parliament, by virtue of being supreme—and that has never been in issue—has the power, subject nowadays to European Community law, to interfere as much as it likes with the independence of the judiciary and, indeed, with the rule of law. It happened thus in the USSR. Hence the "telephone judges" to whom I referred earlier.
I conclude by going back 20 years to the first international conference of appellate judges held in Manila and I end with a quotation from the then Lord President—that is the Chief Justice, Tun Mohamed Suffian, an old friend of mine and a Fellow Bencher of the Middle Temple—who warned delegates present to be on their guard:
"Because … while all governments publicly endorse the principle, some quietly work to undermine it, and it behoves judges of the world to be on their guard against the erosion of their independence".
Thus, I submit, we have the current tension.
5.51 p.m.
Lord Kingsland: My Lords, I rise with the same feeling expressed by the noble and learned Lord, Lord Simon of Glaisdale, when he spoke; that is, that everything one wants to say has already been said. The only difference is that, in his case, it was not true but, in my case, it is. Nevertheless, I cannot resist the temptation to make one or two remarks about the constitution and about the subject of judicial review.
The key factor about our constitution is that it is a common law constitution. The most important relationships are based on the common law. The definition of a statute is a common law definition. The basic principles of judicial review are laid down not by statute but by the common law. Indeed, the doctrine of the sovereignty of Parliament, to which the noble Lord, Lord Irvine of Lairg, referred with such force, is actually a doctrine of the courts, not an assertion of the legislature. It is, indeed, a relatively recent doctrine of the courts. If one goes back to the days of Coke and Hale and even, to some extent, Blackstone, one can see
1290
that statutes were tempered by the "sweet reason of the common law" although one cannot be certain whether that was an attempt to disapply statutes or simply to interpret them in a certain way.
It was not until, I suppose, the revolution of Bentham, culminating in the writings of Dicey, that the idea of the sovereignty of the legislature became finally dominant in our constitution. Since, as the noble and learned Lord, Lord Woolf, said, the common law evolves, who knows what will be the ultimate destination of the common law in defining our constitutional arrangements?
If I am right about the role which the common law plays in our constitution, it must follow that the judges have a crucial part to play in its development. Although the sovereignty of Parliament was a very important part of the legacy of the great constitutionalist, Dicey, it is often forgotten that he considered an equally important part of our constitution to be the rule of law.
The rule of law depends upon the doctrine of the separation of powers. The reason that our constitution has worked so superbly well is because judges on the one hand, and legislators on the other, have shown great self-restraint towards each other. The courts will never interfere in the internal proceedings of the other place or this House. Equally, it is a great tradition of this Parliament that it will not interfere in the proceedings of the courts. Judges have always been at liberty to look at statutes and interpret them according to the common law in the way they think right. Legislators have never questioned that. It will be a sad day if that tradition is broken. The day on which the tradition of the separation of powers in our constitution is broken will be a real threat to individual freedom in our society.
I should also like to say something about the development of judicial review. The key to the development of judicial review—I was much struck by the speech of the noble Lord, Lord Rodgers, in this respect—lies outside the relationship of the courts and the legislature. It lies within the legislature itself and in particular, another place. The development of judicial review over the past 30 years results from changes in the relationship between the legislature and the executive. I am afraid that it is no longer the legislature which controls the executive but the executive which controls the legislature.
The modern Member of another place is really the representative of an electoral mandate which is received every five years in order to put in place on the statute book certain policies advanced at general elections. That is a long way away from the legislature of the 19th century. Indeed, I believe that the elected Member of another place is put in an impossible constitutional dilemma. On the one hand, he has to keep his party and government in power in order to realise the electoral mandate; on the other hand, he has to keep that same government under control. It is impossible for a single person to fulfil those two mutually contradictory demands at the same time.
With great respect to the noble Lord, Lord Irvine of Lairg, if there was something I found lacking in his speech—I make no criticism of what he said but rather perhaps of what he did not say—it was some indication as to how we could advance on that important front.I

1291
believe that if the legislature could in some way redress that balance, the huge responsibility that has now fallen upon the shoulders of judges in dealing with any conflict between the citizen and the state would be at least to some extent lifted. I believe that they would be glad about that.
In any judicial review case, the courts have to consider the crucial relationship between the state, seeking to enforce Acts of Parliament which are, by definition, in the general interest, and the citizen. But the general interest in any particular case can act very unfairly for an individual. It is a great principle of our country that when the judges look at the impact of a statute on a particular person, they do their best td see that that impact is fair in the circumstances and that that individual understands that if, at the end of the day, he is disadvantaged he at least knows the reasons why he is being disadvantaged and has an opportunity to say something about the situation.
These are great traditions. It is worth doing everything we can to preserve them. I believe that they will be preserved if legislators on the one hand and judges on the other mutually respect each other's spheres of influence.
5.58 p.m.
Lord Cooke of Thorndon: My Lords, the subject of this debate is defined in its first limb in terms so wide that they are capable of extending to virtually the whole field of the British constitution or at least a catalogue of the shortcomings of its vital organs. It is much easier to grapple with the narrower second limb, about which I wish to make only one point.
Judges who comment extra-judicially on current public controversies are inviting trouble unless, perhaps, what they say is strictly incidental to a professional paper—a kind of exercise increasingly expected of the judiciary today. Except when making that kind of contribution, I have striven, while holding judicial office, to avoid public statements otherwise than in judgments. But a price must be paid for such restraint. There can be allegations that the judge lives in an ivory tower or avoids with fastidious horror what the media see as legitimate questions for holders of public office. On the whole, I must admit to having preferred to pay that price, but I sympathise with judges impelled to a more robust solution. For the objective approach that can come from judicial office-holding free of electoral pressures is a useful element in a balanced democratic process.
On the wide first limb of the subject I would offer two thoughts. First, there is nothing new in judicial review, except the name and the procedural changes that have accompanied its use in roughly the past 40 years. The essential principle that executive and administrative authorities, high or low, must act within the law is unchanged and centuries old, as is its companion principle that it is for the courts to determine the law in cases of doubt.
In modern times most of the relevant law is enacted by Parliament, although in a few fields the scope of the prerogative is in issue. It is the quantity of legislation
1292
that accounts for the greater impact of judicial review, rather than any change in the true constitutional role of the judges. Because the United Kingdom system is one of the separation of powers, it is a necessary and probably inseparable function of the courts to interpret Acts of Parliament. Inevitably they will not always do so correctly, at least in the eyes of the losing side. And in the comparatively rare cases, for they are comparatively rare, when a government are the losing side, there may be strong complaints as well as disappointment. But the alternative of no judicial review is in the end surely unthinkable.
Secondly, the legislative changes which introduced the modern judicial review procedure began in Ontario and were subsequently developed first in New Zealand, then in Australia, and ultimately, in the later 1970s and early 1980s, in this country. Some major and internationally influential administrative law decisions have been given by United Kingdom courts, such as the decision of the Appellate Committee of your Lordships' House in the 1968 case, Anisminic v. Foreign Compensation Commission reaffirming the duty of the courts to correct errors of law even where a tribunal had jurisdiction to enter into the inquiry in question. The noble and learned Lord, Lord Wilberforce, contributed a decisive speech in that difficult case.
Yet, just as the main steps in procedural reform were not initially British, so I think the general verdict of comparative lawyers would be that the English courts have been, on the whole, more conservative in the field of public law than the Canadian, Australian and New Zealand courts. Any concern felt here about what is often, but somewhat misleadingly, called "judicial activism" can be tempered by that consideration.
Again, concern is sometimes voiced—and, indeed, was voiced this afternoon by the noble Lord, Lord Irvine of Lairg—about exploration of the doctrine of parliamentary sovereignty or of the principles governing media freedom, or media intrusion as some would describe it. It may perhaps help to see those quite profound issues in perspective if it is borne in mind that such concepts are ultimately the legal creation of the courts, whose responsibility it is to articulate their true legal scope. On that point, I fully ally myself, and gratefully so, with the tenor of the observations made by the noble Lord, Lord Kingsland, who immediately preceded me.
6.5 p.m.
Lord Borrie: My Lords, in 1987 the Treasury Solicitor's Department produced a modestly sized but remarkable booklet entitled Judge over your shoulder. It was a guide to civil servants, a warning to take care, as the booklet itself said, because of an increased willingness of the judiciary to intervene in the day-to-day business of government and what it called the courts' "imaginative interpretation of statutes". I do not know how it came to be the case, but a few years later there was a revised edition of the booklet within which the word "imaginative" was deleted and replaced by the word "liberal".

1293
The publication appeared because, during the past 30 or 40 years, the courts had considerably developed the scope and thrust of judicial review of administrative action and of government departments and executive agencies of all kinds. In a judgment given in 1982, the late Lord Diplock said that the strengthening of administrative law was,
"the greatest achievement of the English courts in my judicial lifetime".
From the vantage point of 1996, it is even more clear that judicial review of administrative action has been a growth industry. Previous speakers have given the figures and also indicated that fact. I believe that the basic principles of judicial review, the concept that the decision of any public body should be challengeable in the courts on the grounds that it is tainted with "illegality, irrationality or procedural impropriety", to use the words of Lord Diplock again, deserve to be widely accepted and applauded.
If "irrationality" seems to be unduly broad, the same Law Lord made it perfectly clear in the GCHQ case in 1984 that the courts are not entitled to use irrationality as a basis for attacking executive decisions just because they might disagree with those decisions on the merits. He pointed out that irrationality only applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.
I am happy to be counted among the enthusiasts—of which clearly, from this afternoon's debate, there are many in this House—for the growth of judicial review. As other speakers have said, there need to be checks and balances in the constitution. There also needs to be accountability on the part of government and government departments and agencies of all kinds to an independent judiciary, especially because accountability to Parliament is, to say the least, imperfect. I also welcome the growth of judicial review because it shows that the common law that has come down to us through so many centuries is capable of expansion and development and is sensitive to the needs of the times.
However—I say this with great care in view of the fact that there are so many noble and learned Lords present today—both before judicial review became fashionable, and even since, the courts have sometimes tended to overreach themselves. In particular the courts have not always been careful to maintain the distinction between procedures and merits, on which Lord Diplock rightly placed such emphasis.
Sometimes, to go a stage further, the courts have been so astute in finding a ground for diminishing executive power that they may not have paid as full regard as they should to the positive purposes of the legislation they seek to interpret. Even this House in its judicial capacity has sometimes given a strained interpretation to the legislative powers granted by Parliament, especially to local authorities, for example in the famous—or infamous, as some people would describe it—Poplar Council case in the 1920s in relation to employment policies, and also in the GLC fares case in 1981 regarding the fares on London buses and the Underground. In each of those cases the House of Lords
1294
in its judicial capacity overturned—interfered with, if you will—the policy decision of a democratically elected local authority in the name of keeping a balance between the interests of the ratepayers on the one hand and the interests of employees or travelling customers respectively in those two different cases. But this so-called balance—which may also be expressed in terms of a fiduciary duty which a local authority owes to its ratepayers—was of course a gloss which the Law Lords themselves put upon the wording of the Act. It is not a duty which is found in either of those pieces of legislation from this House.
Unlike my noble friend Lord Monkswell, I am not an opponent, or I do not dislike, the case of Pepper v. Hart which may entitle judges to look at the legislative history of an Act of Parliament, because in my view it is much less likely now that judges would misinterpret the basic purposes of a piece of legislation when they are entitled to look at Hansard. On the face of it, it is difficult to quibble with the right of the courts to review an executive decision on the ground of it being illegal, or that an error of law is contained within a decision. After all, the courts are courts of law and the courts are surely the supreme arbiters of what is the law.
But suppose, as has often happened, Parliament has set up a specialised tribunal or hierarchy of tribunals, as it has done most notably in the fields of social security and of employment, typically with a lawyer as chairman and others representative of lay interests as lay members. Those tribunals are in effect—and have been described officially as such—specialised courts with specialised jurisdiction. They build up considerable expertise in detailed branches of the law containing much technical regulation. It is not obvious to me that in those circumstances the ordinary general courts that administer the general law should assert their right to review, on the ground of illegality, a decision of such a tribunal simply because they have an alternative interpretation of those detailed regulations. Judicial review in those circumstances is really not very different from an appeal. It is, I suggest—it may be regarded as such—an appeal from a relatively expert body to a relatively inexpert body; that is, the general courts.
There is some scope for, or risk of, the courts overreaching themselves under the head of irrationality, although I gave what I hope is the authoritative Diplock explanation of what that word means. However, I have direct experience of the willingness of the Divisional Court in 1989 to interfere with the discretion granted by Parliament to the Secretary of State for Trade and Industry—the noble Lord, Lord Tebbit, as he now is—not to refer the takeover of the House of Fraser by the Fayed brothers to the Monopolies and Mergers Commission. The Secretary of State announced that he had made his decision on my advice under the Fair Trading Act when I was Director General of Fair Trading. But the Secretary of State did not reveal his detailed reasons for the non-referral to the Monopolies and Mergers Commission because to do so would have involved disclosing the contents of the then unpublished report of inspectors appointed under the Companies Act, and the investigation of possible criminal offences might have been hindered at the time by such disclosure. The

1295
Divisional Court ruled that the Secretary of State's decision must be quashed as irrational because he had given no reasons for the decision. In fact the Secretary of State's decision had been based on confidential advice from myself which ran, as I recall, to some 12,000 words and which I hope included a certain element of rationality.
For me—and, I think, for the law and judicial review—the story had a happy ending because both the Court of Appeal and this House in its judicial capacity took a different view from the Divisional Court. I particularly welcomed the dictum of the noble and learned Lord, Lord Keith of Kinkel, who said:
"The judgments of the Divisional Court illustrate the danger of judges wrongly though unconsciously substituting their own views for the views of the decision-maker who alone is charged and authorised by Parliament to exercise a discretion".
The judgment of the noble and learned Lord, Lord Keith of Kinkel, was concurred in by a number of noble and learned Lords—I see three of them here today, who include one who has spoken, the noble and learned Lord, Lord Ackner, and one who is about to speak, the noble and learned Lord, Lord Lowry.
I say, with respect, that the dictum I have just quoted is a most helpful corrective—if there needs to be one—to the sort of imaginative or, if you prefer it, unduly liberal interpretation of statutes referred to in the booklet distributed among civil servants from which I quoted at the beginning of my speech. As long as that view prevails, anyone overly concerned about lack of judicial self-restraint has little to fear.
6.17 p.m.
Lord Lowry: My Lords, the later one goes in to bat, the more obvious it becomes that every conceivable stroke has been played and every useful run has been scored. I hope your Lordships will forgive me if I, too, make some reference to judicial review, because in reference to that procedure misunderstandings can so easily arise about the role of the judiciary vis-à-vis the executive. Noble Lords who have mentioned this subject are now too numerous for me to list. While I cannot hope to emulate the felicity of my noble and learned friend Lord Wilberforce in his review, I feel it might—if your Lordships will bear with me—be useful on a lower plane to recount some matters from my own experience.
The term "judicial review" is of recent official use, although no doubt it came from Professor Smith's great book of the early 1950s entitled Judicial Review of Administrative Action. Many of your Lordships will feel grateful that at last a second edition of that work has been published. The noble and learned Lord, Lord Woolf, played a dominant part in bringing it to publication. I wish to take the opportunity of confirming in this House the congratulations and good wishes which I have already ventured to tender to the noble and learned Lord on his new appointment.
"Judicial review" was the title given in 1977 to a new Order 53 of the Rules of the Supreme Court, but the supervisory jurisdiction of the High Court over inferior
1296
courts and public authorities in proceedings on the Crown side of the court is an historic part of the common law. That jurisdiction was not, and is not now, appellate. It should be exercised not in order to interfere with decisions on their merit but to ensure that lower courts and public authorities act within their powers and according to law. In Rex v. Nat Bell Liquors Ltd., in 1922, Lord Sumner, delivering the judgment of the Judicial Committee of the Privy Council said (it is now a slight irony) that the superior court's jurisdiction was one "of supervision, not of review".
To traditional lawyers the new title of Order 53 had therefore a somewhat revolutionary sound and there were others for whom that title was seen to have a revolutionary effect, encouraging judges to review decisions and orders in the sense in which Lord Sumner refused to do so. But in reality, as recent authority confirms, the new order simply reformed procedure but did not alter the substantive law of what could be quashed and on what grounds. I do not step aside to discuss the developments which have continued taking place in this sphere.
But what the new procedure did was to wake people up and alert them to the full range of the supervisory jurisdiction, and in particular the jurisdiction to quash and annul legally objectionable decisions and orders of public authorities, including government Ministers. Indeed, in the past, the courts themselves had occasionally slept on the Crown side. For over 100 years before 1951 it was generally assumed in England (your Lordships will, I hope, forgive the inflexion in my voice) that decisions could be quashed only for want of or excess jurisdiction and not for some other forms of legal error, and as late as 1957 (despite 200 years of history) there was some doubt whether administrative, as distinct from judicial or quasi-judicial, acts could be quashed at all. That is strange, because we have only to go back to 1948 for a classic pronouncement by Lord Greene, the Master of the Rolls, in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, the case which gave birth to the convenient shorthand "Wednesbury unreasonableness", as a ground for quashing an administrative Act. Lord Greene envisaged the situation where,
"although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere".
He went on:
"The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them".
Note, my Lords, that Lord Greene classifies Wednesbury unreasonableness as a form of legal error which invalidates the decision. It is not the only flaw which can invalidate a ministerial decision, but it is distinguished by the fact that a Minister or other public authority can appear to be acting within his powers and yet turn out to have exceeded them. There is therefore a large subjective element in the court's decision when Wednesbury unreasonableness is relied on and for that

1297
reason the court must be scrupulously careful to ensure that it is not simply substituting its own view for that of the authority. The judges will often be reminded of the appeal in your Lordships' House in 1985 in which Lord Diplock, having used the word "irrationality"—the noble Lord, Lord Borrie, has referred to it—said that,
"it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it"
The supervisory jurisdiction properly exercised is salutary. Its object is protection from power, the power of bureaucracy; and its purpose is not to usurp the decision-making function but to secure fair and lawful treatment. As the title to the proceedings shows, the jurisdiction is exercised by the Queen through her judges against the allegedly offending authority and for the benefit of her subjects.
I suggest that those who report and comment on judicial review decisions should be careful not to depict the quashing of an administrative act as an aggressive difference on policy. I always recoil from the picture of "judges hitting out", or "judges slamming Ministers". And of course judges must be equally careful to ensure that reports and comments of this kind cannot with justification be made.
We should all be grateful to the noble Lord, Lord Irvine of Lairg, for introducing this debate. The number of noble Lords who have signified their wish to speak is an eloquent tribute to his initiative. He cannot know what sweet music it was in my ears to hear him say how unwise it usually is for a judge to make comments on public questions off the Bench. Four-fifths of my judicial experience were spent in another jurisdiction. For 17 of those years I was a Lord Chief Justice. Many things appeared in the press, or were said at random, and I often wondered whether I was wise to hold my peace. But what Lord Irvine said has helped to reassure me that I was probably not wrong.
My noble and learned friend Lord Cooke referred to the risk that one will be accused of residing in an ivory tower. I believe that that risk must be accepted. As I sat here, I wondered on the effects of one's environment on a judge. In the place where I judged for most of my career, there was one cardinal rule: one must be detached and apolitical. That was as important as judging with competence as regards the reputation of the Bench. That was simply a hothouse which made that rule the more obvious and a necessary concomitant of sitting on the Bench. It is a good guideline anywhere, if only because the Book of Proverbs tells us that:
"Even a fool, if he holdeth his peace, is deemed a man of understanding".
About 60 years ago I purported to apply that saying to Pompey, that rather brainless member of the great triumvirate. For one thing, if you launch some even rather carefully considered observation, you never know when you will sit on a case during which the issue you addressed will come before you.
1298
Judges should be independent, but that does not mean that they should be independent to do and say what they please. Some degree of self-denial must be accepted as a necessary burden of office.
6.30 p.m.
Lord Beloff: My Lords, although coming late in your Lordships' debate, I am much relieved to note that nothing I had proposed to say has so far been said by anyone else. I begin by not joining the normal congratulations to the noble Lord, Lord Irvine of Lairg. Congratulations are easy. I am more moved, in considering his speech and this debate, by the reflection of what one of my heroes, Talleyrand, said, when the death of a foreign statesman was reported to him: "What, I wonder, did he mean by that?"
The noble Lord, Lord Irvine of Lairg, has expounded the views that we have heard this afternoon in public lectures and articles and it is quite interesting to know why he should wish your Lordships to be apprised of them in this more public manner. With that in mind, the point was referred to obliquely by the noble Lord, Lord Rodgers of Quarry Bank, and the name that came to mind was that of Sir Stafford Cripps. That is not the Stafford Cripps whom most noble Lords will remember as the austerity Chancellor of the Attlee Government, but the Stafford Cripps whom I remember from the early 1930s, after the fall of the second Labour Government. He embarked on a campaign urging that a future Labour government should begin by introducing an emergency powers Act which would give the executive the freedom that he believed it needed in order to fulfil what was then the socialist programme of the Labour Party.
No doubt the noble Lord, Lord Williams of Mostyn, when he replies for the official Opposition, will tell me whether I am right when I wonder whether the idea of some kind of conferment of powers on the executive is lurking in one of the think-tanks, fora or wherever it is that Labour party policy is now made.
The second point is that I am sure that there should always be the word "congratulations" in any debate. My congratulations would go to the United Kingdom because of the degree to which, by international comparisons, our judges enjoy independence. A year ago there was a conference of European judges and magistrates on the problems of corruption and international crime connected with corruption. From what was said by representatives of a number of important countries—France, Italy, Spain—it is clear that if they had been discussing the subject of the relation between the executive on the one hand and the judiciary on the other, they would have been concerned about the ability of the executive to prevent or to abort judicial inquiries into evidence of ministerial and parliamentary corruption.
In considering the independence of our judiciary, it is interesting that we cannot point to anything so dramatic and dangerous to the body politic. We have a high degree of judicial independence, even though some noble and learned Lords would occasionally wish it to be even greater.

1299
The other point which struck me about the interesting and in many respects convincing speech of the noble Lord, Lord Irvine, is that he left out an important part of his now famous article, in Public Law. In the last pages of the article, he points out that although judicial review, in terms of United Kingdom law, has been fairly restricted and should not worry a law-abiding government, a quite different aspect now exists in relation to our involvement in two bodies of European law and two European courts: the European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg. If we consider their insistence upon that judicial interpretation of Acts of Parliament and subordinate legislation one must conclude—although I do not believe that the noble Lord, Lord Irvine, came to that conclusion—that the self-restraint which he believes is essential for a judiciary which exercises judicial review is hardly the most evident characteristic of either of those courts or their judges. To find self-restraint among the judges of the two European courts is as improbable as to find alcoholic self-restraint among the practitioners of association football.
There is a serious issue which I am surprised no noble and learned Lord has brought to our attention this afternoon. After all, it is the cases which have involved the intervention of European courts that have been the most important in restricting the sovereignty of our Parliament.
When we come to the final point about whether the judges should pronounce in public, I am again surprised that although so many references have been made to the noble and learned Lord, Lord Denning, not much attention has been paid to the fact that he was one of the few senior members of the judiciary who pointed out early on that the whole British judicial and legal system would now be seriously altered in ways which had perhaps not been foreseen when the country acceded to the Treaty of Rome. If I had a complaint about the judiciary, it would not be that judges do not say enough in public about controversial issues; it would be that on an issue of this kind which is fundamental to our constitutional way of being, they have on the whole been very reticent.
That explains why, although I have found the debate interesting, illuminating and instructive, I also found it, as occasionally with matters in your Lordships' House, a little cosy and parochial. When we consider matters which should preoccupy us and which, in the light of history, are likely to seem characteristic of the age in which we live, their echo in your Lordships' House is rather muffled.
6.40 p.m.
Lord Hacking: My Lords, yesterday the noble Lord, Lord Irvine of Lairg, very kindly encouraged me to participate in this debate. I was concerned that I should be absent from a meeting of Sub-Committee E; but I decided I should like to take the noble Lord's encouragement and in the normal course of events my name would have appeared on the list of speakers.
1300
However, unfortunately there was a misunderstanding between me and my office for which I am entirely responsible. I knew that I should not be able to get to the House until late this morning. I therefore asked if an advance telephone call could be made. That telephone call should have been made to the office of the Government Chief Whip. It was made to Black Rod's office. Upon my office expressing my wish to participate in the debate, my office was quite correctly told by Black Rod's office: "Lord Hacking is absolutely entitled to participate in this debate but he does not require our permission". There, I am afraid, matters rested, and that is why I must apologise to the House for intervening at this stage of the debate.
I have personal knowledge of two constitutions, the constitution of the United Kingdom and that of the United States of America, where I remain a member of the Bar of the State of New York. In the United States there is a written constitution and a complete separation of powers. In the United Kingdom, as we know, there is no written constitution and no separation of powers. The former has disadvantages in terms of the political appointments of members of the judiciary, which goes right up to the Supreme Court. There is a very clear tendency for a Republican President during his period of office to appoint members of the Supreme Court who favour the Republican Party, and vice versa when a Democratic President is in power. As the noble and learned Lord, Lord Woolf, observed, there are definite advantages in our mixture of powers and in judges participating, both inside and outside this House and outside Parliament, in the legislative process. In my very short intervention I shall focus on that point.
I have not had the opportunity of attending or reading the lecture of the noble and learned Lord the new Lord Chief Justice. I therefore have no personal knowledge of what he did or did not say on the issue of privacy. However, I do know that judges over many years have played a vital role in the development of our law. There are a host of examples. To refer to just one, the noble Lord, Lord Irvine of Lairg, may recall the High Trees case in early 1951. I believe the noble Lord was instructed in English law at about the same time as myself. The noble Lord seems to be searching his memory on that case.
Lord Irvine of Lairg: No, I am not.
Lord Hacking: My Lords, I am so glad he remembers it clearly. That established the doctrine of estoppel. The vital role that judges have played in the development of law should be encouraged. I refer therefore to the importance of judicial review. I greatly regret that the European Court is not nearly so effective in matters of judicial review in the application of Article 175 and in its approach to such cases. That is of particular importance when judicial review cases are referred from our courts to the European Court of Justice.
I conclude with some remarks from my side of the profession. The noble Lord, Lord Mishcon, referred to our side of the profession as being the "better end" of the profession. The noble Lord has so much seniority

1301
that he can get away with a comment like that. However, I certainly join with him in saying how lucky we are with our judiciary. Without a written constitution, the debate introduced by the noble Lord, Lord Irvine, becomes all the more important. While we should be aware of the interaction of the powers of judiciary, legislature and executive, I believe that each of those powers should continue to be active.
6.45 p.m.
Earl Russell: My Lords, I have on occasion felt some regret that it has not proved possible to include in the national curriculum a basic citizen's education in law. I formed that opinion when listening to a first-year undergraduate reading an essay on the writ of "alias" corpus. There is confusion between statute and common law. Clearing up that confusion for the laity is quite important.
I am grateful to the noble Lord, Lord Irvine of Lairg, for introducing a subject that has shown this House at its best. I agree with a very large part of what he said. However, I do not altogether agree that the tension at present between the judges and the executive is unprecedented. In 1388, all the judges were impeached. In 1641, two-thirds of the judges were impeached. Once, when browsing in the Public Record Office, I came across the accounts for the diets of Judge Jeffreys in the Tower many years after he had been sent there. All were judges who had allowed themselves to get too close to the executive. So judges may take comfort from the fact that it could have been worse.
Another matter on which I do not wholly agree with the noble Lord is the idea of the separation of powers. The noble and learned Lord, Lord Simon of Glaisdale, expressed views much closer to my position. It is impossible to distinguish vires from origins. All three branches, judiciary, legislature and executive, are emanations of the King's Great Council. So it is a relationship in which the balance that the noble and learned Lord invoked is a key feature. I see it as having been over many centuries a creative tension. I am reminded of a remark by Machiavelli:
"Those who condemn the tension between the Senate and the people of Rome condemn that which was the very origin of liberty".
That balance is the balance of a see-saw—and the day it stops moving, it is defunct. So if there is a tension from time to time, there are uses as well as dangers in it.
Occasionally, there were some quite acute confusions, which show in the early yearbooks. I believe it was Chief Justice Hengham who, in addressing counsel, once said: "Do not presume to gloss the statute to us. We understand it far better than you do, for we made it". His successor, Chief Justice Bereford was listening to counsel arguing whether something was logically implied in the Act and therefore covered, or not in the Act and therefore excluded. Chief Justice Bereford said, "He that drew the statute intended to put it in, and only left it out through inadvertence. It shall therefore be construed to be in the statute."
Those are not remarks that come from a tradition of separation of powers. Nor, taking the other two powers of legislative and executive, is the example of the
1302
Select Committee of another place in the reign of Elizabeth I which, when considering a Bill on the organisation of the Exchequer, met in the private house of the Chancellor of the Exchequer. When teaching in the United States I found that producing that example opened a great many doors which otherwise took some opening. "Separation of powers" is not quite the right term. The noble Lord, Lord Renton, used the example of the noble and learned Lord on the Woolsack. It is a positively Athanasian example of the mingling of the three powers with each other.
In the division of function but not the separation of powers, there is a need for restraint. I think we should get it wrong were we to think that it was only a need for judicial restraint. The noble Lord, Lord Borrie, referred to judges having on occasion overreached themselves. No doubt that has happened. Every power overreaches the boundaries of its authority. But the executive also overreaches itself. Of the two dangers, I know which, over the centuries—for one executive is very like another—worries me more. My greatest anxiety is not focused on the judiciary.
The noble Lord, Lord Irvine of Lairg, stated that Parliament makes the law. That is an incomplete enumeration. It has been clear at least since the middle of the 15th century and, for all I know, possibly longer that a parliamentary statute is the highest form of law there is; it trumps anything else. But statute is not the only form of law. I believe, subject to correction—I have been unable to confirm it in the time at my disposal—that the first statutory prohibition of murder was the homicide Act 1956 whence legislation was necessary in order to restrict the application of the death penalty. Therefore, subject to correction, murder was simply a crime at common law. The authority of the common law cannot come from an Act of Parliament because it pre-dates the existence of Parliament. The limit of legal memory is 1189, and that is a good century before Parliament was in any significant sense a fact.
Whoever wrote Glanville and Bracton—I realise that question is disputed—they were people who did most of their work before parliaments existed. The noble and learned Lord, Lord Scarman, once said that the common law was like Topsy: it just "growed". So the basic authority of the common law must derive from prescription.
A great deal of the development of the law has been through common law cases where there is a general principle which is interpreted by the judge in the light of precedents. The noble Lord, Lord Irvine, has many times praised the late Lord Reid. I recall more years ago than I care to remember reading a Times Law Report of a judgment by Lord Reid about a case where a council had dug a hole in the pavement—as councils do from day to day—and a blind man had fallen into it and broken his leg. The governing legal principle which was agreed well enough was that the council was bound to take reasonable care to make sure that people did not fall into the hole. The point at issue was whether reasonable care included the need to take care in case there should be a blind man passing. There was a previous judgment of the Appellate Committee of this House that it was not required. Lord Reid, after very

1303
careful argument, decided otherwise. That seems to me typical of the way the common law has developed to meet new situations; to meet in that case a change in society's attitude to disabled people.
Without needing to clutter up this House with endless new statutes and regulations, we should be grateful to the lawyers that they do it that way. There is nothing new about that either. In 1632 my ancestor—my ancestors have been unlucky in being on the receiving end of test cases—the one who developed Covent Garden, was hauled into Star Chamber for creating a nuisance because he had built Covent Garden without putting in any sewers. The case first established that it was to create a nuisance to build an area of housing without putting in sewers. In that situation the common law was reacting to a growing population density. There again I think the law was reacting sensibly to change. Whether or not judgments of that sort are making new law is a matter of immense philosophical argument into which I am certain the House will not wish me to enter.
Judicial review, about which we have argued so much, rests, before the 1981 statute, on common law principles. I agree with the noble and learned Lords, Lord Cooke of Thorndon and Lord Wilberforce, that those principles go back for centuries. I once had the privilege of reading the argument of the noble and learned Lord, Lord Ackner, as he became, in the case of Ridge v. Baldwin. His earliest case cited came from the reports of Sir Edward Coke. I traced it back to source and found it was one of a sequence of very similar cases exercising a jurisdiction which seems to me to have great similarity to judicial review as it is presently constituted. But that is something which I have yet to publish and before it is taken seriously it needs peer review of another sort than that readily available in this House. However, that is my opinion for the time being. Therefore there is nothing particularly new about judicial review.
Sir Edward Coke's judgment in Bonham's case, quoted by the noble Lord, Lord Irvine of Lairg, in his lecture and to which much reference has been made, is sometimes misunderstood. As I understand it, all he was saying is what was said by Blackstone in a passage quoted by the noble and learned Lord, Lord Woolf, in his article to which reference has also been made, namely, that Acts of Parliament impossible to be performed are of no validity. If one reads the statute on which Sir Edward Coke was judging one will take the point. It is the most abominably drafted statute that it has ever been my misfortune to read.
If Parliament were to follow the example of an old lady making her will in an Agatha Christie novel and passed an Act dividing something into four equal thirds, the judges would not be guilty of any contempt of Parliament were they to fail to divide the thing in question into four equal thirds. That is all Sir Edward Coke was after.
On many occasions judgments are necessary because of the bad drafting of the original statute. The noble and learned Lord, Lord Slynn of Hadley, in the case of
1304
Bate v. The Chief Adjudication Officer—decided in the Appellate Committee of your Lordships' House a couple of weeks ago—had this to say:
"It is deplorable that legislation which affects some of the most disadvantaged people in society should be couched in language which is so difficult for even a lawyer trained and practised in this field to understand".
I declare an interest in agreeing with that view. The clause in what became the 1990 Social Security Act, to which the noble and learned Lord referred, was one where I put myself into the doghouse by getting the House counted out dividing against it at 10 minutes to 12 at night. When the Court of Appeal held otherwise I was reminded of that famous story of the judge's children seeing crate after crate of champagne borne into the house and being told by their mother, "Daddy's been upheld in the appeal court". Alas, I was not upheld in the Appellate Committee of this House.
What that illustrates is that the clause was a last minute government amendment tabled very late on the day it was put to the vote. I wonder whether a slightly more leisurely drafting would perhaps have produced a slightly better statute. I agree profoundly with what the noble Lord, Lord Irvine of Lairg, said in his article in the lecture; that is, that one of the reasons why judges needed to do what they did is what he called the "democratic deficit"—the inability of the legislature to provide a sufficient check on the power of the executive.
When the phrase, "the intention of Parliament", is used, I sometimes wonder exactly whose intention we are talking about. I remember one occasion when we were debating the Child Support Act 1995. We were discussing Section 2 of the 1991 Act, which was introduced as a consequence of an amendment in this House. The Minister told me with great authority what had been the intention of Parliament in 1991. He was not then a Member of either House. Three people who spoke to that amendment were in the Chamber. None of us believed that our intention had been what the Minister was describing but we did think that the Minister was describing with complete accuracy the intention of the noble and learned Lord on the Woolsack in accepting what we were saying.
So when we talk about the intention of Parliament, are we actually talking about the intention of Parliament, or are we talking about the intention of the responsible Minister? So long as we have that confusion in our mouths, we are leaving the judges rather more work to do than is fair. We need to take our share of the work; and until we do, we are not entitled to complain.
7 p.m.
Lord Williams of Mostyn: My Lords, in the very dark hours before the dawn, sometimes a shaft of light sets itself upon you and gives you infinite uncovenanted pleasure. That happened to me just about half an hour ago in your Lordships' Chamber when the noble Lord, Lord Beloff, invited me to say yes or no to whether the noble Lord was right or wrong. The noble Lord, Lord Beloff, was wrong, though he provided me with an interesting historical, nostalgic memory. I had not heard the name of the late Sir Stafford Cripps used as a bogey man since I was a small child in north Wales. My

1305
mother used to hasten me up to bed if I was slow by telling me that if I did not hurry off to bed soon Sir Stafford Cripps would come and take my thruppenny savings away from me. Sir Stafford Cripps never did and so perhaps we can leave him where he rightly belongs—in mythology and grave.
It is worth reminding ourselves of what my noble friend Lord Irvine of Lairg actually said. He began by saying in effect that the political incorruptibility of the present judiciary is not in question. He affirmed that on a number of occasions in different ways. That was manifest in every speech that was put before your Lordships today. As the noble and learned Lord, Lord Cooke of Thorndon, rightly said, the ground encompassed in the terms of this Motion is panoramic. There are deep questions about the nature of our constitutional arrangements as well as the nature, scope and quality of judicial office and judicial power. We are a fortunate regime indeed, legally speaking, to be able to have two such towering figures as the noble and learned Lords, Lord Woolf and Lord Bingham, to occupy their new positions. I say without disrespect to either of them that there were a number of other candidates who were well-qualified in a Court of Appeal that has probably never been exceeded in the quality of its intellect and judicial authority.
I would suggest that we should define some issues of principle. First, it is not possible precisely to delimit the respective powers of judges, Parliament and executive. Secondly, it is not desirable to attempt such precision, for at least three reasons. First, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Kingsland, pointed out, we do not have an overarching written constitution. Secondly, the modern history of this country—this was alluded to by the noble and learned Lord, Lord Ackner, in his reference to less fortunate countries in the east of Europe—shows that we are fundamentally, rightly and deeply an anti-authoritarian country. We believe in the rule of law, which, as the noble and learned Lord, Lord Lowry, said on an earlier occasion, is not a synonym for law and order but encompasses and describes a much more fundamental and nobler concept. Thirdly, changing circumstances demand changing remedies if a legal system is not to ossify and therefore become of no value.
I would further suggest that each party—Parliament, executive and judiciary—needs to have a decent reflective consideration for the claims made by the others. It is always bound to be a dynamic competition because nothing remains the same. Therefore, the answers to the questions will never be the same. They will be infinitely variable.
Part of the purpose of this debate of course arises by virtue of the insistence by some Secretaries of State recently on the exercise of unbridled, and therefore illegitimate, power. It is normally the Home Secretary but, in fairness to him, not always. This debate should not remain lodged in a period when public debate is rather febrile because we are in the expiring months of a government who are about to fall. The tensions which have been described in various ways will undoubtedly continue after the next election. There will be angry words from Labour Ministers and about Labour
1306
Ministers. I feel like an aboriginal in Australia. I have just thrown the boomerang. Next year it will come back and hit me on the back of the head. But it matters because the principles must endure, whatever the complexion of the government in power, or the struggle is valueless. If a principle obtains in June of 1996, it must obtain thereafter—in June of 1997 and following.
It is interesting to see what contribution the judiciary has made to the modern life of this country. Virtually the whole of the modern law of negligence is judge-made—compensation for individuals wronged by the illegal acts of others. There would be no system effectively of employee compensation for the negligent acts of the employer without judicial intervention. Parliament did not give proper rights. The judges provided them. The noble Earl, Lord Russell, touched on this point in his reference to Lord Reid's judgment. On the other hand, it could be said that the judges have not discharged their duty fully in keeping personal injury awards up to an appropriate level. If that is so, the remedy is available to Parliament and Parliament has not chosen to take that remedy.
The common law, it is said, can grow organically. It does not always do so. The noble and learned Lord, Lord Bingham, as I understood his lecture, was pointing to the fact that a discrete right of privacy does not exist in this country. I did not understand my noble friend Lord Irvine of Lairg to dispute the right of the noble and learned Lord, Lord Bingham, to put that forward as a proposition. What I understood him to be saying was that there are different complexions; that the question of privacy impinges on the freedom of the press; it subtly interrelates with the question of freedom of information; it also has to do with the reform of the defamation laws. Therefore, it is not always the courts which must attend to these very difficult questions. There may be occasions, particularly at a time when there is a promise from the present Government that a White Paper will be produced, when it is better for Parliament to reform than for the judges to create. I submit that that is a perfectly legitimate point of view for anyone conscientiously to hold.
The noble and learned Lord, Lord Bingham, himself in 1992 made a noteworthy speech at the Bar conference about incorporation of the European Convention on Human Rights. I believe that he was perfectly within his legitimate authority to do that. It is an expression of judicial view which he was entitled to hold and publicly express. It is right that judges should give academic lectures. It is right that senior judges—I mention three: the noble and learned Lords, Lord Woolf, Lord Nolan and Lord Templeman, over the years—should be able to discuss law reform and change on a philosophical jurisprudential basis with colleagues; for instance, in other jurisdictions like India.
The question is where the line is to be drawn. If the courts and the prisons become clogged with petty offenders who have not paid their fines for their television licences, are the senior judges entitled to complain? I believe that they are. If legislation is tortuous, confused and plain wrong, is the

1307
Lord Chief Justice entitled to say so in your Lordships' House? I believe that he is. I believe that it is part of his duty on his oath to do that.
One looks at what the judges have done in the field of crime. The protection of the illiterate, uneducated and largely unrepresented defendant was entirely brought about by the judges and not by Parliament. It was the judges who in fact erected and perfected the Judges' Rules to protect the weak defendant. Parliament did not do that: it closed its eyes. It is the judges who have taken to themselves the power, which may not always be appropriately exercised, for striking out criminal cases for abuse of power or for abuse of the system. Parliament gave them no such right. The judges have taken it to themselves and many would say that in a free society they have rightly done so.
There must be a much more subtle interplay between the judges and the legislature than some speeches have implied. Many of the judges and many practising lawyers colluded, as we all know to our shame, in a system which produced many miscarriages of justice. Eventually, that meant legislative intervention in the form of the Police and Criminal Evidence Act. On another occasion, following headline miscarriages, the executive intervened. The then Home Secretary directed the setting up of a Royal Commission nobly chaired, if I may say so, by the noble Viscount, Lord Runciman. Following that report Parliament re-intervened by passing some of the appropriate legislation. So the dynamic which I earlier described is capable of working without the embattled judiciary, the envious legislature or the overweening executive, each settling into its respective trench thinking that there is no good in this partnership which is capable of being alive and valuable.
I turn very briefly to public controversy. I respectfully agree with what the noble and learned Lords, Lord Cooke of Thorndon, and Lord Lowry, said. For instance, it would be wrong for a practising judge, however senior, to conduct a public campaign on something as controversial perhaps as abortion. However, senior judges now have to deal with questions which I take almost at random: when is it lawfully allowable to cut off a life support system from a patient who has been in a coma for many years? When is it appropriate in law for a conscientious doctor to carry out a sterilisation operation on a mentally defective young woman who is sexually active? This is a judicial power which no judge that I have ever spoken to is greedy to take. They are obliged to take those powers because Parliament has been too busy, too supine or too fearful to define the limits of those activities.
The noble and learned Lord, Lord Simon of Glaisdale, mentioned the use of judges in inquiries. I believe that there are significant dangers there. There are enormous benefits in having the independence of the noble and learned Lord, Lord Nolan, Sir Richard Scott, the noble and learned Lords, Lord Woolf and Lord Taylor, and, just a few years ago after Aberfan, Lord Edmund-Davies. But it was a very wrong consequence of Sir Richard Scott's report that there was an officially orchestrated, mischievous, wilful campaign to undermine the judge who had done no more than his
1308
public duty. When people suggest, quite improperly, by misrepresentation of what he said, they might care to re-read the debate which your Lordships had at some length to see who supported Sir Richard Scott and who did their best to undermine him.
The Law Commission does extremely important work. We shall not be able to look to High Court judges to chair that commission if the sort of unscrupulous campaigns that we have recently seen continue. I refer to Mrs. Justice Hale and now Lord Justice Brooke. I shall say nothing about judicial review because I cannot improve on the masterly exposition which the noble Lord, Lord Borrie, gave. I simply wish to offer this as a proposal: all we can hope for in a civil society bound by law is a decent, honourable understanding that there are competing claims. Each of those claims may be of apparent legitimacy; not all of them can always be perfectly reconciled. If we understand that, the problem sets itself in appropriate proportion.
7.15 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I certainly wish to thank the noble Lord, Lord Irvine of Lairg, for introducing this debate. I do not follow my noble friend Lord Beloff into particular speculations, but I am indebted to the noble Earl, Lord Russell, for the remark of Mr. Enoch Powell that the amateur in politics is the one who predicts the result of the next general election. Accordingly, it would not at all surprise me to find the noble Lord, Lord Williams of Mostyn, still sitting comfortably where he is this time next year.
As the noble and learned Lord, Lord Cooke of Thorndon, said, the subject matters in this debate are extremely wide. I do not believe that your Lordships would thank me if I were to try to encompass all that has been said. I wish to start by reference to the judiciary. We are extremely fortunate in this country in the quality of our judiciary. I was very glad to hear that said from a number of parts of the House and perhaps particularly what the noble Lord, Lord Williams of Mostyn, said about the standard of, among others, the Court of Appeal at the present time. I agree with the view that there were a number of very worthy candidates for the highest offices in our judiciary. That is a great tribute to the judiciary. As the noble Lord, Lord Mischon, said, there is an element of sacrifice for many in joining the judiciary. In my experience it is a sacrifice which is very willingly made. It is embraced as an honour by those who receive these offers, and for that I am extremely grateful.
We also have a judiciary whose independence, as individual judges from one another and from any improper influence, is also superb and complete. I certainly do not know of anyone who has successfully attempted—or indeed has attempted without success—to influence the decisions of the judges in the cases committed to them. The essence of judicial independence is that the judge trying the case is free to decide it according to his judgment in the light of the existing law. That applies to the individual case and that is the essence of judicial independence.

1309
The independence of the judiciary—in agreement, for example, with my noble and learned friend Lord Simon of Glaisdale—is an important part of the checks and balances of our constitution. The jurisdiction which the judges exercise right across the board is fundamental to the rule of law. I agree with the view that the rule of law is a deeper concept than just that of law and order.
I, too, very much support the view that judges have developed the law over the centuries. The extent to which that is permissible for them is not easy to formulate. I have seen various attempts in recent times to define the boundary between what is a proper development and what is not. Like some of my noble and learned friends in the Judicial Committee in recent times, I find it difficult to enunciate what that boundary is. That can sometimes be seen in the difference of views between my colleagues as to whether that boundary has been passed. If the boundary were clear, one would not expect such a difference of opinion. In my submission, that development of the law is part of the traditional role of the judges over the years under our system. It has been a healthy and a powerful influence on the law and on the development of the law and the protection of our people in the various centuries when it has been done, and it continues with complete health and robustness at the present time.
Judicial review is a particular part of that judicial function. My noble and learned friend Lord Wilberforce, who has played a vitally important part in the development of the jurisdiction in the years during which he has served particularly in your Lordships' House, gave an exposition which I would not seek to modify in any way.
The noble Lord, Lord Borrie, was involved almost as a litigant. He was an adviser, whose advice underlay a decision that was called into question in the Divisional Court. His reaction to that decision by the Divisional Court is not an uncommon reaction among litigants who find that a court has in some way differed from them. His reaction was to say that the court had in some way overreached itself or gone wrong. That feeling is quite common among litigants. It sometimes affects even Ministers of the Crown who happen to be overruled. The noble Lord, Lord Borne, is fortunate in this respect: the Court of Appeal and ultimately the House of Lords agreed with his point of view. He was therefore able to have a comfort which some litigants are not able to attain.
On that aspect of the matter, the important point to underline is the impartiality of the judiciary. I do not believe that the impartiality of our judiciary in this country is in doubt and I did not understand the noble Lord, Lord Irvine of Lairg, to suggest that. I may have misunderstood what the noble Lord, Lord Rodgers of Quarry Bank, said, but whatever the position with regard to his remarks, I do not believe that there is any question about those of the noble Lord, Lord Irvine.
Some questions have been raised about developments in the law. I refer, for example, to Pepper v. Hart. That matter was raised by the noble Lord, Lord Monkswell. As the lone dissenter in the Judicial Committee on Pepper v. Hart, I would be glad to have the noble Lord's
1310
support for the view that that decision was not correct. Unfortunately, however, I do not feel that I can embrace that support because I do not for a moment take the view that the decision of the majority had the effect that the court would take what the Minister said was the meaning of an Act of Parliament as binding it. With great respect to the noble Lord, I think that that is a misreading of Pepper v. Hart. Your Lordships may remember that among the majority on Pepper v. Hart was my noble and learned friend Lord Ackner and he would be unlikely to subscribe to the view that a Minister could tell the court what to do even in that indirect manner.
The next point which I think is important in relation to the position of the judiciary is the supremacy of Parliament. A good deal has been said about that and I do not propose to elaborate upon it. I had intended to quote the passage from the letter to The Times by my noble and learned friend Lord Taylor of Gosforth. However, as it was quoted by the noble Lord, Lord Mishcon, I do not need to repeat it. It is a most clear, succinct and authoritative modern statement of the position and has lost none of its authority by the sad fact that my noble and learned friend has now resigned his office as Lord Chief Justice of England. I believe that the supremacy of an Act of Parliament, and the giving of effect to an Act of Parliament according to the meaning which a judge concludes that it has, is the basis on which courts exercise jurisdiction and give full effect to Acts of Parliament.
Some points have been made about the difficulties which give rise to judicial review, to which I shall return later, arising from the nature of the legislative process. Comments have been made about the effectiveness or otherwise of the other Chamber of Parliament. I would not wish to cast any aspersion whatever on the work of either House of Parliament. It is worth remembering, particularly in view of what the noble Lord, Lord Kennet, said, that this Government instituted the system of Select Committees in Parliament to oversee the activities of particular departments. That is a new and effective method of supervision of the executive by the legislature. I believe that it is a considerable change, enhancing the method by which the legislature can call the executive to account.
The position of the judiciary in relation to the conduct of inquiries has been mentioned. I entirely agree with the view that that has benefits as well as risks. However, I consider that it is a high tribute to the general esteem in which members of our judiciary are held by the public that when a difficult matter has required resolution successive governments have taken the view that the inquiry should be in judicial hands—although not necessarily in judicial hands only. There is sometimes a judicial chairman but sometimes the judge sits alone. I believe that that has advantages from time to time. Of course, there are dangers in that but, on balance, I consider that our practice of using judges rather sparingly for that purpose attains the correct balance.
I come now to the question of the relationship between judges and the public in relation to lectures and other public utterances. I agree strongly with my noble and learned friend Lord Woolf that it is absolutely

1311
fundamental that judges and other lawyers should be able to participate in discussion of developments in the law. Public lectures have been a well authenticated way of doing that over many years.
There is a risk these days that what the judge says may be taken out of context because it is unusual for the press to quote fully from such a lecture. To some extent, quotations are likely to be selective and may be interspersed with comments which the ordinary reader may find difficult to dissociate from the actual text of the lecture. Therefore, it is possible for statements made by the lecturer to appear in the public press in a way which would not strike the hearer of the lecturer as exactly in accordance with what he heard when attending the lecture. One example of this is the matter to which the noble Lord, Lord Irvine of Lairg, referred. My noble and learned friend Lord Bingham recently gave a lecture about the law of privacy. In the very last paragraph he said:
"The lecturer who asks himself a question must answer it".
I am sure that your Lordships applaud that idea. He continues:
"So I do. Should there be a law to protect rights of personal privacy? To a very large extent the law already does protect personal privacy; but to the extent that it does not, it should. The right must be narrowly drawn, to give full effect to the right of free speech and the public's right to know. It should strike only at significant infringements, such as would cause substantial distress to an ordinarily phlegmatic person. My preference would be for legislation, which would mean that the rules which the courts applied would carry the imprimatur of democratic approval. But if, for whatever reason, legislation is not forthcoming, I think it almost inevitable that cases will arise in the courts in which the need to give relief is obvious and pressing; and when such cases do arise, I do not think the courts will be found wanting".
I do not regard that as an indication on the part of my noble and learned friend that judges would create legislation. As I understand it, he says that if a particular case arises in which a remedy is obviously required as a pressing matter the courts will not be found wanting in granting it.
Apart from matters such as lectures, my noble and learned friends Lord Cooke of Thorndon and Lord Lowry counselled caution. I am sure that those counsels are wise. Reference was also made to the risks to those who keep quiet. As my noble and learned friend Lord Lowry reminds us, Proverbs tells us that there is considerable benefit in keeping quiet, because even if a fool keeps quiet he will be accounted wise. I believe that that was substantially the basis of the Kilmuir Rules. However, I felt that on the whole judges could be credited with judgment in this matter and therefore I adopted the course described, which I hope your Lordships will regard as wise in the circumstances. I do not believe that it has been subjected to criticism by any of your Lordships, and for that I am glad.
My noble friend Lord Beloff raised the question of Europe. The judges of the European Court of Justice are judges who, by virtue of an Act of our Parliament, give judgments which may be effective in this country, in the sense that our courts may be obliged to give effect to them. That arises by virtue of Acts of Parliament of the United Kingdom: the European Communities Act 1972
1312
and Acts which amend it. These judges are surely entitled to the same kind of independence as those who sit in the United Kingdom. They have to construe texts which are less precise for the most part than those which judges are required to construe in the United Kingdom. Those are matters that one has to bear in mind in considering the European Court of Justice. Of course, the European Court of Human Rights is a different tribunal. Its judgments are not directly binding in domestic law in this country. They are binding in international law as a convention commitment and Parliament considers what should be done. It may or may not alter the law according to what it considers is required in the light of the judgments of that particular court.
My noble and learned friend Lord Ackner referred to a number of matters. I believe that most of them are fully dealt with in the passages in Hansard to which he referred. I do not believe that your Lordships would expect me to read them out now. My reply to the last case to which he referred took about an hour. I imagine that your Lordships would not find it convenient if I read that now.
This has been a valuable debate. I believe that the relationships between Parliament, the executive and the judiciary and the extent to which the judiciary should participate in public debate are important matters. Further, I believe that there is a large degree of consensus in the speeches that your Lordships have kindly contributed on the proper role of each of these institutions and their inter-relationship. For that I am extremely grateful.
7.35 p.m.
Lord Irvine of Lairg: My Lords, I am grateful to all noble Lords and noble and learned Lords who have participated in this debate. I believe these issues to be of great public concern. Contrary to what the noble Lord, Lord Rodgers of Quarry Bank, appeared to suggest, I emphatically did not express or imply any lack of public confidence in the political impartiality of judges. I said in terms, as Hansard tomorrow will show, that in my judgment there was no question today about the political impartiality of judges. I do believe, however, that there is much public perplexity about the current issues that have arisen between judges and Ministers and that this debate will go a good way to meet that perplexity.
These issues are not to be passed by in embarrassed silence; they are for discussion in Parliament. I am convinced by the many contributions to this debate that it was right to move this Motion. I was particularly appreciative of the observations to that effect by one of the most senior and respected Members of your Lordships' House, the noble Lord, Lord Boyd-Carpenter. Likewise, I am appreciative of the observations to that effect of the noble and learned Lord, Lord Simon of Glaisdale. The noble and learned Lord thought that on the basis of a public lecture that I had delivered, to which he was kind enough to refer, I had modified my views in this debate. If in future anyone chooses to read my lecture and my opening of

1313
this debate he will find that my views are wholly consistent. But I would say that, would I not? That is for others to judge.
I take this opportunity to agree with the noble and learned Lords, Lord Simon of Glaisdale and Lord Woolf, that lectures by sitting judges are to be welcomed. I have listened to many to great advantage, and I encourage them to go on giving such lectures as long as there are audiences for them. I am confident that that will always be so as long as the lectures are of the quality of the lectures of the noble and learned Lord, Lord Woolf. However, in his speech the noble and learned Lord took issue with my questioning in a public lecture something that he had said in a public lecture in 1994. We share an affection for public lectures and, I am sure, for fair and rational controversy. I do not accept that I quoted him out of context. I will not take the argument further but leave both lectures to be read and judged for themselves.
I was heartened to hear the noble and learned Lord, Lord Wilberforce, bring into play the heavy force of his opinion in asserting as strongly as he did that Lords Wright and Reid were absolutely correct to declare that the courts would never question, and could never question, the validity of an Act of Parliament.
I repeat my personal hostility to any legislative attempt to restrict judicial review which I believe directly promotes the rule of law. I enjoyed the first half, if I may say so, of the contribution of the noble and learned Lord, Lord Ackner. I am sure we were all delighted to learn that he has been so widely travelled in recent years. I did not, however, suggest that the 1989 Green Paper exclusively concerned rights of audience. I dare say that he might himself recall that I spoke out against any abolition of the Lord Chancellor's Legal Aid Advisory Committee.
I am sorry that the debate disappointed the noble Lord, Lord Beloff. He has such high standards, and as he told us himself his own speech broke entirely new ground. But deep cynicism, worthy indeed of Talleyrand whom he invoked, must have taken hold of the noble Lord's vitals before he could suspect that the Labour Party harboured any intention to restrict the judiciary. It does not. The role and independence of the judiciary will be vigorously upheld by the next Labour government which, I can assure the noble and learned Lord on the Woolsack, there will be.
I shall just put the rather jaundiced observation—if he will forgive me—of the noble Lord, Lord Beloff, down as an early harbinger of the scaremongering to which some in the next general election campaign may feel increasingly driven to resort. I believe that the debate will stand for some considerable time as the major source of contemporary opinion and judgment on these issues. I repeat my thanks to all noble Lords who chose to participate. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

Treasure Bill
7.42 p.m.
The Earl of Perth: My Lords, I beg to move that this Bill be now read a second time. Perhaps I may add, "Here we go again" two years after considering a similar Bill which was passed with the support of all parties in this House but sadly lost in another place. This one comes—I emphasise the point—from the other place, through which it was skilfully piloted by Sir Anthony Grant.
To digress, we had a stroke of luck. Sir Anthony Grant, who was near the top of the ballot, is an old and close friend of the noble Lord, Lord Renfrew, whose backing, as we all know, has been consistent and invaluable on the Bill. On learning about the Bill from the noble Lord and also from me, Sir Anthony agreed to adopt it. The rest is history. It was debated fully in another place. The strong support of the Minister of State in the Department of National Heritage was given; indeed, all parties were behind it.
Sir Anthony Grant listened and met all those interested in the Bill, including metal detectorists. He incorporated appropriate amendments in the Bill with skill, and he won the day. All archaeologists—indeed all of us—owe him an enormous debt of thanks and gratitude.
To return to the Bill as it now is, I want to issue one word of warning. Further amendments to it in this House could be disastrous and could lose the Bill for ever. I beg your Lordships to keep that constantly in mind when we debate it. I have no hesitation in asking that because the Bill is similar to what was passed two years ago. There have been one or two amendments. But the Bill is much clearer than before; it has been redrafted for all to understand. If, in practice, there are still certain worries about parts of the Bill—for example, the issue of rewards or the reporting of finds—I am sure that those worries can be met satisfactorily with the help of government assurances.
Amendments to my earlier Bill are valuable but on the whole minor. I say that because we must remember that we have already passed something similar to the present Bill. One of the most important changes may be that the coroner now has discretion to call a jury on an issue if he thinks fit.
The two years have not been wasted. During that time much progress has been made by the Department of National Heritage on the code of practice in Clause 11 which deals with rewards, guidance to finders, and so on. The code of practice has to be approved by affirmative resolution in both Houses. Thanks to the two years' delay, if the Bill passes your Lordships' House we are in a position to act quickly. That is a great plus.
Also, during those two years, another issue has been taken forward. I have in mind portable antiquities and the voluntary reporting of their discovery. Many noble Lords, if not all, will have had copies of the excellent discussion document issued in February by the Department of National Heritage. I shall leave it to the noble Lord, Lord Renfrew, and others to enlarge upon that. While, if it is accepted in due course, it will cost

1315
money, it will be money well spent, whether by the Treasury, the National Heritage Memorial Fund, the Heritage General Fund or some other source. It is enormously worthwhile, and its value to our history immense. Incidentally, there is nowhere else in Europe which does not have a portable antiquities Bill.
To return to our Bill, once more I have to say, "Here we are again." My reason for saying that a second time is that, happily, the noble Baroness, Lady Trumpington, is to speak for the Government. She did so two years ago. She has never wavered in her support for a Treasure Bill. She has worked behind the scenes to further it. Her advocacy and charm have ensured that we are considering the Bill today. Thank you, Baroness Trumpington.
Looking down the list of speakers, I see many old friends. Again, I want to thank them for being here and for their support—if that is what they intend. Lastly on this subject, I wish to mention Dr. Roger Bland—a name known to many noble Lords. He has had a double role on the Bill. He has acted for the Department of National Heritage and for the British Museum. His industry, knowledge and persistence have been of the greatest assistance. I hope that when the Bill has been passed he goes on to deal with portable antiquity.
In explaining the Bill I can do no better than quote from its introduction. It states:
"The Bill replaces the common law of treasure trove in England and Wales and Northern Ireland, which is limited to objects with a substantial precious metal content which were hidden with the intention of recovery and of which the owner cannot be traced".
With the invention of the metal detector all kinds of new problems have arisen. One can do no better than describe the present law as a shambles. I go no further but say that I recognise how responsible many metal detectorists are. They have performed a great service for archaeologists, historians and one and all.
The explanation continues:
"The Bill removes the need to establish that objects were hidden with the intention of being recovered; it defines the precious metal content required to qualify as treasure; and it extends the definition of treasure to include other objects found in archaeological association with finds of treasure. The Bill simplifies the task of coroners and includes a new offence of non-declaration of treasure".
I turn to the detail of the Bill. The first three clauses give the meaning of "treasure" and how that can be somewhat changed with the affirmative approval of both Houses of Parliament. The next three clauses deal with ownership. Clause 7 deals with the duties of the coroner and the fact that he can call a jury. Clause 8 is all-important. It introduces a new statutory offence for those who do not within 14 days inform the coroner of their find. However, it is,
"a defence for the defendant [the finder] to show that he had … a reasonable excuse for failing to notify the coroner".
I shall leave the noble Baroness, Lady Trumpington, on behalf of the Government, to elaborate on that issue and to reinforce the fact that people who behave well have nothing to fear.
Clause 10 deals with rewards. It is right that the noble Baroness, as government spokesman, should go into the detail of that. I say only that for the first time the rights
1316
and interests of the landowner are covered. It should be noted that rewards will be fair. The details of all those provisions will be set out in a code of practice, which is the subject of Clause 11. I repeat that the provisions can be changed by affirmative resolution of each House. The remaining three clauses deal with Northern Ireland.
I know that the Bill is not perfect. Categories of objects could be made much wider, as the National Arts Collection Fund has advocated. However, it realises the reality of the situation and there is provision for a change. Furthermore perhaps one would like to see the wrongdoers penalised more heavily. But they can lose out now because if they behave wrongly they will not receive a reward.
When the Bill was first drafted we tried to go along the path of trespass as the main way of handling matters. However, the Home Office strongly objected to that. Perhaps as time goes on it will be seen that the right way to deal with persistent offenders will be by making provision in a Criminal Justice Bill. I refer to the night hawks. That may be the better way of dealing with such criminals, which is what they are.
I conclude by welcoming the support of the CBA. Archaeologists have such enormous interests and roles to play. I also welcome the support of the NFU and CLA and, indeed, many of the metal detectorists themselves. If the Bill is passed, for the first time England and Wales will be able to safeguard their treasures and history to the lasting benefit of one and all. If nothing is done now and no portable antiquities Bill follows, much will be lost for ever. I greatly hope that your Lordships will support the Bill, which has eluded legislation for 150 years. I commend it to the House.
Moved, That the Bill be now read a second time.—(The Earl of Perth.)
7.56 p.m.
The Earl of Radnor: My Lords, like my noble friend Lord Renton at the beginning of the previous debate, I am surprised to find myself at the head of the list of speakers. It gives me the opportunity to congratulate the noble Earl, Lord Perth, on his persistence, and I hope success, in getting the Bill on to the statute book.
I must declare an interest in that I have a hand in the running of a large amount of land, some of which I own, and I also have a friend who is considerably knowledgeable and has a metal detector. For about 12 years he has collected bits and pieces on a written remit from myself but they all belong to me.
Recently I telephoned my noble friend the Minister to say that we had collected about 800 pieces, mostly metal but also pottery and flint. I then discussed the matter with my friend in anticipation of the debate. I said, "I suppose that as usual I have exaggerated a little". He said, "Not at all. We have collected well over 3,000 pieces now". That is an interesting quantification of what we are talking about. He then told me that none of them came under the old treasure trove rules and that none come under the new rules, either. Therefore, perhaps we are not dealing with too big a question.

1317
I have a certain amount of reservations which I must he allowed to air during the debate, although I have no intention whatever of tabling amendments. I believe that the driving force behind the Bill came from a desire to sort out the reward and in particular the desire not to lose too many artefacts of importance to the nation. It may be indicative to note the two sponsors. Of course, other people are involved. As the noble Earl said, there are plenty of baddies about, but I shall turn to that later.
There are also many reputable people who use metal detectors and they were a little worried in particular about the new definition. I appreciate that these definitions are very difficult to work out; but I believe that it is felt that the 10 per cent. by weight, 10 coins and so on, will be very difficult to prove. In a rather contradictory manner, it will also leave open to false accusations the bona fide person who is not intending to break the law. I do not know how that could have been avoided. Obviously it cannot be avoided because there it sits.
It would be extremely difficult to mount a prosecution in relation to whether a hoard all in one place, had become scattered and then was in one place again, that would be so difficult to prosecute that it was just as well to leave it out altogether. The definition in Clause 3 reads more like a script from the late Tommy Cooper than a Bill in this Parliament.
I turn now to Clause 2. I wish, as I always do, that these matters could be placed immediately on the face of the Bill and not left to statutory instruments. I admit that they are passed before both Houses of Parliament, but they can either be thrown out or accepted but not altered. I personally do not like that sort of thing. Moreover, I believe that it is extremely difficult to debate this matter without the code of practice. The code of practice may well relieve many of my anxieties but it is not yet available.
Clause 8 provides that the person who feels that he has something that should be reported to the coroner must do so within 14 days. If that is to be done by way of a telephone conversation or a letter, that is fair enough. But if it is much more than that, that may create difficulties. The person who hunts about on my land at home works in a very important job—aero design. This is a weekend hobby for him. It may be very difficult for him to comply with that provision, and it may be that a longer time should be permitted.
The other side of the coin is that the coroner apparently may wait as long as he wishes before he convenes a coroner's court to decide upon the matter.
Perhaps I may ask noble Lords to put themselves in the shoes of someone with a metal detector who is wondering whether the object that he has found is treasure trove or whether it is 10 per cent. by weight, and so on. If an article is covered in mud, it must be taken home, cleaned very carefully, examined, categorised, and so on. Perhaps I may ask the Minister whether it is easy, as a test in law, without destroying the object, to discover whether it has 10 per cent. of precious metal within it.
1318
I should have liked the Bill to contain a provision dealing with confidentiality. In my experience, we must be extremely careful that nobody knows where anything is coming from. It will be very difficult to hide that. If people discover that something exciting is happening, those people—rogues—come with their own metal detectors by day and by night. Therefore, something to cover that situation should have been included in the Bill.
I apologise for asking all these questions but it is almost inevitable that they crop up in one's mind when considering a Bill which I hope will not go through all the normal stages. What happens to existing collections? Why should not a person with an existing collection be laid wide open to false accusations? We have a new set of rules here. For my part, we have built cases in which to put the coins. Do we have to go back, examine them all and say that they were found before the Bill became an Act? That seems to be an awkward position for some people. I believe that collections of birds eggs were covered by the Wildlife and Countryside Act 1981, and I should have thought that a similar provision could have been included in this Bill.
I have two points to make on ownership and who receives the reward. I have always felt that if somebody bought or inherited a piece of land, everything on that land, except for hydrocarbons and treasure trove, belongs to the owner. If anyone is to receive a reward, I feel it should be the landowner and anyone with whom he had an agreement or something of that sort. I consider that otherwise, it may go to the wrong people.
There is a provision in the Bill (which I do not understand) that museums are not obliged to make a payment. Does that mean that they will refuse to take the treasure, in which case it presumably goes back to the owner or does it mean that the museums can be rather stingy and say, "We will take it but, sorry, we're not very rich at the moment and we will not pay"? I may have that wrong. My noble friend in front of me is shaking his head. I am not an archaeologist or a great expert on treasure but the person working with me is. I have merely aired a few of the fears which the bona fide metal detecting community still have.
Finally, I should like to know who is to stand the expense of discovering with certainty whether a coin has that percentage within it? Is it the finder, the coroner or the state who must pay that? That is quite enough from me. I have perhaps exhibited my ignorance but I believe that I have aired some of the genuine concerns of the people who enjoy this hobby and there is no reason why they should not do so.
8.9 p.m.
The Lord Bishop of Bristol: My Lords, I thank the noble Earl for the introduction of the Second Reading of the Bill. I heard very clearly the warning about amendments. But to begin with, the Church wishes to give its general approval and support and so welcomes the Bill.
For many years, the Church has had its own system of controls over articles belonging to parish churches; that is, the Faculty Jurisdiction Measure. That is part of

1319
the law of the land just as much as the law on treasure trove. Indeed, it is the only legal system of protection for historic articles in this country apart from the law of treasure trove.
In recent years a parallel system was set up for cathedrals—the Care of Cathedrals Measure 1990. We believe that those controls work well in practice, with the result that the Church is the guardian of many objects which are part not only of the Church's heritage but also of our national heritage. So we welcome legislation to help to preserve secular objects more effectively than the old law of treasure trove.
However, the Church has one concern about the Bill, and that is its impact on objects found on Church property. I should have loved to claim the authority of today's psalm which said:
"The Earth is the Lord's and all that is therein."
I hope that the Church might have been the franchisee. But, as I said, the Church has one concern about the legislation. That is not merely because, like the Crown and some Members of your Lordships' House, the Church has owned much of its land for many centuries—not infrequently since before the Norman Conquest. So what is found on Church land in the present will more often than not have been deposited there at a time when the Church already owned it. More importantly, as I have already mentioned, the Church has its own legal controls over those objects. It is obviously anxious to avoid having two different sets of legal rules governing the same articles and possibly conflicting with one another.
I note in the Explanatory and Financial Memorandum to the Bill the following words:
"The Bill removes the need to establish that objects were hidden with the intention of being recovered".
I believe that the focus of that particular aspect is to be found in Clause 4. One area where problems may arise is that regarding objects buried with their owner in consecrated ground, particularly in or around parish churches and cathedrals, as part of the act of Christian burial.
Perhaps I may give your Lordships an example. It was not unknown in medieval times for a bishop or an abbott to be buried with his episcopal ring and chalice. Those treasures are sometimes found in the course of archaeological exploration of our cathedrals and former abbeys. They were obviously not put there with the intention that anyone should retrieve them in the future. Therefore, they are not treasure trove. But, equally, they were not lost nor left where they were by any form of accident: they were by clear intention entrusted to the Church, with the body of their owner, in the expectation that they should remain within the Church's protection for ever.
I understand from those who have informed me that those situations can give rise to some formidable legal questions, but this is not the time to weary your Lordships by referring to the legal complexities. I know that at present officials of the Department of National Heritage are in discussion with the Council for the Care of Churches, and the Cathedrals Fabric Commission for
1320
England in an attempt to resolve them. At a later stage during the passage of the Bill, I very much hope that the noble Baroness, Lady Trumpington, will be able to assure us that the problems have been solved without the need to delay the legislation.
8.13 p.m.
Lord Renfrew of Kaimsthorn: My Lords, this is a very important Bill. Those of us who have a deep concern for the nation's heritage certainly find it so. It is appropriate, first, for me to congratulate the noble Earl, Lord Perth, on his presentation of the legislation. We are very much aware that the Bill in its present form owes a very great deal to the noble Earl who, on a previous occasion, introduced a closely related Bill upon which this one is modelled.
One should, of course, pay tribute to my honourable friend Sir Anthony Grant who introduced the Bill in another place and who dealt with so many matters so effectively, as the noble Earl, Lord Perth, indicated. The reason that we have a high expectation that the Bill will find its place on the statute book is that it has indeed successfully completed its passage through another place. It now only rests with your Lordships to give it full approval, probably without amendment for the practical reasons mentioned by the noble Earl, Lord Perth, before it will be ready to receive Royal Assent.
The matter of amendment is purely one of timing in relation to the present Session. But I am very hopeful that the Bill may not require amendment by your Lordships as, on a previous occasion, a closely related Bill met with the entire approval of your Lordships. Therefore, I hope that that augurs well.
Certainly, the Bill now before us has received the support of a great consensus of archaeological concerns. The Standing Conference on Portable Antiquities has urged its passage as, indeed, has the Council for British Archaeology, the Society of Antiquaries of London, the Museums and Galleries Commission, the Royal Commission on Historical Monuments and county and district archaeological officers. I understand it to have the full support of English Heritage, and certainly the British Museum—and here I must declare an interest as I am a trustee of the museum—gives the Bill full support.
It is important to see the Bill in a wider context. As has already been remarked, Britain is one of the very few countries in Europe which does not have legislation dealing with portable antiquities. Indeed, I believe Belgium to be just about the only other exception. Therefore, although our monuments are in the main quite well protected, it is the case that portable antiquities in general, other than those of silver and gold, are completely unprotected. That gives rise to scandalous episodes like that of the Icklingham bronzes which seem to have been illegally looted from the land where they were located, illegally exported to the United States and subsequently publicly sold there. Of course, because we have not ratified the UNESCO convention, no legal redress was available. As I said, it is a matter of great scandal. The present Bill would not

1321
necessarily rectify that situation as we are talking about bronzes in that case. However, I only mentioned it to indicate the unsatisfactory nature of some aspects of the present situation.
The Bill now before us would end the ridiculous charade of a coroner's inquest with the objective of assessing the motivation of a person burying valuables some 3,000 years ago. That is a pointless undertaking which is impossible to accomplish with any degree of competence. Yet, under the present provisions, it is essential to establish the intention for recovery—the animus revertendi, to use lawyers' jargon—if the objects are to be declared treasure trove. If so, they then become the property of the Crown and the convention is that the finder receives the full market value. It is very important to emphasise that point because that is an incentive for the finder to report the find and is, indeed, a very important consideration. Of course, if the goods are not treasure trove, they are returned to the finder.
However, one has the extraordinary charade involving very important finds. For example, if it is established that the finds constituted a ritual deposit which it was not intended to recover, they are not treasure trove and do not pass into the nation's care; they can disappear without trace. The Bill also has the merit of including objects, other than simply those of gold and silver, in the overall definition of the treasure if they are found together with objects of gold and silver. Again that would overcome the very strange incidents of late where, with the Snettisham finds for example, great quantities of gold and silver were found, together with objects of bronze. The objects of gold and silver were dealt with in the proper way as treasure trove, but the bronze objects were not treasure trove. Therefore, we actually have a system at present where archaeological discoveries of national importance are split up. That situation would be rectified by the Bill. There is also the matter of important, large-scale hoards of bronze coins which at present can disappear without trace because they do not currently rank as treasure.
I am happy to say that the Bill has the support of the County Landowners' Association. It is important to note that, for the first time in the code of practice, the position of the landowner will be recognised in the legislation. My noble friend Lord Radnor should take encouragement from that and from the fact that where a metal detectorist is hunting for treasure with the approval of the landowner, if treasure is discovered and declared to be treasure there will be a 100 per cent. reward. The code of practice will give some indication as to the reward, or they may have already reached some agreement as to how the reward might be divided between them. I hope that is a comfortable thought for my noble friend.
Many metal detectorists support this Bill. Those of them—I am sure it is the majority—who wish to behave legally and responsibly do exactly as does the friend of my noble friend; that is to say, they discuss the matter with the landowner, receive the permission of the landowner to work on the land, and then if the find is to be declared treasure it will go through the proper procedures. In a moment I shall say a few words about the discussion paper on portable antiquities, which is
1322
not, of course, part of the present Bill. If that goes ahead, people will be encouraged to report finds of a broader nature. That will be excellent. I hope it will not prove unduly cumbersome. Then my noble friend and his friend, the metal detectorist, can both feel full of virtue because they will be doing all that they possibly can to ensure that the nation's heritage is fully understood.
It should be mentioned, however, that there is—as the noble Earl, Lord Perth, indicated—a small minority of metal detectorists who, I believe, are repudiated by the majority of metal dectorists. This small minority of metal detectorists are sometimes referred to as night hawks. They flagrantly and illegally trespass, undertake metal detecting and disappear with any treasure that they succeed in finding. It is important that the activities of these persons should be restricted. Many of us hope that before too long there will be introduced, in some criminal justice Bill, a further crime of aggravated trespass, or something of that kind, which will make it possible to nail such persons. However, we should all recognise that when responsible metal detectorists work with the approval of the landowner and in good faith, everything should be made easy for them.
I shall not try to deal with the various points which the noble Earl, Lord Radnor, raised except to emphasise perhaps two of them. First, this is not retrospective legislation as I understand it. Therefore the noble Earl need not be anxious about the objects which he has currently on display, or about objects in his ownership which he will put on display. I agreed with what he said about confidentiality. It is well understood by archaeologists and by the Department of National Heritage that it is not good practice to advertise where important finds have been discovered precisely because one implicitly invites those night hawks to descend, and one does not want that to happen. I am sure that is fully understood.
The right reverend Prelate the Bishop of Bristol mentioned concerns which we can well understand. If a bishop's burial is found in a cathedral, it should be the wish of the Church that the items will remain within the possession of the Church. I believe that could work within the provisions of the present Bill without amendment if it is understood that those items clearly would be treasure and therefore they would fall within the provisions of the Bill. However, there is nothing at all to prevent the treasure, when it is declared treasure, being returned to the custody of the Church. Surely that is the right outcome. That leaves open one question which I shall discuss in just a moment, and that concerns who would pay the reward when a reward is payable. I hope that in most cases a reward would not be necessary. The right reverend Prelate said that sometimes these discoveries occur in the course of archaeological excavation. Reputable archaeologists do not claim rewards and wise Church authorities secure the agreement of archaeologists that they will not claim rewards before inviting them to conduct their excavations on Church property. In such circumstances probably no reward would be payable.
However, in a few cases a reward would be payable for a discovery of treasure that was perhaps a chance discovery in a Church. There have been such cases.

1323
I believe that six Anglo-Saxon brooches were found by the sexton in a churchyard in Pentney in 1980 and were declared treasure trove. The point I am making is that the Church might be better off under the proposed legislation in this Bill than it is at present, because in the case I have mentioned the objects were declared treasure trove. Some silver spoons were found in a wall of a derelict Church at Abberley in the 1960s. They too were declared treasure trove. Under the present Bill they would be treasure, but I hope that there will be measures to return them to the custody of the Church. I hope that to some extent that will set the mind of the right reverend Prelate at rest.
Before I discuss the discussion paper on portable antiquities, I wish to mention my concern about the financial aspect of this matter. At the moment when objects are declared treasure trove—under the Bill more objects will be declared treasure than are currently declared treasure trove because the category is slightly broader—they are looked at, generally by the British Museum, and if it is felt desirable that the museum should retain them, the museum has to put up the full market value to reward the finder. That point was touched on by my noble friend seated behind me.
That can be a difficult matter for the British Museum. In the case of the Hoxne find, a find of the first importance, which was reported at once in the proper manner by the metal detectorist—many of the finds were excavated under the supervision of archaeologists—the find was declared, in a fair manner, to be the discovery of the original finder. That find was valued at £1.75 million. The British Museum had to find £1.75 million in order to give a proper reward to the finder; otherwise, it would have been obliged to return the find to the finder.
The Earl of Radnor: My Lords, I am sorry to interrupt but I hope that my noble friend can explain something. As regards the reward, I refer to Clause 10(6) which states:
"Payment of the reward is not enforceable against a museum or the Secretary of State".
That was my worry.
Lord Renfrew of Kaimsthorn: My Lords, I am grateful for that comment. I shall give my understanding of that provision but I shall naturally defer to my noble friend Lady Trumpington if she wishes to contradict me. There are two points here. The main one is that if the museum should wish to return the object to the finder and not retain it, the finder cannot say, "I would rather like to have the money". But there may be another sense here. I can assure my noble friend of what is, I believe, the unfailing custom under the present treasure trove provisions where the find has been properly declared. If the treasure trove item is retained by the museum, its full market value is paid. I am sure it is the intention under the rewards provisions and the codes of practice in Clause 10 of the Bill that so long as the items in question are properly declared, the full market value of the finds will be paid. I hope that my noble friend on the Front Bench will confirm that point when she replies to the debate.
1324
I am afraid I must offer a note of dissatisfaction with the present situation. The British Museum's grants in real terms for this year have been cut severely, as have those of other museums. Few museums can now afford the purchases which previously they could have afforded. Therefore I see a difficulty as regards the application of the present Bill unless more generous provision is made. However, I can also see a way forward. The National Lottery provides a good deal of money, much of which is for capital projects or capital acquisitions and not of course, as currently laid down, for recurrent expenditure.
Purchases of objects or the payment of rewards for objects of treasure trove to enable them to remain in the nation's museums—the British Museum or other museums—would be a perfectly appropriate use of National Lottery money under the heritage fund, or whatever may be the appropriate fund. I very much hope that the Government may give consideration to setting up an antiquities heritage fund under the framework of the National Lottery so that it is possible to pay, where necessary, £1.75 million to acquire the Hoxne treasure or its equivalent. That will happen from time to time. If the money is not available to the nation's museums, it will not be possible to reward finders adequately. It will be necessary to give the goods back to the finder, as we have said. Likewise, the same fund would be required in order to reward the finder where appropriate so that treasure found on Church land could be returned to the care of the Church.
As my final and major point, I congratulate the Department of National Heritage on seeing this present Bill as part of a larger vision where the intention will be to consider all the nation's portable antiquities as they are found—objects of bronze, flint or whatever material. It is admirable that the discussion paper on portable antiquities published some months ago—it is still open for comment and discussion—deals effectively with non-treasure categories. I can inform your Lordships that there is a consensus in the archaeological world, as reflected by the standing conference on portable antiquities, that it would be appropriate to bring in a system of voluntary recording. I hope that that will satisfy not only landowners but metal detectorists. It is not suggested that it should be other than a voluntary system, but it would be valuable if a system were set up whereby all finds of archaeological significance were reported without any suggestion that the ownership of the finds would come into question.
The present Treasure Bill deals with ownership. However, any voluntary recording or reporting system would not deal with ownership but with information relating to the circumstances of the find, with all due confidentiality, where appropriate, so that important discoveries of other categories could become known and recorded while the ownership would remain with whoever owns those objects.
Perhaps I may emphasise one point. Such a scheme will need funding on perhaps a modest scale. I hope that the Government will give support. My noble friend on the Front Bench has shown herself to be constructive in these matters in the past. I hope that she is able to give

1325
us some encouragement to believe that the Department of National Heritage may find the resources to set up the necessary pilot scheme so that some modest system could be implemented for the reporting and recording of antiquities under a voluntary scheme. We may then look towards a national scheme working throughout the country. That is what is ultimately needed.
It is helpful to see the present Bill as a first step towards a larger system. Let me emphasise that that larger system would be voluntary and would not impinge on the ownership of finds. It is only the present Bill which naturally does so.
I apologise to your Lordships if I have spoken too long on this important matter, but it is an issue on which I feel strongly. In the discussions in your Lordships' House two years ago, many of these points were most satisfactorily dealt with by the noble Earl, Lord Perth, and others. Therefore, if these important points which my noble friends and the right reverend Prelate raised can be dealt with without too much difficulty, as I trust that they can be, I hope that the Bill will commend itself to your Lordships. If it passes through your Lordships' House without amendment, it has every prospect of finding its place on the statute book, and that will be excellent.
8.35 p.m.
Lord Stewartby: My Lords, if I appear to your Lordships to be purple in the face, it is not because I feel apoplectic about the noble Earl's Bill but because I was fortunate enough to be a member of a team drawn from your Lordships' House which has just concluded a thrilling encounter at the Oval during which more than 500 runs were scored and an honourable draw was achieved not long ago with the last of your Lordships' team at the wicket.
With that preface, perhaps I may move more directly to the Bill. Like my noble friend Lord Renfrew, I congratulate the noble Earl, Lord Perth, and thank him for his tremendous achievement in bringing prospective legislation on this subject so far forward. While it is not in name his Bill this time, in substance it is, and he deserves the credit and thanks of your Lordships' House for what he has achieved.
I also believe that it is right to express thanks to Dr. Bland. In this area he has shown himself as able administratively as he is distinguished a scholar. I wish also to thank the noble Baroness, Lady Trumpington—I hope that it will not embarrass her—for the personal interest that she has taken in the subject and for the way in which she has assisted in bringing this legislation to the point where we are in sight of getting it on to the statute book.
As my noble friend Lord Renfrew said, it is part of an overall look at the question of portable antiquities and treasure. I believe that a voluntary system of reporting and recording finds is highly desirable. It is essential for the purposes of scholarship and preserving items of historic interest. I am sure that it will be possible to work out some scheme. It will involve quite a lot of time, effort and possibly expense. However,
1326
I believe that the outline suggested in the discussion document offers a way forward, and one which should be supported.
My noble friend Lord Radnor discussed various technical points in the Bill. It should be possible to deal with many of those by non-statutory arrangements. Under Clause 11 there is extensive provision for a code of practice to be drawn up by the Secretary of State. I believe that many of the points my noble friend raised could be dealt with in that way. The main elements of the Bill are entirely right. The animus revertendi—the requirement that there should have been a determination on the part of the original burier of treasure to go back to recover it—has proved quite impossible in practice for coroner's courts to resolve in any coherent or consistent way. I believe that the Bill makes a great improvement in putting that issue to bed. I also believe that the definitions of metal content, and numbers of coins needed to be regarded as a hoard, are entirely sensible and I strongly support them.
The suggestions about the coroners' procedures should avoid much of the delays and confusion which have sometimes arisen under the present system.
A topic on which I would like to say a few words is rewards and the code of practice. In the 1970s, as a Member of another place, I was able to persuade the then Chief Secretary to the Treasury, who is now the noble Lord, Lord Barnett, that it would be sensible to set up a committee to review valuation. Under the procedures which had hitherto applied, the British Museum found itself in the awkward position of being the intended purchaser of many important items. It was also the arbiter of the price at which they should be acquired. Even in cases where it was quite evident that the price being offered by the British Museum was proper and fully adequate, it inevitably led to complaints and questioning by finders about whether their finds—it was not their property—could be properly valued by the purchaser. The committee was set up and it has worked well in the succeeding years. I have to declare an interest in that I have recently been invited to chair the committee, although the first meeting which I shall be able to attend is not for two weeks.
The treasure trove reviewing committee will no longer be able to carry out its functions once the provisions of the Bill are implemented. Treasure trove as such will cease to exist and a new code of practice relating to treasure in its new form will govern a number of matters, including valuation and various other related questions. That may offer a solution to the problem raised by the right reverend Prelate the Bishop of Bristol. So far as I am aware, nowhere in this legislation or any existing legislation is there a requirement that objects of treasure trove, or treasure, as it will be under these provisions, must go to a specific destination. Clause 11(2)(a) states that the Secretary of State must prepare a code of practice which must set out the principles and practice to be followed when considering to whom treasure should be offered. If the Church is able to make the appropriate representations when the code of practice is drawn up, it ought to be possible to set out guidance which would enable its objectives to be achieved in virtually every case.

1327
The contents of the code of practice will be important and it is appropriate that the provisions of the Bill should not come into effect as statutes until the code has been satisfactorily established. It will require a considerable degree of discussion from interested parties and I hope that some of the points made by my noble friend Lord Radnor will be taken into account when the code is drawn up.
The way forward with the Bill will be much more satisfactory than the present situation which has caused increasing difficulties over the years. I do not object to Clause 2, as my noble friend Lord Radnor does. It will enable adjustments to be made to definitions of treasure, and experience with most legislation is that one cannot predict in advance everything which one will need to take into account. Although in your Lordships' House horror is frequently expressed at what are termed "Henry VIII clauses", a reasonable degree of "amendability" by means of statutory instrument instead of primary legislation tends to make sense where there are complex issues to be resolved and where only in the light of experience can one see how a point ought to be defined in detail.
The Bill is not necessarily perfect, but I do not believe that a perfect Bill is capable of being brought in and gaining the approval of Parliament because the many interests involved do not always work in the same direction. There are many other issues which relate to portable antiquities, the reporting of finds and other responsibilities.
That said, the Bill is a much better potential piece of legislation than the existing law of treasure trove, which is not sharply defined. I wish it well. I hope that it will pass through your Lordships' House without amendment because such legislation which is not put forward by the Government has a habit of falling victim to parliamentary timetables or other unexpected events. That has already happened once with the original Bill proposed by the noble Earl, Lord Perth, in your Lordships' House. I profoundly hope that it will not happen again in connection with this one.
8.46 p.m.
Lord Templeman: My Lords, as your Lordships have heard, this Bill is the product of much consultation and consideration. I shall not go through the list of promoters, some are here tonight and I shall only add to the list Professor Palmer of University College, London, in conjunction with Dr. Roger Bland. They have been instrumental in keeping the Bill on the road.
I wish to stress that in the other place and now, the Bill is widely supported. Apart from the archaeologists, who would support it of course, and the museums, who also support it, the Bill is supported by the department which has examined it in the national interest. In addition, the Country Landowners' Association is properly alive to the rights and interests of landowners and it supports the Bill. Recently, the National Council of Metal Detecting gave it support, so one could say that it has universal support. There are one or two reservations to which I shall come, but on the general principle everyone is agreed.
1328
There is great flexibility in the Bill on the code of practice, which I shall come to later. As the noble Earl, Lord Perth, said, it is important that it should pass and not be amended. Once the Bill is amended, it must go back to the other place and possibly return here. At the present stage of Parliament, indeed at any stage, to inflict amendments on such a Bill and try to get it through the parliamentary timetable and the demands of the Government would mean that, through no one's fault, it would be liable to disappear into a quicksand. Thus I echo the noble Earl's plea: please may we have the Bill and nothing but the Bill?
I must deal with the reservations raised by the noble Earl, Lord Radnor, and the right reverend Prelate. First, as your Lordships know, the Bill gets rid of many anomalies about treasure trove: the proportion of gold and silver, the fact that awards cannot be given to the owner of the land. There is also the indefensible anomaly that if treasure was lost accidentally, then it was not treasure trove. Only if it was left with the idea of being recovered was it treasure trove. As the Bill deals with articles 300 years old, that was almost impossible to prove. Everyone admits that the old provisions were quite illogical.
On the negative side, we get rid of those anomalies but the noble Earl says: "Yes, but I have great difficulty: how will I know whether there is 10 per cent. and whether it is 300 years old?" In practice, there will be no difficulty. People who turn up treasure, something which they think might be even more than 100 years old, do not normally put it in a bedsock. They want to find out how old it is, what it is and whether it has any value or contains gold. If they are in any doubt, they may want to consult their own jewellers and friends about it, who may be able to tell them straight away what it is—probably the noble Earl himself will know; he has been at it long enough.
Let us suppose that somebody is ignorant and does not want to spend his money. He can still go to the coroner and say: "I do not know whether this is treasure or not. You may have a look at it". Faced with that possibility, the coroner has to hold an inquest (although there does not have to be a jury). First, he has to notify the British Museum. He therefore writes to the museum or sends a facsimile. The museum then directs him to an expert, and an inquest is held. If it is decided that the item is not treasure, it is returned to the man who found it or to the owner of the land. If it is treasure, the Bill is not interested in taking it away from anybody; the Bill is only interested in protecting the national interest. The Bill clearly provides that it is up to the Secretary of State. Assuming that the coroner finds the item to be treasure, under Clause 4 it vests in the Crown (leaving aside franchisees).
Under Clause 6, any such treasure vesting in the Crown,
"may be transferred, or otherwise disposed of, in accordance with directions given by the Secretary of State".
The answer to the point raised by the right reverend Prelate is that no Secretary of State in his right mind would direct him to take the ring off the corpse of the martyred saint or to give up any ecclesiastical item such as a chalice. He ought to be notified, and for this reason.

1329
The item will be left with the Church, but there will certainly be a requirement to record where it was found. The British Museum will need to be notified since it may want to send an expert to examine it or ask the Church to allow a student to examine it. Probably the treasure will be so valuable that either the Church will sell it or will need to put it in the bank vaults.
As the right reverend Prelate will know, one of the burdens on the Church is the possession of masses of silver plate and valuable articles which, for historical and cultural reasons, the Church does not wish to dispose of but because of the amount of vandalism these days simply cannot be left on exhibition. If the item is Church property, it can be transferred in accordance with directives given by the Secretary of State. Clause 11 states that the Secretary of State must prepare a code of practice. Subsection (2) states:
"The code must … set out the principles and practice to be followed by the Secretary of State … when considering to whom treasure should be offered … when making a determination under Section 10"—
that is, whether it is to be transferred to a museum—or,
"where the Crown's title to treasure is disclaimed".
I have no doubt that a code of practice, if it is necessary, will serve a cause. The Crown is not in the business of grave-robbing. This circumstance will arise only when somebody authorised by the Church has found some treasure by accident. If it is ecclesiastical treasure, the code of practice will immediately provide that the Crown shall direct that it stay where it is—with the Church. But it might equally ask the Church to let someone come and look at it. I am sure that the Church would not wish to prevent proper authorities such as the British Museum or a very reputable archaeologist from coming to look at the treasure. That will be an end to the matter.
But let us suppose that a sexton is bumbling around on an area that is now a churchyard but was, long before Christianity ever came to this country, obviously not sacred ground, and while digging he turns up, for example, 16 silver candlesticks. They had nothing to do with English religion but might previously have had something to do with the bards. Or he may find 16 tablespoons. The Church will not want to say that such items are ecclesiastical; but it will want to report the find. I have no doubt that the code of practice will provide that where the Church wants an item of treasure, either the Secretary of State will accept an obligation to let the Church have the item, or will say that he will bear the matter in mind very carefully. That will only apply to such items as the spoons. If the Church wants the spoons, I dare say the Secretary of State will let the Church have them. The code of practice can so provide.
The Lord Bishop of Bristol: My Lords, I thank the noble Lord for giving way. I made three points. The first has to do with the fact that legislation already exists to deal with the finding of such items; and we want to make sure that the two come together. Secondly, we are concerned about what happens on Church land. Therefore we want to talk about the issues, and I was laying down markers. Discussions are taking place. In
1330
the legislation as presently drafted we do not see what the details will be. We therefore want to ensure that they are included.
Lord Templeman: My Lords, I was not complaining about the remarks of the right reverend Prelate. I was simply saying that, even as the Bill stands, there is plenty of machinery. It will all come out in the code of practice.
So far as concerns dealing with Church land, it is land belonging to the Church, and the Church must keep out trespassers. If a trespasser turns up a chalice or any other such item I hope he will go to gaol and that the Church will be allowed to keep the item under the code of practice. If the trespasser or the sexton turns up 16 spoons, then if the Church wants to keep the spoons, I think it will be allowed to do so unless the British Museum says that the spoons have nothing to do with the Church but are of an antiquity beyond belief, possibly used by Stone Age man, and the museum wants them.
Whenever treasure is turned up, Clause 10 applies,
"if treasure … has vested in the Crown … and … is to be transferred to a museum".
The Crown is not interested in the treasure going anywhere but to a museum. It will ask the museum whether it wants it. Most people like the noble Earl, Lord Radnor, may have plenty of coins of that vintage and will say no; or will say yes only if they think that the treasure ought to be in a museum so everybody can look at it but not in private hands, or possibly in a church, where it will not be seen.
In that case, if the museum says that it wants the treasure, the Secretary of State must then determine under Clause 7 of the Bill whether a reward is to be paid. The practice is that a reward is always paid for property that is turned up and which is treasure. He then has to determine the market value of the treasure and the amount of the reward. If the museum says that it wants to keep an item of treasure because it is unique and it does not have such an item, the Secretary of State will put a value on it; he may, for instance, say to the museum that the market value is £1.5 million. Under his powers, he can direct that it is transferred to the museum but can say that he will make that direction only if the museum is prepared to pay £1.5 million as a reward.
The Bill carefully preserves the Crown from having any liability; such liability cannot be put on the taxpayer; and the museum cannot be forced to pay. In practice, the museum will be in a dilemma. If it wants the treasure, it must pay the reward. If it does not consent to pay the reward—which is the full market value; so the owner and the finder will not be deprived of anything—all that is done is, in effect, to give a first right of purchase to a museum, at full market value, if it considers that the objects are of national importance and therefore ought to be in a museum rather than in private hands. If the museum says that it either cannot afford the reward or it does not want the treasure, the Secretary of State will direct that it goes back to the noble Earl or to his employee who found it. Then the owner will be able to sell it, and may be able to get £1.5 million for it.

1331
This is not a question of confiscation. It is a right of first refusal for a museum. It is a serious matter. As the noble Lord, Lord Renfrew, said, there are a good many treasures and portable antiquities which ought to stay in this country but which are being sold on the black market and are disappearing abroad. They ought to be revealed, because we can only know our history and culture if we find out where such items are and whether they are worth preserving. For my part, I would have thought it sufficient that the Secretary of State has power to say to whom the property should go, it being his duty to prepare a code of conduct, keep it under review and revise it when appropriate. To do that he must,
"set out the principles and practice … when considering to whom treasure should be offered … where the Crown's title to treasure is disclaimed. The code may include guidance for those who search for or find treasure; and museums and others who exercise functions in relation to treasure".
As I have said, the whole object of the Bill is to see that a museum has an opportunity of acquiring valuable pieces of national importance—if they pay the full market value—and I would have thought that the provisions of the Bill as it now stands and the code of practice are sufficient.
The code of practice must be negotiated, and one of the parties with whom negotiations will take place is the Church. The fact that there is faculty legislation is not a worry. If one intended to keep the treasure or put it somewhere else, it is possible that a faculty would be needed; but if it is ordinary treasure then the provisions of the Bill will cover it. We do not need two Bills.
Equally, on general principles I should like the Church to be under the same umbrella of jurisdiction as everybody else. If a sexton finds silver spoons in a place which may have been a church 100 years before, I do not see why the Church should be in any better or different position from the noble Earl who finds it on his farmland. Equally, if it is within the Church or in consecrated ground, or is what I would call ecclesiastical treasure, I have no doubt that the code of practice will provide that one simply keeps it, subject to notifying the British Museum that it exists so that it may consider whether or not it wants to look at it.
I have spoken for too long. I wish to make one more point. I support what the noble Lord, Lord Renfrew, said regarding the problem of portable antiquities. It has been calculated that there are 30,000 metal detectors which turn up 400,000 buried articles every year. Some of them are absolute rubbish; a lot of them are not treasure within the definition of this Bill, but a great number of them are part of our cultural history. There should be some method whereby those fines can be reported and those which are the most value to our heritage should be preserved.
The Government's proposal is that there should be a voluntary code. That has found general acceptance. Everything needs a little money. To begin with there must be a voluntary code but it must have a little money and centralisation of funding. I shall press the Minister and I am sure that she will press on the Government that it would be a wise investment in our history to produce
1332
enough money to get a voluntary system working which will guard portable antiques which do not fall within the Bill. I hope that I have done something to allay the misgivings expressed in the course of this debate, and I hope that the Bill passes.
9.3 p.m.
Lord Renton: My Lords, it always increases one's confidence in legislation that one wants when one hears it approved by a noble and learned Lord. I am glad that the noble and learned Lord, Lord Templeman, said what he did.
Perhaps I too may try to set at rest the fears of the right reverend Prelate the Bishop of Bristol. It is not unusual in our legislation to have laws overlapping. One could mention many cases but I shall mention just one. We have laws preventing cruelty to children and laws punishing people for assaults of one kind or another. One could go right through the statute book and find many examples of laws which overlap and to a limited extent have the same purpose. Therefore, although I agree with him that it may be better to clarify the matter in the way he suggested, I do not believe that in the meantime the cathedrals and churches need worry.
We have varied and valuable relics of life in England and Wales going back 3,000 years which are buried and form part of our heritage but which receive little or no protection under the law. Therefore I warmly support the Bill put forward by the noble Earl, Lord Perth, and thank him for his magnificent initiative two years ago and for continuing it this evening. Without that initiative we might not be providing the protection which is so greatly needed.
The common law of treasure trove in England and Wales is so limited and defective that it is surprising that it has lasted as long as it has. It originated through the need of King Richard I to raise money for the Crusades 800 years ago. It is amazing that that ancient and artificial law survived for so long. Those laws never applied in Scotland—I suppose partly because Scotland was not then part of the United Kingdom and did not become so for a long time. But we owe to a Scottish nobleman—the noble Earl, Lord Perth—the initiative for changing the law in England and Wales in the way proposed, which is long overdue. I am glad to see that he is supported by three life Peers of Scottish origin. I hope that the noble Lord, Lord Morris of Castle Morris, will acknowledge that even the Welsh sometimes owe a duty to the Scots.
The noble Earl also paid tribute to Sir Anthony Grant MP. Grant is a Scottish name. I should like to endorse that. Sir Anthony is a very old friend of mine; indeed, he represents part of my old constituency of Huntingdonshire. Dr. Roger Bland has also been marvellous.
As the noble and learned Lord said, the Bill is now suitable without further amendment. Minor drafting amendments can be made to almost every Bill but we can do without them on this one. They are really not necessary. The only point I want to raise is one that has not been so far mentioned. Art theft in this country and in other countries runs into huge sums every year. It is

1333
a large international trade. Some of that trade consists of objects which will in future, I am glad to say, be protected by the Bill.
9.8 p.m.
The Viscount of Falkland: My Lords, we on these Benches broadly support the Bill. It is admirably pragmatic and it is admirable in the way in which it balances both the private and public interest in an area which has been sadly neglected, as other noble Lords have said, not for many years but for many centuries.
Having said that, it is a Bill which is essentially pragmatic, it has an underlying principle, which is to enable finds of portable antiquities in this country to be examined and reported in a proper way. I do not think any fair-minded person could object to that, though in the other place there were those on, one might say, the liberal wing of the argument who felt that on balance it would be better to keep the status quo as the Bill would curtail the liberty of the individual, whether he was a landowner or an operator of a metal detector, to do what he wished. I do not happen to agree with that argument and I do not think that many noble Lords, if I judge their contributions rightly, would either.
There are in the Bill a number of areas which are not entirely clear to the layman. I was fascinated by a remark by the noble and learned Lord, Lord Templeman, about the position of the Church as regards artefacts and antiquities which may be found. I was interested in his view that the position of the Church should in no way be different from the position of others such as the noble Earl, Lord Radnor. That is an interesting point. I hope that the noble Baroness the Minister will be able to throw some light on that.
The position today is different, with the increase in technology in metal detecting and other areas. I have to be careful here because when the noble Earl introduced his admirable Bill which fell by the wayside and which is replaced by this even improved Bill my remarks about metal detectors and those who use them resulted in my receiving not abusive letters but letters which criticised the implications of my contribution.
For the benefit of those who will be reading Hansard after this debate, on that occasion I was in no way criticising those who operate this technology in a legitimate and responsible way. I was referring to others: I shall use the word which seems to trip easily off the tongue—nighthawks—which I have heard mentioned in this debate. Being of a suspicious nature, in the society in which we live today, I imagine that nighthawks, if not outweighing in number the responsible ones, are a considerable force to be reckoned with; and not only native nighthawks but nighthawks from other countries who may come here attracted by the prospect of finds. Perhaps they read Hansard and think that there is an opportunity here for a great deal of lucrative work, especially when they realise that just under 500,000 finds are recorded each year and probably about one-third again of finds are not recorded. The position here is one which certainly demands legislation of some kind to replace that which has come through our common law and has been with us for some hundreds of years.
1334
Perhaps I may mention some of the points which I have picked up in the course of the debate which give me some anxiety. Clause 10 refers to the payment of rewards, which was also referred to by other noble Lords, including the noble Earl, Lord Radnor. He is anxious about the whole question of rewards. I agree entirely with him that fundamental common sense tells one that the landowner should have the largest claim to the rewards. If one returns to the principle of the Bill, rewards are not the main matter. It is the proper finding and recording of our heritage, the time and the place and other factors which are of greater importance. We all like rewards. I recall recently speaking in a debate on tipping in restaurants. One of my noble friends on these Benches who had been a waiter said that there is nothing in this world that one likes better than a reward. That moved him to believe that to continue tipping in the way we do was better than to change in the manner proposed. Everyone wants a reward, but how it is paid and so forth will be dealt with under the code of practice.
As the matter is expressed in the Bill at the moment, to the lay person it is somewhat difficult and complicated to understand how it will all work. I am sure that the noble Baroness will enlighten us on that. A code of practice is often bandied about in your Lordships' House and one often wonders what it will contain and achieve. For example, will a code of practice tell us more about the procedures which coroners will follow? I do not believe that any noble Lord has mentioned that. I understand from the Bill that a person who fails to report a find within the statutory time limit will be subject to a fine or even a term of imprisonment. But how will a find be reported? Will there be a code or pattern of practice which is the same throughout the country? Will a person gravitate to Cambridgeshire or Devon because coroners in those parts of country are more lenient? A noble Lord mentioned that only a telephone call, a letter or some form was needed, but that is not clear from the Bill.
As regards penalties, it appears that, on the face of it, a fine of £5,000 is derisory. It is not derisory to someone who commits an offence either through negligence, ignorance or carelessness, but it is a derisory amount if the offence is committed with deep intent and careful planning. I shall be very interested to hear the noble Baroness explain why the fine has been set at that level.
Having said all that, these seem to be carping criticisms of the Bill. They are not criticisms really, they are simply areas of uncertainty from my own personal point of view. Obviously, I shall feel very much reassured not only after the noble Baroness has spoken, but after this admirable Bill in many respects has gone through all its stages in this House and has inevitably found its way on to the statute book.
I do not believe that there is anything further for me to say. It has been a very distinguished debate with very interesting and fascinating contributions made by people who are much better qualified to speak on the subject than I, as a mere hereditary Peer who, happily or unhappily, does not have a personal metal detector working for him. I was most interested to hear the noble Earl speak about his collaboration with a metal detector. I believe that that is all to the good. That was a perfect

1335
example of the way in which things should work, but I wonder whether they will work like that in general. It is a fascinating subject. The Bill obviously goes a long way towards making corrections in an area of the law which is in much need of reform. I wish the Bill speedy travel on to the statute book.
9.19 p.m.
Lord Morris of Castle Morris: My Lords, those of your Lordships who are in the habit of rising betimes and getting here early in the morning may well have noticed that the annunciator at that time of the day frequently carries an often most interesting thought for the day which seems to originate from somewhere in our security service. Yesterday, for example, the message was a quotation from my master William Shakespeare's play, King Henry VI Part I, Act II, Scene 1, line 58:
"Had your watch been good
This sudden mischief never could have fall'n".
It was slightly misquoted and I have put it right, but nevertheless the idea was a good one and the point was made.
It seemed to me to be rather appropriate to the Second Reading of this Bill today as, if only we had been able to keep careful watch to facilitate the progress in another place of the original Bill of the noble Earl, Lord Perth, we might have settled the whole matter years ago. The House will wish, I am sure, to congratulate the noble Earl not only on his timely good sense, but on his persistence, his tenacity and his perseverance in seeing to it that his original proposals did not fall by the wayside, but marched resolutely onward and upward to the statute book where they unquestionably belong.
We on these Benches—I speak for both of us—take the view that the Bill was carefully and well debated at all its stages in another place. We agree with the noble Earl, Lord Perth, that any further amendment would be quite unnecessary and counter-productive. There is little left to say, except to reiterate the total support of the Opposition for what seems to us a thoroughly sensible, well drafted, constructive and helpful piece of legislation.
We realise that the Bill is not the last word on the subject. There is further work to be done to develop the Government's well-thought-out strategy on the matter of portable antiquities, but the Bill is an excellent start. I hope that when the noble Baroness the Minister replies to the debate she may be able to say something about the code of practice which I believe will augment the Bill. The code of practice, as we have all said, will be a very important matter in determining how effective the Bill will be in practice—and the glimpses that we have had of it from the debates at all stages in another place were just enough to tempt the palate, but not enough to satisfy the appetite.
We would welcome enlightenment on a few matters relating to the franchisees referred to in Clause 5 and elsewhere. For example, is it true that franchisees do not have to own the land to have treasure ownership rights? What exactly is the position of the landowner, the
1336
leaseholder, the tenant and the finder when franchisees lay claim to recovered treasure? Is the franchisee able to claim the treasure without compensating anyone? Is the franchisee able to dispose of treasure without any consideration for the national heritage? If the noble Baroness can in any way clarify these matters (either when she replies to this debate or subsequently by letter) I shall be grateful. Similarly, I hope that she may be able to offer the right reverend Prelate the Bishop of Bristol some "comfortable words", following the example of her noble friend Lord Renfrew of Kaimsthorn, although I suspect that she will not be able completely to give him, "a happy issue out of all his afflictions".
Finally, perhaps I may applaud the proposals for a voluntary recording scheme to cover all archaeological objects which were set out in the DNH's discussion document on portable antiquities, which was a very welcome document. Clearly, the scheme is deliberately intended to complement the Treasure Bill, and it is distinctly reassuring that it has been welcomed by the antiquities trade, by archaeologists of all sorts and descriptions, and by the metal detectorists—and how good it is to see that the metal detectorists are now overwhelmingly in accord with the Government's proposals about treasure. Those of us who recall the confrontations and disputes so common a decade ago between metal detectorists and all museums—they were almost literally at daggers drawn—will be greatly relieved at the progress which has been made.
Obviously, the voluntary recording scheme will not be possible without some limited additional resources, and I must delicately remind the Minister, as have others, that as yet the Government have made no commitment to providing any additional funds for that purpose. Is it not very nice to find in the Explanatory and Financial Memorandum to the Bill that the whole thing can be done for a mere £10,000 and that,
"The Bill makes no other calls on public funds"?
The noble Earl, Lord Perth, is a Scot. A Scot has been well described as a Yorkshireman without the Yorkshireman's capacity for spontaneous acts of unbridled generosity. He must therefore feel well content that he has achieved excellent value for money and has done Parliament, the nation and the heritage a good turn. Well may he say, in Othello's words,
"I have done the state some service, and they know 't".
9.26 p.m.
Baroness Trumpington: My Lords, I am delighted to have the opportunity to welcome the Bill. I join other noble Lords in congratulating the noble Earl, Lord Perth. I believe that all noble Lords here this evening will agree that it is due largely to the tireless efforts of the noble Earl that the measure has got as far as it has. Our heritage does indeed have a tireless champion. I know how disappointed he was when his earlier Bill failed to make progress in another place two years ago. I hope that the fact that we are here tonight discussing a Bill which has successfully passed through the other place will be compensation for his earlier disappointment. At that time the noble Earl was greatly assisted by my noble friends Lord Renton and Lord Renfrew, as has

1337
happened again this evening. I am grateful to my noble friend Lord Renfrew for his masterly speech which, luckily for me, covered many of your Lordships' questions. Having listened to my noble friend Lord Stewartby and the noble and learned Lord, Lord Templeman, I realise that I speak to a very educated audience.
congratulate my honourable friend the Member for Cambridgeshire South-West who successfully piloted the Bill through another place. It was the first time that a Bill to reform treasure trove had been debated in another place, and we did not know exactly what reception it would receive there. The fact that it passed through all its stages in the other place with support from all Members who took part in the debates was due in large part to the tact and skill of my honourable friend.
I am happy to repeat that the Government welcome the Bill which they regard as a much needed piece of legislation. I am encouraged that all noble Lords who have spoken have also indicated their support for it. I am not surprised. I recall that when the noble Earl introduced his earlier Bill, that, too, received a very warm welcome in this House. I was also encouraged to note that the noble Lord, Lord Donoughue, who at that time spoke for the Opposition, welcomed the Bill, as did the noble Lord, Lord Beaumont of Whitley, who spoke for the Liberal Democrats. This evening the noble Lord, Lord Morris of Castle Morris, and the noble Viscount, Lord Falkland, were equally felicitous.
I should like to deal with some points raised by your Lordships. The right reverend Prelate the Bishop of Bristol referred to the concerns of the Church of England that the Bill might have the effect of depriving the Church of its property. It is important to remember that Clause 4 specifically states that the rights of prior owners and their heirs are protected. Therefore, any objects which can be shown to belong to the Church will not be covered by the Bill. I also reassure the House that the Church will be consulted on the code of practice to be drawn up under the Bill. I think of St. Cuthbert's treasures in Durham Cathedral. I can reassure the right reverend Prelate that the future of such relics remains secure.
The noble Viscount, Lord Falkland, asked about fines. The best I can do is to quote the proceedings of the House of Commons Standing Committee during the course of which my honourable friend said:
"The fine is set according to the standard scale which is regularly increased as the need arises. We considered carefully whether the maximum penalty would be sufficient, and on balance we believe it is best to leave things as they are. One consideration is that if the penalty were to be increased significantly it might no longer be a summary offence and would become an indictable offence, with all the attendant complications of going to the High Court. In the circumstances it is proper to leave such matters to the jurisdiction of the magistrates' court. The fine can be increased as time goes on according to inflation".
I should like to discuss how the Bill will affect two interest groups: metal detectorists and landowners. The Bill places no restrictions on the use of metal detectors and we have repeatedly stressed that any detectorist behaving in a law-abiding manner will have nothing to
1338
fear. My honourable friend the Minister of State in another place gave the following assurance when speaking in the Second Reading debate on 8th March:
"Neither the Government nor the European Union has any plans to ban or otherwise restrict responsible metal detecting … The Government willingly acknowledge that, in recent years, metal detectorists have discovered many objects of great importance for the nation's heritage".—[Official Report, Commons, 8/3/96; col. 584.]
My department, as noble Lords will be aware, has had several meetings with the National Council for Metal Detecting. I believe that these have been very useful to both sides in understanding each other's position and five amendments have been made to the Bill as a result. That amounts to a significant package, without weakening the Bill's archaeological impact.
I was grateful to my noble friend Lord Stewartby for his support regarding coroners. I should like to take up the point made by my noble friend Lord Radnor who was worried about the requirement in Clause 8 that finders should report their finds within 14 days. I can reassure my noble friend that guidance on how finds should be reported will appear in the code of practice but we shall want to make it as simple as possible. He asked how easy it is for finders to determine the metal content of their finds and who stands the expense of deciding whether an object is treasure. The answer to his first query is that minimum precious metal content was raised from 5 per cent. to 10 per cent. during the Bill's passage through the other place. It should normally be visible to the finder if an object contains that much gold or silver, but our advice is likely to be, "If in doubt, report it."
In answer to my noble friend's second question, finders and landowners will not be liable for any expenses under the Bill. The cost of determining whether an object might be treasure will be borne by the body which is asked by the coroner to give an opinion—normally the relevant national museum, the British Museum or the National Museum of Wales.
I should now like to say a few words about how the Bill will affect landowners and the question of rewards. I hope I shall answer the queries of the noble Viscount, Lord Falkland. The Bill strikes a fair compromise between the interests of finders and landowners, which are not necessarily the same.
The current practice is that the Crown offers treasure troves to museums which must pay the finder a full reward if they wish to keep them; otherwise, the objects are returned to the finder. At present landowners are not eligible for rewards under any circumstances—not even if the finder has been trespassing, provided he has reported his find promptly. Rewards will still be payable when museums wish to acquire treasure. However, the Bill will make landowners and occupiers eligible for rewards for the first time. It also gives them the right to be informed of finds of treasure which have been reported from their land. For those reasons, among others, I understand that the Bill has the total support of the Country Landowners Association and the National Farmers Union.

1339
Detailed guidelines on how rewards are to be paid will be set out in the code of practice provided for in Clause 11. The code will be drawn up in consultation with interested parties; for example, bodies representing landowners, the Church of England, metal detectorists and museums. As a further safeguard, the code will have to be approved by both Houses of Parliament through the affirmative resolution procedure before the Bill can take effect. Obviously, it would be wrong for me to anticipate here what may come out of the consultations on the code of practice. However, I can remind the House of the statement that I made during the Committee stage of the noble Earl's Bill in this House two years ago. I said:
"I cannot emphasise too strongly that our paramount objective is to encourage the reporting of finds. We clearly need to ensure that adequate incentives to finders are preserved under any new arrangements. At the same time we want to discourage wrong behaviour".—[Official Report, 23/3/94; col. 733.]
Those are the principles that will guide us.
In fact, we envisage that landowners and occupiers will be eligible for rewards under certain circumstances; for example, if the finder has clearly been trespassing. Thus, where there is clear evidence that the finder has been intentionally and knowingly trespassing for the purpose of searching for treasure we would not expect him to be eligible for a reward. But in the great majority of cases, where the finder has permission to be on the land, we expect that the department would comply with any arrangement made between the finder and the landowner over the division of any reward.
Equally, I think it important that we retain a certain amount of discretion in the payment of rewards. We know from experience that some cases that are not straightforward currently arise. There is a very real risk that a provision stating that under no circumstances are finders who are trespassers to be eligible for rewards would be a serious disincentive to the reporting of finds. It could drive many such finds onto the black market and possibly lead to their being exported without a licence, which would achieve nothing.
My noble friend Lord Radnor asked about museums not being obliged to purchase finds. Museums can choose whether or not to purchase finds. They must find the money from their own resources. I noted the remarks about the Lottery made by my noble friend Lord Renfrew. Certainly he would not expect me to answer on anything financial tonight. Any objects which the museums do not want or cannot pay for will be returned to the finders. It is as simple as that.
My noble friend Lord Radnor also asked about Clause 10(6) which provides that the payment of the reward is not enforceable against a museum or the Secretary of State. That confirms that rewards will be ex gratia, as is the case at present. However, I assure my noble friend that we expect to continue paying rewards whenever a find is acquired by a museum, as at present. If no museum acquires the find, then, as at present, we would expect to return it.
I sympathise with the anxiety of my noble friend Lord Radnor about the need to maintain the confidentiality of findspots. I can assure him that it is
1340
perfectly possible to keep the location of findspots confidential. All those concerned in dealing with such finds—archaeologists, museum curators and coroners—are increasingly aware of the dangers of releasing such information publicly. For example, often at treasure inquests coroners do not make public the place where treasure has been found. As a matter of course, the British Museum consults local interests as to how best to refer to the findspots of treasure troves. It would certainly be possible to include guidelines to that effect in the code of practice.
With his great knowledge, my noble friend Lord Renfrew set out many of the facts about portable antiquities. The Government see treasure trove reform, important though it is, as just one part of the problem. The great majority of archaeological objects that are found will still fall outside the scope of this Bill. As the noble and learned Lord, Lord Templeman, said, a recent survey undertaken by the Council for British Archaeology has estimated that every year in England and Wales as many as 400,000 objects of archaeological interest are discovered.
It is important to distinguish between the public acquisition of finds and the recording of them. Treasure trove provides for national and local museums to have in effect the right of first refusal to certain finds. On the subject of recording, there is widespread agreement that the reporting of finds, so that they can be properly recorded, is of key importance—more important than public acquisition. But the noble Earl's Bill will make only limited adjustments to the classes of objects that are legally required to be reported and there would continue to be no legal requirement to report many other important categories of find.
For this reason we have published a discussion document on portable antiquities which seeks views on possible measures to improve the recording of all archaeological objects, not just those covered by the law of treasure trove or this Bill, in the belief that current arrangements are, except in one or two areas, not working well. The Government accept that there is an urgent need for action to record these objects as they are irreplaceable and of great importance for the nation's heritage. The portable antiquities document looks at the relative merits of voluntary and compulsory systems for the recording of finds. Under a voluntary system, the Government would draw up, in consultation with representatives of museums and archaeological organisations and also of metal detectorists, a voluntary scheme for the recording of archaeological objects found in England and Wales. One of the advantages of such an approach is that it would not require primary legislation and thus, providing general agreement for it can be obtained, it could be introduced with the minimum of delay. The document states that the Government's provisional view is that a voluntary scheme offers the best solution.
Last year the Council for British Archaeology established a standing conference on portable antiquities, bringing together all the leading archaeological and museums bodies in order to reach a consensus on these issues. I understand that my noble friend Lord Renfrew played a leading role in this

1341
process. The standing conference met again on 1st May and I have been encouraged to learn that it unanimously welcomed the proposals for a voluntary scheme.
I think we should recognise that this new approach means that the archaeological world has moved substantially in favour of a spirit of co-operation with metal detectorists and away from earlier bad relations. I like to think that my department has helped to move that process along. I know how hard officials have worked on the issue. I understand that antiquities dealers also welcome a voluntary approach.
Lastly, I know from discussions that officials from my department have had with metal detectorists that they would also participate in a voluntary scheme; so I believe there is every likelihood that a voluntary scheme will win general support.
This Bill is a classic example of the art of the possible. We see it as a modest measure to extend the protection currently afforded to certain finds of gold and silver coins and objects to a slightly wider range of archaeological finds and to iron out some of the anomalies of this medieval law. The main aim of the Bill, therefore, is to clarify exactly what type of find should be reported. At present, this is very unclear and is the cause of much confusion.
The Government feel that the most encouraging sign for the future lies in the fact that there is so much co-operation generally. Taken together, the Bill and the proposals in our discussion document on portable antiquities represent the best chance yet to secure improvements in the current arrangements for the acquisition and recording of portable antiquities which we recognise are less than ideal.
9.45 p.m.
The Earl of Perth: My Lords, it is very late but I should like, first, to thank the noble Baroness, Lady Trumpington, for her response. If I may say so, the noble Baroness has done it again: she has summed up the whole debate in under 20 minutes. What a great achievement!
Remembering the time factor, I want, nevertheless, to thank all speakers who have taken part, although I shall not mention any of them by name. I am vastly excited by the general support that has been expressed, especially from the Labour and Liberal Benches. We can go forward, confident that we have a real chance to see the Bill reach the statute book.
I am also pleased that those with worries on the matter like the noble Earl, Lord Radnor, and the right reverend Prelate the Bishop of Bristol had the opportunity to air them. I say that because two things have happened. First, we have heard many of the answers to those anxieties, and, secondly, they can either be removed by further discussion or taken care of in the code of practice.
Along with all the details of the Bill, we have also covered a great deal of the ground on portable antiquities. It is most important that that should be done on a voluntary basis. It is a case of the two going along with one following the other very quickly, if not simultaneously hand in hand. One speaker used the
1342
word "pragmatic" in relation to the Bill, and I also heard it said that the Bill represents the art of the possible. I believe that those two descriptions fit it admirably. It is not a great sweeping undertaking or happening, but it will accomplish much of what we want for the history and safeguarding of the treasures of England and Wales.
I shall conclude my final speech by asking the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Offensive Weapons Bill
9.48 p.m.
The Earl of Lauderdale: My Lords, I beg to move that this Bill be now read a second time.
The Bill amounts to a further critical step on society's road to confronting the evil of knife carrying and the use of knives which has grown up in a culture of the glamorising of violence generally, not least among the immature and in particular the under-sixteens. Indeed, only today the Evening Standard carried a headline regarding schoolboy muggers involved in a cowardly attack on a woman of 72. It was not a knife attack, but it was an attack. That is the culture of violence that we are talking about.
The crux of the Bill is to make evil-intentioned knife carrying legally offensive and, at the same time, enable the police to arrest anyone carrying a knife without good, sufficient and innocent reason, whether in public or on school premises. At first sight that may seem fairly simple. But we have to fit this into the format of existing law and ensure first, that the police have the power of immediate arrest; and, secondly, make the punishment of crime, which could well mean gaol, really effective. Two principal Acts bear pretty comprehensively on this area. They are the Prevention of Crime Act 1953 and the Police and Criminal Evidence Act 1984. Tonight's Bill would build on both but amend them. The Bill proposes clear measures to deal with a clear evil. Police officers who are in contact with those carrying knives have no doubt that there is a growing knife culture among young people. We must do everything we can to face up to that, which is what the Bill does.
In a worsening trend, the number of convictions for carrying a knife in public without good reason under Section 139 of the Criminal Justice Act shows a rise in England and Wales from 1,853 in 1993 to 2,502 in 1994. That is a considerable increase. Recorded offences of violence against the person involving a sharp instrument continued to rise in the Metropolitan Police force area. Indeed, between April 1995 and February this year—the latest period for which we have figures—there were 2,664 such offences, as against 2,550 in the previous year. Such offences, as a percentage of all offences of violence in the Metropolitan Police force area, rose from 6 per cent. to nearly 8 per cent. That is a serious rise indeed.
The Bill was initiated in another place—where it had an extensive Committee stage—by the honourable Member for Sutton and Cheam, following the fatal

1343
stabbing of headmaster Philip Lawrence. That painfully focused society's attention on the menace of illicit knife carrying and generated calls for strong measures. But the Bill is no mere knee-jerk reaction. As introduced in another place by my daughter, to whom should go credit for an imaginative initiative, to say nothing of a whole mountain of related research, it is based on proposals that were already under consideration by my right honourable friend the Home Secretary, in consultation with the Association of Chief Police Officers whose views on the practicalities of handling this measure are important.
These proposals may be found in the Bill at Clauses 1 to 3, which build directly on the existing legislation; namely, the Prevention of Crime Act 1953 and the Police and Criminal Evidence Act 1984. It may be helpful if I describe the legislation already bearing on knives and offensive weapons.
Controlling the availability of knives is full of problems. Ideally of course we would like any controls which would prevent knives from getting into the wrong hands. But knives have many legitimate uses and can be found in every kitchen and every garden shed. Therefore the Bill addresses this problem with a bold measure to prevent the sale of knives to people under 16. That measure is contained in Clause 6, to which I shall refer presently.
The Restriction of Offensive Weapons Act 1959 already bans the sale and importation of flick knives and gravity knives. Another 14 articles, of a truly lurid character—a long and gruesome catalogue—were also banned under the Criminal Justice Act 1988, Section 141. I ask noble Lords to prepare themselves to hear a grim list. These include a thing called the belt buckle knife which has a buckle which incorporates or conceals a knife. There is a butterfly knife which has a blade enclosed by a handle designed to split down the middle—without using a spring—to reveal the blade. Then there is a Death Start—a nasty name in itself—which is a hard plate having three or more sharp radiating points, and is designed to be thrown. Then there is a footclaw which comprises a bar of metal or other hard material with protruding spikes which is strapped to the foot. Then there is a handclaw, which is the same sort of thing but is worn around the hand. There is also the knuckleduster which comprises a band of metal or hard material and is worn around the fingers. There is a knife, which I take it comes from South-East Asia, which is called a Kasuri Gama. It comprises a length of rope, wire, cord or chain attached at one end to a sickle—at the end of a rope. There is also a Kyoketsu Shoge which is similar but is attached to a hooked knife. Then there is a push dagger which comprises a knife where the handle fits within the user's clenched fist while the blade protrudes from between two fingers.
The catalogue illustrates the depth and the antisocial wickedness of the whole revolting culture thrown up by glamorising violence, but because of the difficulty of controlling the availability of knives which may lie
1344
innocently enough in any kitchen or garden shed the Bill focuses on the act of carrying any of those items in public or in a school.
Section 1 of the Prevention of Crime Act 1953 makes it an offence to carry an offensive weapon in public without lawful authority or reasonable excuse. A knife can be regarded as an offensive weapon where the prosecution can prove that the carrier intended to use it to cause injury. In practice, of course, there are many knife-carrying cases where it is not possible to prove such an intention. That is why the Government introduced in Section 139 of the Criminal Justice Act 1988 the actual offence of carrying a knife in public. Under this provision it is not necessary to prove intent. To protect the position of people who carry knives for a legitimate reason there are a variety of defences open to anyone so charged. That is the background against which I shall try to describe the proposals in the Bill before us.
Under the Police and Criminal Evidence Act 1984 some offences are arrestable—that is to say, an officer may exercise the power of summary arrest where he has reasonable grounds for suspecting a person to be committing such an offence rather than just standing on the street. That is especially pertinent where the police are trying to establish whether a knife carrier intended to use his knife to cause injury, in which case he would be committing the more serious of the two offences to which I have referred.
Clauses 2 and 3 increase the maximum penalties available for the two offences of carrying an offensive weapon or knife in public. Clause 3 will increase the maximum penalties available for the two offences of carrying an offensive weapon or knife in public. Clause 3 will thus increase the maximum penalty available under Section 139 of the Criminal Justice Act 1988 from the present derisory level of a level 3 fine, set at £1,000, on summary conviction to the maximum available which is six months' imprisonment or a £5,000 fine, or both, and on indictment to two years' imprisonment or an unlimited fine, or both. That is more like it for an offence of this kind. It will enable the courts to impose a suitably severe sentence.
However, where an offence does not fall within the arrestable character unless certain conditions apply, an officer has to take the suspect's details and allow him to go on his way, to receive a summons later if appropriate. That, broadly, is the position as of now.
The mere carrying of an offensive weapon or a knife are not arrestable offences currently. Clause 1 of the Bill will amend Section 24 of the Police and Criminal Evidence Act 1984 to add those two to the list of arrestable offences. Clause 1 will also add the offence of carrying an offensive weapon or knife on school premises, which is proposed in Clause 4. It is pretty clear why. Carrying a knife or offensive weapon in public or on school premises is indeed a serious matter. It is partly to reflect this that these offences should be made arrestable.
There are also good operational reasons for having a power of summary arrest. It is easier to interview someone about other offences which may be associated

1345
with the carriage of an offensive weapon or knife in a formal setting, for instance, at the police station, where that is needed. It will also bring the law of England and Wales into line with that for Scotland which has had this penalty for a knife-carrying offence since 1993.
The offence of carrying an offensive weapon under Section 1 of the Prevention of Crime Act 1953 is more serious than that of carrying a knife under Section 139 of the Criminal Justice Act 1988. That is because where a knife carrier is prosecuted under the former offence, it is necessary to prove that he intended to cause injury. That is the difference and the difficulty. It follows that the maximum penalty for carrying an offensive weapon should be substantially higher than that for simple knife carrying. It is currently set, on summary conviction, at the maximum available and, on indictment, two years' imprisonment or an unlimited fine or both.
To maintain a proper differentiation between the penalties available for the two related offences, Clause 2 proposes to increase the maximum penalty to four years' imprisonment or a fine, or both. I have emphasised the relevance of the offensive weapon-carrying offence or the intent to cause injury by the person carrying it because that is our main concern here. But the offence also impacts on other offensive weapons. Section 1 of the Prevention of Crime Act 1953 defines an offensive weapon as:
"any article made or adapted for causing injury".
It also impacts on the carriage of any prima facie offensive weapon such as a flick knife, a swordstick or knuckleduster.
Clause 4 is the first of two major proposals added to the Bill by government amendment in another place. The death of Philip Lawrence and the Dunblane tragedy have focused attention on school security. To consider this, my right honourable friend the Secretary of State for Education set up a working party comprising representatives of a wide range of interested parties.
At an early stage it became clear that one necessary change was to extend to school premises the offences of carrying an offensive weapon or knife. It is, I am afraid, a reflection of what the police service believes to be a developing knife-carrying culture among the young that we should address this in relation to schools.
Clause 4 is a sensible measure to overcome the ridiculous anomaly under which someone commits the offence of carrying a knife or offensive weapon in public at one moment yet ceases to be guilty of the same offence the moment he steps through the school gates. Clause 4 will also give police officers the necessary associated powers of entry to school premises, plus the power to search for and seize any such article. This is in line with their existing powers.
The clause recognises that there will be cases where having a knife on school premises is perfectly legitimate and provides a variety of defences which are the same as those available for the existing offence in public, except that the further defence of having the article for educational purposes is added. Clause 5 proposes a technical amendment to Scottish legislation on offensive weapon carrying.
1346
Finally, I come to Clause 6 which proposes to make it an offence to sell knives and a variety of other articles to people under 16. This proposal, which, as I said earlier, was added by means of a government amendment in another place, is perhaps the most imaginative part of the Bill. There are two ways of attacking knife carrying: one is through giving the police and courts effective powers to deal with the act of carrying. These will be strengthened by the Bill. The other is through preventing or controlling availability of articles which can be used to cause injury.
There is a range of articles, the sale of which is prohibited. I have already given a list of some of them. I know that my right honourable friend the Home Secretary is prepared to add further to the list as necessary.
We cannot, we would all accept, simply ban the sale of all knives. We must look at what is possible. I am assured that it is not possible just to add to the prohibited list the types of knives which many of us find offensive. I have in mind such things as the following articles which have been brought to my attention. Something called the "skulletto" has a short double-edged blade with serrations, with a handle fashioned in the shape of a skull and crossbones. Another which is called the "double cobra boot knife" has a handle fashioned in the shape of two intertwined snakes and is said to be convenient for carrying in a boot. Those knives and a good many others have no legitimate use and simply pander to the immature and the violent. Many of us would like them banned altogether.
The trouble is that much of what we find offensive resides in the names or even the ornamentation given to the articles which, though lurid or unpleasant, are not capable of being defined in law. When all is said and done, those articles in all their essentials are no different from knives which have legitimate uses. If it were otherwise, we could seriously consider banning them too. That is why the Government propose in Clause 6 the radical step of banning the sale of knives to people under 16. They concluded that 16 was the right age limit only after anxious consideration. They decided that the age should not be raised above that. They took account of advice from the police service that a higher age limit would be hard to enforce, especially since people can set up home by themselves at the age of 16 and therefore have perfectly legitimate reasons for buying kitchen knives and so on.
The definition of articles to be covered by the ban has been agonised over in the drafting. One problem was to arrive at a definition which retailers will find workable. On the other hand, the aim has been not to draw the definition so wide that it will include many articles which do not present real danger. For example, we do not want to include carpenters' and mechanics' tools and items of that sort.
The proposed definition nonetheless includes various articles that do not present a danger. Some of those "accidental" inclusions we can live with. The definition will include dinner knives. Drafting legislation to exclude these would be exceedingly messy given, for example, that we would not want to exclude steak

1347
knives. Here, we must take the line that removing the total freedom of people under the age of 15 to buy their own cutlery is a small price to pay for a workable definition.
Certain articles are covered by the definition but can be excluded without blurring the clarity of the offence. My right honourable friend the Home Secretary has announced his intention to exclude from the ban small folding pocket knives and disposable razor blades. Clause 6 will enable him to do this by order. It will be necessary for retailers, including mail order traders, to exercise due diligence in establishing the age of a prospective purchaser. That is only right.
The Bill will strengthen, and add to, the existing law on offensive weapon and knife carrying in a way that promises to be effective in helping both the police and the courts to do their job and in reinforcing the message for those who need to hear that such activity is simply unacceptable in our society.
As some noble Lords will be aware, honourable Members on all sides in another place gave the Bill a positive reception. It is easy to see why. I hope that your Lordships will share this view, bearing in mind that the parliamentary timetable is such that a difficult Committee stage and a possible group of amendments could mean the Bill will be lost altogether. It had a good Committee stage in another place which went on at considerable length. I hope that the House will share this view. I beg to move.
Moved, That the Bill be now read a second time.—(The Earl of Lauderdale.)
The Earl of Balfour: My Lords, with the leave of the House, I should like to make one short comment at this stage. When I was at sea, a sailor was expected to carry a knife. But if he ever misbehaved with that knife, or even threatened to misbehave, the mate of the ship would break off the point of the knife using a vice. I wonder whether the Government will consider allowing the police to do the same with anybody they think is misbehaving in any way with a knife or particularly something with a point on the end. I have no wish to defeat the Bill. The idea is good. However, I thought it worthwhile to raise that point.
The Earl of Lauderdale: My Lords, I thank my noble friend for his intervention. That is a matter for the Minister to answer.
10.8 p.m.
Lord Rodgers of Quarry Bank: My Lords, as the noble Earl, Lord Lauderdale, said, the Bill received a Second Reading in another place on 26th January and reflected deep public concern, particularly following the fatal stabbing of Philip Lawrence. We can all understand such immediate reaction to tragic events. But equally, as the House knows very well, there is always a danger of going too far. What Parliament ought to do is listen to public opinion but not be dictated to by it. Notwithstanding that, this is a useful Bill and I hope it will go some way to reducing violence on our streets.
1348
Parliament should hesitate about any legislation which extends arrest without warrant and the powers of entry on suspicion. But, again, the powers that are in the Bill are justified in this case. I do not believe that we can expect too much in terms of results from the Bill. The prevention of crime depends primarily on resources available to the police and how they are used. Nevertheless, I welcome the Bill as an acceptable measure.
Perhaps I can add one further word. As the noble Earl said, the Bill was discussed at considerable length at the various stages in another place and in the course of those continuing debates references were made to the Advertising Standards Authority, of which I am chairman. Perhaps I may change my hat and move in spirit to the Cross-Benches for a brief moment and say this, though I doubt whether there will be any uncertainty about the matter in this House.
The Advertising Standards Authority has an important role in maintaining acceptable standards in the non-broadcasting media, and that would include acceptable standards in advertising offensive weapons. It works to a code designed to represent the public interest and broadly to reflect changes in it. But it has no power to ban advertising and should not have such powers. What is or is not legal must be a matter for Parliament alone. I mention that because it should be borne in mind. I am sure the Advertising Standards Authority, if called upon, will carry out its proper duty in that respect. For those who may be interested, the Advertising Standards Authority conducted a piece of research earlier this year on weapons advertising. If any Member of your Lordships' House would like a copy of that, I can arrange for it to be made available.
I welcome the Bill. I hope it will have a speedy passage and make some contribution at least to a problem that we all recognise and which is certainly much identified in the public mind.
10.12 p.m.
Lord Morris of Castle Morris: My Lords, as the wholly inadequate substitute for my noble friend Lord McIntosh of Haringey I am happy to say that we on these Benches or, rather, I on this Bench, having carefully considered it, am fully in support of the Bill which may well make a serious contribution to reducing the level of violent crime in this country.
The honourable Member for Sutton and Cheam, who I believe is not unknown to the noble Earl, Lord Lauderdale, in introducing the Bill's Second Reading in another place, immediately drew attention to the words of Frances Lawrence, the widow of the murdered headmaster, when she said:
"A knife is an inanimate object, and it needs a human being to invest it with murderous properties".
How right she was, remembering that her husband had recently been stabbed to death outside the gates of his school when he bravely intervened to try to protect one of his pupils from a violent attack. She went on to mention the case of John Killick of Scunthorpe, a security guard who was stabbed to death last December. She drew attention to the pensioner Frank Dempsey who

1349
died after being stabbed in the throat, and also to Imtiaz Begum and her three children who were killed with a nine-inch kitchen knife. They were stabbed to death with an ordinary kitchen knife.
The honourable Member reminded us of the specific figures: of the 677 people who were the victims of murder in this country in 1994, 236 were stabbed. In London 41 per cent. of the crimes of murder involved knives or other sharp instruments and the number of people mutilated, injured or wounded by knives probably runs into many thousands.
The proposals which the Bill makes are sensible, they are clear, and they are sufficient, in every sense but one, to which I will return. The arrest without warrant for offences of carrying offensive weapons is a very necessary reform. Clauses 2 and 3, which increase the penalties, are a proper deterrent in my view. The offence of having an article with a blade or point on school premises is sadly an essential improvement to the law as we now have it, although it seems so sad that it should, in a sense, be closing the stable door after the horse has gone. The sale of knives and articles with a blade or point to persons under 16 is a long overdue restriction for which we should all be grateful.
My honourable friend Mr. Alun Michael made it clear at all the Bill's stages in another place that the Bill has the entire support of the Labour Party. He drew particular attention to the need that the law should be changed to allow the police the power of arrest for the offence of carrying an offensive weapon, although he took the liberty to point out that that was first urged by Jack Straw in 1995. The Labour Party also tried to include a ban on the advertising of offensive weapons, to which the noble Lord, Lord Rodgers, drew attention. It was rejected in another place by the Government as flawed and impracticable. We see what they meant but we are not convinced.
We would suggest that amendment would be desirable if it were not for the fact that an amendment puts into danger the timetable of the Bill. It may be that no amendments can be allowed; otherwise the Bill will fall in the Commons on 12th July, and that would be tiresome and regrettable. But if a way could be found to control advertising offensive weapons of the kind the noble Earl has read out to us, which are of no possible use in a kitchen or anywhere else and are simply means of mutilating other people, this would improve the legislation and remove what is unquestionably a temptation and often an incitement to violent crime.
With that having been said, we support the Second Reading, and we shall assist the Bill in its progress through your Lordships' House in every way that we can. So I can say to the noble Baroness the Minister, "It's a fair cop, guy, and we'll come quietly".
10.18 p.m.
Baroness Blatch: My Lords, perhaps I may first of all say that the noble Lord, Lord Morris of Castle Morris, is no poor substitute for his colleague, the noble Lord, Lord McIntosh of Haringey. We have enjoyed his spirited defence of the Bill and his support for it.
1350
This has been a brief but important debate. As my noble friend Lord Lauderdale has indicated, the Bill as introduced was closely based upon proposals which were previously under consideration between my right honourable friend the Home Secretary and the Association of Chief Police Officers, and which therefore naturally have the full support of the Government.
Other proposals were added to the Bill as a result of government amendments, to deal with knife carrying in schools and the sale of knives to people under the age of 16.
The menace of knife carrying, which has been addressed by all who have spoken in the debate, particularly by young people, is one which deserves to be combated with the strongest possible measures. This is what the Bill aims to do. The Government are grateful to my noble friend Lord Lauderdale for agreeing to take forward this important measure and for the support which all of the proposals in the Bill have received on all sides of the House.
It has been made clear during the passage of the Bill that some examples of weapons advertised in the printed media are a cause for concern. Here I must recognise the position that is held by the noble Lord, Lord Rodgers of Quarry Bank. The Advertising Standards Authority seeks to ensure that advertisers comply with a code which, among other matters, states that advertisements should not contain anything which might condone or encourage violent or anti-social behaviour. The code is, I believe, right—and I believe that the Advertising Standards Authority exercises the right degree of sensitivity in judging whether advertisements are in breach of the code. We nonetheless need to explore whether more can be done. I take the spirit of what the noble Lord, Lord Morris of Castle Morris, had to say on the subject. It has been discussed in some detail in the other place, where a Home Office Minister has said that he will discuss with the Advertising Standards Authority its approach, its sanctions and the discipline that it brings to the advertising industry. We should now await the outcome of those discussions.
However, I believe that we need to be realistic about what can be achieved in further controls on advertising. In the first place, in general the Advertising Standards Authority is successful in ensuring that the code is adhered to. In the course of its recent survey of advertisements for guns and weapons, it has come across a small number of cases in which the advertising of weapons is questionable. It is pursuing its criticisms with those concerned. We need to see the outcome of its efforts in those particular cases.
It has been implied that the ASA's effectiveness is hampered by the fact that it is not applying statutory controls to advertising. In fact, the reverse is true. I give the example of the offence that it takes at the use of the title, "Knives, Knives, Knives" in a knives' advertisement. I doubt very much whether any statutory control could be devised which would come anywhere near exercising that sensitivity of judgment let alone applying it. If, of course, the advertisement incites a person to commit a criminal offence, the advertiser

1351
himself is committing an offence under existing law. Introducing a lower level of incitement in relation to the printed media is very problematic. But as I say, we must await the outcome of the Minister's discussions with the Advertising Standards Authority before we can usefully take this discussion further, but I take very seriously the point that has been made.
In reply to the point made by my noble friend Lord Balfour, we would say that in any of the kinds of circumstances described by him it would be far better that the police confiscate the knife. They have the power to do so. That is obviously a much better solution.
I believe that precedent has been established by this Bill, having been introduced so ably in another place by the honourable Member for Sutton and Cheam, who is not a million miles away from me at this moment and who is the daughter of my noble friend Lord Lauderdale. The proposals in the Bill represent important protective measures and I hope that it will be given a Second Reading.
10.22 p.m.
The Earl of Lauderdale: My Lords, in rising to thank my noble friend the Minister for her helpful lead and encouragement on this Bill, I first apologise to the House for my speech which was a sheer gabble. I read it fast because my medical bedtime is in fact nine o'clock. If it is found tomorrow morning that someone has been bludgeoned, not with a knife, but with a rolling pin, that will be the penalty I have paid for being late home. That is why I read my speech at such speed and in such a gabble. I apologise to noble Lords.
I also thank the noble Lord, Lord Rodgers of Quarry Bank. I had it in mind to say something about the Advertising Standards Authority. He is the chairman, and he took the trouble to be here and to sit late. I thank
1352
him and, through him, his office, for the 1,000 words of wisdom on this subject which I managed to condense to about 50 for my own purposes. I did not use them all in the end because time was getting short. I ask the noble Lord to thank his office for the trouble it went to in order to give me the information.
I thank my noble friend Lord Balfour. The whole object of the Bill is to stop people carrying these knives in the first place. He is a wise man. I had a friend who was in America and who was involved in a fight with a man who had a knife. I am glad that my noble friend is with us. My friend broke off the point of the knife that was threatening him and thank God that he did.
I thank noble Lords for their attention and kindness at this late hour. At the risk of possibly misquoting Gilbert and Sullivan, perhaps I may say:
"My object all sublime
I shall achieve in time—
To let the punishment fit the crime—
The punishment fit the crime".
That is what we want. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Belfast Charitable Society Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.

City of London (Approved Premises for Marriage) Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.
House adjourned at twenty-five minutes past ten o'clock.