Lords Sitting of 17 February 1997

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

Millennium Funding: New Churches
Viscount Mersey Viscount Mersey asked Her Majesty's Government:
Whether the Millennium Commission is considering funding the building of new cathedrals and churches.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, the Millennium Commission is not considering any proposals for new cathedrals or churches. It is, however, considering a number of bids submitted by churches and Christian organisations, including applications for the completion of St. Edmundsbury Cathedral and the adaptation of more than 350 rural churches to provide community facilities.
Viscount Mersey: My Lords, I thank my noble friend for that reasonably satisfactory reply. Is he aware that the Moslems are building 100 mosques to mark the millennium and yet it is not a Moslem millennium but is a Christian millennium? Should we not abandon that dome which is being built at Greenwich and build instead a large and lasting religious monument to see us through to the next millennium?
Lord Inglewood: My Lords, of course, the millennium begins as a Christian festival. The Moslems' programme of mosque building does not involve any Millennium Commission money. I do not believe that there is any incompatibility with the proposals for the millennium Exhibition and the origins of the millennium itself.
Lord Marsh: My Lords, will the noble Lord explain to the House how one justifies building more churches for smaller congregations?
Lord Inglewood: My Lords, that is obviously a matter primarily for the Church and not the Government. If the Church has the appropriate amount of money and wishes to spend it in that way, then that is a matter for the Church.
The Lord Bishop of Southwark: My Lords, is the Minister aware that there is great appreciation within the Church for the very considerable number of cathedral and church projects which have been included by the Millennium Commission in its recently published long list of applications? Can the Minister say anything about the possibility of church projects which have failed to be included on that list at present being allowed to re-present modified or remodelled proposals for the future?
Lord Inglewood: My Lords, there are three rounds for the so-called millennium projects. The third round closed relatively recently. It is unlikely but possible that there might be a fourth round and, were that to occur, it would be possible for projects, including any projects connected with the Church, to be resubmitted.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that four of the Welsh cathedrals date from the last millennium and therefore do need a little repair? Will he give me an assurance that that will be taken into consideration?
Lord Inglewood: My Lords, the national heritage side of the lottery deals with repairs to churches or other buildings. I am sure that if a properly worked out proposal in connection with a church or a cathedral is submitted to the National Heritage Memorial Fund, as a lottery distributor, it and English Heritage will treat it very favourably.
Lord Cledwyn of Penrhos: My Lords, I only hope the Bishops will agree with lotteries as a possible source.
Lord Inglewood: My Lords, that is a matter for the Bishops.
Lord Taylor of Blackburn: My Lords, following on from what the right reverend Prelate asked, perhaps I may ask the Minister whether there is any possibility for churches and cathedrals which have failed in their applications to re-present them? For example, in my own area in Blackburn, the cathedral, along with the partnership of industry and commerce, put forward proposals. Is there any prospect of success were those proposals to be resubmitted?
Lord Inglewood: My Lords, as I explained to the right reverend Prelate, my understanding is that the third round of projects has closed but, if anyone has another project, it is worth bearing in mind that there may be a fourth round. It is still not clear whether there will be. But that is the point at which resubmissions should be made.
Lord Monkswell: My Lords, how many cathedrals and churches in England were built for the last millennium and are still standing?
Lord Inglewood: My Lords, I am afraid that I am not in a position to answer that question. It was a long time ago.
Viscount Brentford: My Lords, I was interested to hear what my noble friend said about community centres. Am I right to understand that the Millennium Commission would welcome applications from projects for the construction of buildings which would serve both as a worshipping community for Christians and also as a community centre for the local population?
Lord Inglewood: My Lords, the projects to which my noble friend has referred may well commend themselves to the commission. There are two key criteria for millennium support: first, the project must enjoy public support generally; and secondly, it must make a substantial contribution to the life of the community which it is designed to serve.
Lord Kennet: My Lords, are the Government aware that an enormous majority of the churches built at about the time of the last millennium were in fact built after it to express gratitude for having survived?
Lord Inglewood: My Lords, I am most grateful to the noble Lord for his helpful contribution.
Lord Donoughue: My Lords, does the Minister agree that what future generations would like to emerge from those vast amounts of money which are being spent are buildings of great beauty and architectural quality? The commission is producing the landmark projects, which are excellent. But does he not agree that in particular in this country we should welcome a great lyric arts centre of great architectural beauty? Will he pass on to his colleagues who chair and run the commission the thought that that would be well worthy of support?
Lord Inglewood: My Lords, the noble Lord is quite right. One of the other criteria, upon which I did not enumerate, by which the Millennium Commission judges possible projects is that they should be of high architectural design and represent good environmental policy. If one looks at the schemes that are coming forward, it will be seen that that is a characteristic of the projects. Perhaps I may single out one of them. Perhaps the most striking of all is the proposed performing arts centre in Bristol, which is a most extraordinary and exciting design.

Dogs: Assistance to the Disabled
2.44 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they will consider introducing a care allowance towards the cost of working dogs to assist blind, deaf or disabled people.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): No, my Lords; attendance allowance and disability living allowance are available to help severely disabled people with the extra costs incurred because of the effects of their disability. For some, those extra costs will include the upkeep of their dogs.
Lord Molloy: My Lords, I thank the Minister for that reply, 50 per cent. of which I can accept. However, is the Minister aware that the training of dogs is extremely costly? For example, a former serviceman, who has lost his hearing because of the wounds he suffered, has to find £2,500 to train his dog. Moreover, a guide dog for the blind costs £3,500. To be fair, many charities help
450
in the training of dogs and with the cost of vets' fees. Therefore, would it be possible for our Government to make their contribution to help those who have been blinded in the service of their country? Can they not have a dog free of charge? Indeed, no matter how people became blind or why they need a dog, they should be assisted, especially in this country, which is noted to be a nation of animal lovers. Will the Minister consider what help can be given to those who need some assistance and who want a dog to help them in the course of their lives?
Lord Mackay of Ardbrecknish: My Lords, as I have already explained to the noble Lord, Lord Molloy, the two benefits—namely, attendance allowance and disability living allowance—are designed to help with the additional costs that people have to meet because of their disability. In the case of the group of people that we are considering, that includes blindness. The Guide Dogs for the Blind Association does a great deal of good work. It has something like 4,250 guide dogs assisting blind people in Britain at present. The association trains the dogs and provides them. My understanding is that the association can give approximately £18 per month to a blind person to help with the cost of the dog, plus vets' fees. Moreover, the Hearing Dogs organisation also provides insurance cover for the cost of vets' fees and will provide help for dog food and the like in the case of hardship.

Gibraltar: European Parliament Elections
2.46 p.m.
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
What consideration is being given to enable Gibraltarians to vote and stand for election to the European Parliament through the United Kingdom, under Annex II to the 1976 Act on direct elections.
Lord Inglewood: My Lords, we are well aware of the strength of feeling in Gibraltar about voting in European Parliament elections. However, permitting Gibraltarians to vote or stand in European Parliament elections on behalf of Gibraltar would contravene Annex II to the 1976 European Community Act on Direct Elections. Amending Annex II would require the unanimous agreement of all member states.
Lord Merrivale: My Lords, I thank my noble friend the Minister for that Answer, which was not totally unexpected. Nevertheless, will my noble friend agree that my noble friend Lady Chalker wrote to me on 28th June 1994 saying:
"The suggestion that Gibraltar might be attached to a UK European constituency is … problematic"
However, my noble friend did not say that it was impossible. Further, can my noble friend the Minister confirm that the citizens of Gibraltar are United Kingdom nationals for Community purposes?
Lord Inglewood: My Lords, I can confirm that the citizens of Gibraltar are United Kingdom nationals for Community purposes. My noble friend has made some of the points regarding the problems inherent in the proposal he described.
Baroness Blackstone: My Lords, while I accept the Gibaltarians wish to vote in European Union elections, can the Minister confirm that Gibraltar does not contribute to the EU budget and that, therefore, the right of direct representation is a little unclear? Will the noble Lord also comment on how the current system regarding a group of British MEPs representing Gibraltar in the European Union is working?
Lord Inglewood: My Lords, the noble Baroness is right about contributions to the European Union community budget. Gibraltar's foreign affairs are dealt with through the United Kingdom Government. When it is appropriate for representations to be made in the European Parliament as they affect Gibraltar, I understand that this can be done both through UK MEPs and, for that matter, through any other MEPs who might wish to raise such matters.
Lord Kennet: My Lords, is this not another matter where we may look to the Church for guidance and precedence? When I was young—and, for all I know, this is still so—there used to be a Bishop of Fulham and Gibraltar. If there can be such a person, why should there not be a member of the European Parliament for West London and Gibraltar?
Lord Inglewood: My Lords, the point about Gibraltar applies equally, but slightly differently, in the case of the Channel Islands and of the Isle of Man. They all have special and individual constitutional links both with this country and, through this country, with the European Union which underlie their not sending MEPs to the European Parliament. As the noble Baroness, Lady Blackstone, commented, Gibraltar makes no contribution to the European Union budget. Moreover, it is outside the common Customs union, the common fisheries policy, the common agricultural policy and the rules on VAT. Therefore, Gibraltar is not in a position that is identical to anywhere else in which the Community rule applies.
Lord Merrivale: My Lords, I assume my noble friend the Minister agrees that Gibraltar's status is unique within the European Union. Does my noble friend agree that, if Gibraltar's population is less than one-tenth of the average United Kingdom European constituency, further consideration should be given to conferring a franchise on its citizens through the United Kingdom?
Lord Inglewood: My Lords, my noble friend is right about the uniqueness of Gibraltar. Her Majesty's Government are always anxious to ensure that Gibraltar's interests are most effectively represented and carried forward in Europe. We always endeavour to do our best to that end.

The Economy: Inflation
2.50 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their latest estimate of the underlying rate of inflation in 1997.
Lord Mackay of Ardbrecknish: My Lords, the annual rate of underlying inflation currently stands at 3.1 per cent. However, the Government expect this rate to fall back in 1997. The latest government forecast of underlying inflation was published in the Financial Statement and Budget Report, and showed that inflation was expected to be 2½per cent. in both the second and fourth quarters of 1997.
Lord Ezra: My Lords, I thank the noble Lord for that information. However, will he not bear in mind that some doubts have been cast on that forecast and that in the January figures, although the underlying rate of inflation has remained at 3.1 per cent. as he indicated, the headline rate, much against expectation, rose from 2.5 to 2.8 per cent.? That includes mortgages. In those circumstances, and bearing in mind that the underlying rate in the UK is now running at above the rate on the Continent—for example, the rate in France is 1½ per cent.; half the British rate—does he not agree that the advice from the Governor of the Bank of England was prudent; namely, to have a small increase in interest rates now in order to avoid a larger increase later?
Lord Mackay of Ardbrecknish: My Lords, I am interested to note that the noble Lord, Lord Ezra, presumably on behalf of the Liberal Democrat Party, would like to see an increase in the interest rate. My right honourable friend the Chancellor takes the view that the economic conditions he sees now are the best we have seen in this country for a generation. Mortgage rates are close to their lowest level for almost 30 years. We are the number one choice for inward investment in Europe. Our unemployment figures are coming down. All those factors seem excellent. My right honourable friend the Chancellor and the Governor between them have delivered the best inflation record this country has had for 50 years. Low inflation remains part of our future.
Lord Eatwell: My Lords, that was all very impressive. However, will the noble Lord confirm that in the inflation figures published last week the Government have told us that of the 15 countries in the European Union only three have a higher inflation rate than the UK and the rest have a lower inflation rate? Will he also confirm that over the past year not only has our inflation rate been higher than the European Union average, but it has slowly become higher and higher relative to the European Union average? Will he please explain that lamentable performance?
Lord Mackay of Ardbrecknish: My Lords, I am not sure whether that was the party opposite asking for an increase in interest rates. I must point out to the noble

453
Lord, Lord Eatwell, that five out of the six wise men have said quite clearly that they do not see any need for a rise in interest rates. That was exactly the point of the question. The noble Lord, Lord Eatwell, underlines the point that we need to keep on top of inflation in this country. In the past we have too readily allowed inflation to get out of control. This Government are determined not to allow that. The Governor of the Bank of England and the Chancellor are clearly almost of one mind because the difference of one quarter of 1 per cent. seems to me to be hardly significant.
Lord Brabazon of Tara: My Lords, does my noble friend agree that I find this a somewhat curious argument? We are arguing about differences in inflation of perhaps 0.2 or 0.3 per cent., and differences in interest rates between the Governor and the Chancellor of ¼ per cent. Yet I can remember—as other noble Lords no doubt can—when, under the party opposite, inflation rates were 10 times higher than we are talking about.
Lord Mackay of Ardbrecknish: My Lords, my noble friend Lord Brabazon of Tara is quite right; our inflation record has hugely improved and we are determined to keep that improvement on track. That is why my right honourable friend places such importance on meeting inflation targets. It is also why we are determined to keep government spending tightly under control and why we are determined to make this country an attractive place for people to invest in and produce goods and services in order to sustain the economic recovery we have seen.
Lord Barnett: My Lords, given the excellent situation the Minister has described, will he explain why we have such a high real interest rate?
Lord Mackay of Ardbrecknish: My Lords, the position is of course that the interest rate has to take account of all the various factors in the economy. Last autumn my right honourable friend the Chancellor and the Governor of the Bank of England discussed these matters and were a little concerned about inflation two years from that time. Despite people saying that my right honourable friend the Chancellor would not increase interest rates, he was prepared to do so. We believe that the current interest rate is sufficient to keep the inflation target on course.
Lord Wyatt of Weeford: My Lords, does the Minister agree that, if the party opposite came to power, instead of having a strong pound which is a powerful brake against inflation, we would have a weak pound and inflation would soar?
Lord Mackay of Ardbrecknish: My Lords, it is certainly true that the high value of the pound helps to keep down inflationary pressures. Indeed the CBI today in a report on wages states that there is little pressure on wages at the moment. That, of course, is a helpful factor in keeping inflation under control. The noble Lord, Lord Wyatt, makes a valid point. Who knows what chaos
454
would ensue if the party opposite were to win the election? However, I am confident that we shall not be visited with that.
Earl Russell: My Lords, is there any party opposite the noble Lord, Lord Wyatt of Weeford?
Lord Mackay of Ardbrecknish: My Lords, I did not quite hear that question. I presume it is the usual one, asking me not to direct my fire only at one party opposite because there are two parties opposite. In that case my fire is directed at both of them.
Earl Russell: My Lords, I beg the noble Lord's pardon. I asked whether there was any party opposite the noble Lord, Lord Wyatt of Weeford?
Lord Mackay of Ardbrecknish: My Lords, from what the noble Lord, Lord Wyatt of Weeford, said, he sees the parties opposite the same way as I do.
Baroness Seccombe: My Lords, does the Minister agree that it was good to hear the noble Lord, Lord Eatwell, say that the figures given by my noble friend were so impressive? Does my noble friend also agree that this is the time to congratulate the Chancellor of the Exchequer on his excellent running of the economy? That is particularly highlighted in the horrific rise in unemployment on mainland Europe compared with our month by month reduction.
Lord Mackay of Ardbrecknish: My Lords, my noble friend makes a valid point. One has to look at many factors in the economy. One of the most important factors that used to concern the parties opposite—namely, unemployment—is certainly moving consistently in the right direction. That has been the case for a long period of time. Over the past year employment in our country has risen by 300,000 people. More of our people are in work than is the case with all of our major European friends. Our unemployment rate is significantly below that of Germany, France, Italy and Spain. In the past month or two we have seen some significant rises in unemployment in Germany in stark contrast to the falls in unemployment in this country.
Lord Eatwell: My Lords, has it not been clear that the main element in inflation we have seen this afternoon is the length of the noble Lord's answers, but what we have not had are answers to the questions asked? My noble friend Lord Barnett asked about real interest rates. Will the noble Lord explain why the long bond rate is 1.75 points higher in the UK than it is in either France or Germany? Will he answer my question and explain why our inflation rate is steadily rising higher and higher relative to the European Union average?
Lord Mackay of Ardbrecknish: My Lords, I am sorry if my answers are becoming longer. Part of the reason is I realised that the Question on dogs did not run for long enough and therefore I have plenty of time to answer all of the questions on this matter in some

455
detail. I have already referred to the fact that interest rates are arrived at for a variety of reasons—the state of the economy; how we look vis-à-vis our competitors; and the position in our competitor countries. There is no doubt that in this country over a long period of time, under governments of all complexions, we have not had a good record on inflation. Quite clearly the world market is still suspicious of us. We say clearly that we believe inflation should be kept under control and we are taking firm steps to do that. Perhaps the world markets are not quite so sure about the party opposite.
Lord Sudeley: My Lords, is the Minister aware that, in the view of the Christian Council for Monetary Justice, a basic cause of inflation is that the banks lend out more money than they have? That has been the position since the Tudors when the goldsmiths were the antecedents of our present banking industry.
Lord Mackay of Ardbrecknish: My Lords, my noble friend makes an interesting point. Not being a historian, I am afraid that I have no idea how the Tudors dealt with banking, or anything else for that matter.
However, the banks and financial institutions play an important part in the economy of this country. If my noble friend had been present at the debate on the City, he would have learned of the very considerable inflow of funds to this country thanks to the work of the financial institutions.
Lord Peston: My Lords, I had thought that the whole point of being a bank was to lend out money that it did not have; but that is by the way.
I always enjoy the Minister's long answers. However, I was puzzled by his response to the noble Lord, Lord Wyatt of Weeford. Is he saying that it is government policy to keep sterling as high as it currently is? Is that a state of affairs that the Government like? For example, is that the rate at which they would like to see sterling enter the monetary union if, when the time is ripe, we decide that entering monetary union is in our national interest?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord knows well my arguments and answers on EMU: that we will indeed enter EMU only if we believe that it is in our national interest.
So far as concerns the level of sterling, that is one of the factors that my right honourable friend the Chancellor takes into account. But we do not believe that it is possible to make the level of sterling the primary objective of economic policy. As I have said on a number of occasions, we believe that meeting inflation targets is a vital aspect of keeping the economy on an even keel, with the prosperity increase and fall in unemployment that we have seen.
Baroness Farrington of Ribbleton: My Lords, will the Minister advise the House whether the increasing and prolonged trade deficit figures are a deliberate part of the Government's policy? How will those figures contribute in the long term to the overall battle against inflation?
Lord Mackay of Ardbrecknish: My Lords, we have moved a little away from inflation targets. However, the balance of payments is but one of the many aspects I have already mentioned that we have to look at when considering the economy and the policies that the Chancellor should follow. One of the important aspects about manufacturing industry in particular, but also the invisibles, is the considerable increase in inward investment in this country. If my memory serves me right, we gain about one-third of all inward investment coming from the rest of the world into the European Union. I believe that that is thanks to the labour market policies pursued by the Government.
Lord Taylor of Blackburn: My Lords, does the Minister agree that the price we have had to pay for lower inflation is very tragic? The number of people in gaol, the number of broken homes, the number of children taking drugs are all part of the social price that we have had to pay.
Lord Mackay of Ardbrecknish: My Lords, I do not agree with the noble Lord. I do not see any link between the number of people taking drugs and the inflation rate. What I see and appreciate is the fact that, thanks to the economic policies of the Government, we have seen unemployment falling month by month and year by year. The figure was down 300,000 last year in significant contrast to Germany, France, Italy and Spain whose unemployment figures are rising and are much higher than ours.
Lord Acton: My Lords, bearing in mind that we live in a global economy, does the Minister recall that on 27th January, in reply to a Question for Written Answer, I was told that the most recent International Labour Organisation rate of unemployment for the United Kingdom was 7.9 per cent., for the United States of America 5.2 per cent., and for Japan 3.4 per cent.? Should not the goal of this country be the American rate and ultimately the Japanese rate?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord makes a valid point. If we consider the figures for Japan and the United States, we see the kind of targets for unemployment at which we should be aiming. The United States record over the past decade in creating new jobs is very impressive indeed. It is one that the European Union should be seeking to copy instead of appearing to go in the opposite direction. However, the fact is right: our unemployment is still above the Japanese and United States level. But the most recent figures that I have indicate that the UK is at 7.5 per cent., Germany 9.3 per cent., France 12.5 per cent., Italy 12.2 per cent. and Spain 22.3 per cent. It seems to me that we have something to teach our European friends as regards the labour market.
Lord Acton: My Lords, surely the question is how we are doing on global terms. To say that we are doing better than Weimar levels is no doubt admirable, but surely we should be doing as well as America or, if possible, Japan.
Lord Mackay of Ardbrecknish: My Lords, I absolutely agree with the noble Lord on that. I thought that I made that clear. We have to look at the levels of unemployment in the United States and Japan. That means considering how to create new jobs. I do not have the figures with me but the American creation of jobs in the past decade has been really impressive in contrast to the European figure.
Lord Dixon-Smith: My Lords, does my noble friend agree that the American record on unemployment is particularly impressive because its economy is dependent on a deregulated market in enterprise and, more importantly, a deregulated market in employment, both of which are inimical to a great deal of mainland Europe's practice?
Lord Mackay of Ardbrecknish: My Lords, my noble friend underlines the point I made earlier: that indeed labour market reforms in the United States have led to very considerable job creation which has not been replicated in Europe. However, at least one of the reasons that we are doing better than our European friends is as regards our non-wage labour costs expressed per £100 of wages. Our figure is £15 per £100; in Germany it is £31; and in France it is £41. It is no surprise that firms want to invest in this country, including firms such as Siemens which has announced an investment in the north east of England.

Police (Health and Safety) Bill
3.8 p.m.
Brought from the Commons; read a first time, and to be printed.

Building Societies (Distributions) Bill
Brought from the Commons; read a first time, and to be printed.
Sexual Offences (Protected Material) Bill
Brought from the Commons; read a first time, and to be printed.

Police (Insurance of Voluntary Assistants) Bill [H.L.]
Lord Brabazon of Tara: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Brabazon of Tara.)
On Question, Motion agreed to.

Local Government (Gaelic Names) (Scotland) Bill
Lord Gray: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Gray.)
On Question, Motion agreed to.

Telecommunications (Fraud) Bill
Read a third time, and passed.

Social Security Administration (Fraud) Bill
3.10 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that this Bill be now read a second time.
It is estimated that fraudulent claims to welfare benefits total in excess of £4 billion every year. That is an enormous sum of money, even by the standards of the £90 billion we pay out each year.
The fight against fraud is one of the major challenges facing the Department of Social Security. Indeed, my right honourable friend the Secretary of State said during the Second Reading of this Bill in another place that he regards the rooting out of fraud and abuse as his top priority, and he has translated those words into actions. Year on year, record amounts of fraud have been detected and stopped. The House will be heartened to learn that the department anticipates that its counter-fraud work will save taxpayers £7 billion over the next three years.
Some of the examples of frauds committed against the benefit system would be amusing if the issue were not so serious. Your Lordships may remember that during our debate in November initiated by my noble friend Lord Hayhoe I regaled the House with the story of the marathon-running mountaineer who for 15 years had claimed invalidity benefit. There was a celebrated case a year or so ago where the leader of a local council, claiming benefit on the basis that he was disabled and could hardly walk, was filmed by investigators bounding up the steps of his town hall two at a time. A recent case involved a clerk employed by a local authority who used his position to create bogus accommodation agencies for fictitious claimants to housing benefit. He managed to defraud the system of some £97,000 in a six-month period. After that deception was uncovered, it transpired that he had defrauded another authority for whom he had previously worked of a further £48,000.
We have many cases of organised gangs attempting to defraud the system by using multiple identities. In March last year six people operating a multiple identity

459
fraud in London and the Midlands were each sentenced to between 18 months and three years' imprisonment. They had created 70 false identities and fraudulently obtained about £250,000 in benefit. In December, four men were gaoled for a total of 17 years for masterminding a counterfeiting ring producing forged girocheques. By the time they were caught the gang had cashed over 6,000 forged cheques with a total value in excess of £1.2 million. As the House can see, this is not a trivial matter. It is a very serious matter involving fraud, sometimes on an organised scale, at others on an individual scale.
Despite such attempts to fleece the system, we are having success with our comprehensive anti-fraud strategy. As part of that strategy the Government have placed greater emphasis on anti-fraud initiatives and increased the resources available for this work; improved the training given to investigators and other staff; and improved front-end security to stop fraud entering the system in the first place. In addition, we have introduced a number of specific initiatives such as: the "beat-a-cheat" hotline, which has received over 150,000 calls since its inception in August last year; challenge funding for new and innovative ideas; the spotlight campaigns on benefit cheats in particular areas; and we are beginning the process of introducing the benefit payment card which will virtually eliminate instrument of payment fraud via the book or the girocheque.
However, those intent on committing fraud are becoming more sophisticated and ingenious and as one opportunity is denied to them they seek to open up others. To keep ahead of fraudsters we need to be sure that those dealing with fraud at first hand have the tools they need for the job. The Bill will provide a range of measures which will be of assistance in the fight against benefit fraud.
The Bill will permit the Inland Revenue, Her Majesty's Customs and Excise and certain other government departments to disclose relevant information held by them to the Department of Social Security. The purposes of any such disclosure are limited specifically to the prevention, detection, investigation and prosecution of social security offences and for checking and, where appropriate, amending or supplementing existing social security records.
The intention is that information supplied to the department will be used in data-matching exercises which will compare the information supplied with that we already hold. Where information from another department does not correlate with that held by the DSS the discrepancy can be investigated. The discrepancy may be indicative of fraud, in which case further inquiries will be made; or the discrepancy may simply indicate that the records the DSS hold are wrong or out of date—for example, we may have the wrong post-code, in which case they will be corrected.
Access to this data may, for example, show a person registered for VAT or claiming tax allowances and yet declaring no earnings to the DSS. Or that another is receiving income from savings and investments while not declaring capital for benefits purposes.
460
During the passage of this Bill in another place my honourable friend the Member for Dorset, South related the tale of when he used to run an employment agency in Yorkshire. One day he was visited by an officer of the DSS who was investigating an allegation that an individual was working at his agency and claiming benefit at the same time. When the investigator checked through the agency's records he discovered that one-third of the staff employed there were also claiming unemployment benefit, despite the fact that they were all paying taxes on their earnings. That sort of fraud may be highlighted and uncovered by data-matching. Allowing the Department of Social Security access to Inland Revenue data has the potential to prevent this type of situation occurring.
The Bill will also allow for greater sharing of information by those agencies charged with the administration of various parts of the benefit system. It will improve the efficiency of benefit administration, especially in relation to anti-fraud measures, by allowing local authorities to share data with the DSS and with each other for relevant purposes. Authorities play a very important part in the delivery of the housing benefit system.
Expenditure on housing and council tax benefits totals about £12.5 billion a year. Although local authorities are responsible for administering the benefits, the Secretary of State has a clear duty to ensure the protection of public funds, especially as the majority of the expenditure on benefits and the costs of administration come from the department. Our best estimates indicate that housing benefit fraud amounts to about £1 billion, of which about 15 per cent.—that is £150 million—is fraud by landlords and the other 85 per cent. is fraud by claimants.
In 1993 the Government introduced financial incentives for local authorities to detect and stop housing benefit fraud. I am pleased to say that, nationally, performance in combatting this type of fraud has risen sharply, from £92 million in 1993–94 to £224 million last year.
But this national average masks wide variations in the performance of individual authorities. Some are devoting resources and managements skills to the problem and achieving good results. But others are scarcely addressing the problem and 14 authorities report that they have uncovered no fraud at all.
So, the provisions in this Bill will allow the Secretary of State to examine closely the way in which housing and council tax benefits are administered and to make directions and recommendations as to improvements that might be made. In the case of an authority failing to achieve standards set in these directions the Secretary of State will be able to reduce subsidy payments and, in extreme cases, order the work to be put out to competitive tender, making achievement of the standards part of the obligations under the contract.
However, we do not only want powers to deal with those authorities which are not taking the issue of fraud seriously. We want to help the many which are. This Bill will give two important new tools to local authorities to assist them in their anti-fraud activities.

461
The first will enable them to require landlords or agents receiving direct payments and whom authorities suspect of some impropriety in connection with a claim to benefit to supply details of all other properties they own or have an interest in. This will provide a useful source of information to facilitate the investigation of cases of landlord fraud by making it easier to assemble evidence and to uncover large multiple frauds from a single lead.
The second provision will allow local authorities to appoint inspectors to obtain information from businesses—that is, employers, landlords and letting agents—to check benefit entitlement. This will include a provision enabling them to enter business premises. These powers, which are broadly analogous to those already available to inspectors appointed by the Department of Social Security under current legislation, will prevent unscrupulous landlords and employers from frustrating an investigation by the simple expedient of denying an investigator access to relevant information.
The Bill will create a new offence of dishonestly making false representations or dishonestly failing to notify a material change of circumstances. This new offence is necessary because recent court judgments have compromised our ability to prosecute people under current provisions. In 1996 the Court of Appeal ruled in effect that specimen offences could not be relied on to reflect the full extent of a fraud. The implication for social security fraud is that, unless the defendant agreed otherwise, the court would only sentence on the basis of the specimen offences, which might relate to benefit for a period of just a few weeks out of a much longer period during which the fraud was perpetrated.
It is intended that the new offence is to be used as a continuing offence to deal with cases of serious fraud where benefit was dishonestly obtained over a period of time as a direct consequence of a single false statement or failure to notify changes of circumstances.
This offence will be punishable either, on summary conviction, by a prison sentence of up to six months, a fine of up to £5,000, or both; or, on conviction on indictment, by a prison sentence of up to seven years, an unlimited fine, or both.
The Bill will also extend the current offence, used in more minor cases of fraud, to encompass failure to report changes of circumstances. Many frauds start with a genuine claim. Then the claimant's circumstances change—they get a job, the husband who deserted returns, and so on—and the claimant knowingly omits to inform the Benefits Agency as required. The extension of the offence will ensure that this type of fraud is encompassed.
The Bill will enhance and improve the range of penalties available against those who abuse the system. It will enable the DSS and local authorities to invite a person who has been overpaid, and against whom proceedings for fraud could be instigated, to pay a penalty of 30 per cent. of the amount of the overpayment as an alternative to prosecution.
There are some 100,000 cases a year where the DSS believes that there are grounds for prosecution but only 12,000 or so of those are taken to court. The new penalty
462
will not be offered in all cases of fraud. However, we anticipate that the new provision will mean an additional 25,000 cases per year facing some form of punishment, which should act as a deterrent to others. As well as ensuring that more fraudsters face the consequences of their actions, this will allow the Department to use specialist prosecution resources much more effectively by enabling them to devote more time to preparing the most serious cases for court.
Current legislation permits that overpaid housing benefit paid direct to a landlord may be recovered from that landlord. The Bill will allow recovery to be effected from any other benefit payments due to that landlord, something which is not permissible under current legislation. This will remedy the perverse position we are faced with now whereby an authority seeking repayment from a reluctant debtor with one hand has to continue paying him benefit with the other.
The provision includes safeguards for tenants whose benefit payments are reduced in this way by treating their rental obligation as met irrespective of the fact that a deduction has been made.
The Bill also includes measures to bring procedures for checking the correctness of existing awards of disability living allowance, attendance allowance and disability working allowance more into line with those for other benefits. It clarifies the Department's right to gather evidence to establish the correctness of an existing award of disability living allowance or attendance allowance. It also provides that, where there is doubt about the correctness of an award, the claimant may be required to undergo a medical examination—normally in his or her own home—in a similar way to the existing provision for new claimants.
The Bill also extends to all benefits a requirement that the claimant produce information or evidence to allow a national insurance number to be traced and confirmed or awarded.
Finally, the Bill includes two measures relating to the re-direction of benefit mail. First, it will allow the Department of Social Security or a local authority to require the Post Office, or other postal conveyor, not to re-direct social security mail but to return it to the sender. Secondly, it will allow the DSS and local authorities to obtain information from the Post Office about re-directions—for instance, to check whether payment in respect of one address is being redirected to another.
These provisions will help to counter a common type of fraud whereby the perpetrator sets up false identities in false addresses and then uses the re-direction system to forward the fraudulently obtained benefit payments.
The Bill contains a wide range of important measures to strengthen the hand of the Department of Social Security and local authorities in their counter-fraud work. These measures, taken with other initiatives the Government have introduced or are in the process of introducing, will ensure that fraud investigators have the weapons they need to fight benefit fraud effectively and successfully. I commend the Bill to the House.
Moved, That the Bill be now read a second time—(Lord Mackay of Ardbrecknish.)
3.26 p.m.
Baroness Hollis of Heigham: My Lords, we thank the Minister for introducing the Bill so clearly. With this Bill the Government are finally accepting the argument that we on this side of the House have consistently put to them that there is an unacceptably high level of error and fraud in a wide swathe of benefit payment. That must be stopped. It wastes public money and reduces public support for the welfare state. We want to renew the welfare state; for that to happen the welfare state must regain esteem for its effectiveness and accuracy in delivering benefit as well as for its decency in relieving need and, where possible, encouraging people back into work.
We have also emphasised that, although there is an unacceptably high amount of what I call endemic low-level fraud—the lone parent with the live-in boyfriend, the man on JSA driving a mini cab—which we in no sense condone, we have repeatedly said to Government that they have been irresponsibly lax over the past 18 years in the field of organised benefit crime.
Let me give two examples. First, the loose attitude to national insurance numbers which allows the construction of false identities, a major concern of the Social Security Committee in another place. Our confidence was further eroded when we learned that nearly 80,000 blank birth certificates had gone AWOL.
Secondly, the subject of significance of this Bill, the blind eye that has been turned for so long to organised private landlord fraud. According to the Social Security Select Committee, £2 billion worth of taxpayers' money is wasted every year on housing benefit fraud—£1 in every £5. Much of that fraud is landlord fraud, not tenant fraud. Yet the Government have been soft on it, presumably because landlords rather than tenants were the fraudsters.
We warned Government; Government policy has only made matters worse. Government have cut back on the number of visits to check on frauds from 6.6 million a year under the last Labour Government to only half a million now, although belatedly Government are coming to recognise what folly that cut has been. Until 1993 Government penalised local authorities by their subsidy rules for uncovering fraud; it is therefore not surprising that local authorities did not spend much time uncovering it.
When the Housing Bill was passing through this House last year, the Government persistently refused our efforts to strengthen controls over private landlords. For example, when we tried to require local authorities to license all their houses in multiple occupation and to allow them to keep a register of all properties held by individual private landlords, the Government blocked our amendments. Yet those amendments would have been a significant tool in local authority attacks on landlord fraud.
Housing benefit fraud is of concern because the housing benefit bill is so large. Five times more money is now spent on housing benefit than in 1979: housing benefit then cost £2 billion; it now costs almost £11 billion. That is not simply because the number of claimants has doubled but because Government
464
foolishly deregulated private rents in the late 1980s, saying that housing benefit would take the strain. So the amount of housing benefit claimed by the private sector has risen from £1.4 billion to £5.5 billion since 1985. Twice as many people are claiming four times as much benefit, thanks to the Government's kindness to private landlords.
We do not doubt that housing benefit is sometimes mispaid to tenants who mis-state their domestic circumstances. An adult son may move back home and the mother on housing benefit fails to report it because she does not realise the implications of complex housing benefit rules. Nonetheless, all the evidence suggests that such fraud is far less significant than organised landlord fraud. Because landlords demand direct payment of housing benefit cheques to them before they accept a DSS tenant and thereafter, sometimes in collusion with shady managing agents, they then go on to invent fictitious tenants for fictitious rooms at fictitious rents and enjoy a very affluent lifestyle, courtesy of the taxpayer.
That is not error perpetuated by the confused; nor is it fraud perpetuated by the hard-up or temporarily tempted. It is serious, sustained, expensive and organised white-collar fraud. Hence, in another place at Report stage, the Labour Party called for a specific offence of landlord fraud to target landlord cheats with tough new sanctions. We need that because fraudulent landlords too often conceal their responsibility behind the tenant. Such landlords, who receive direct payments with money passing direct from the local authority to the landlord without going through the tenant, will still try to argue that it is the tenant's job and not the landlord's job to inform the local authority of changes of circumstances. Responsibility for fraud then becomes hard to locate and prove. Yet the Government refused in the other place to accept such amendment.
Likewise, when the Housing Bill was before this House and we sought amendments to require local authorities to licence all HMOs and to be allowed to compile a register of all properties held by private landlords, the Government unwisely resisted our amendments, which would have done much to eradicate organised fraud.
Local authorities need to know who is claiming from whom, where it is happening, how much is involved and for how long. We want local authorities to have the full right to demand that information from landlords about the properties for which any claim for housing benefit is made. If the Government do not give in this Bill local authorities all the powers that they say they need to check landlord fraud, we shall want to know why the Government, despite all their strong words, remain soft on it and go for the little people but let the bigger fraudsters escape.
If the Government want our full co-operation on the Bill—and given the time pressures faced by the Government, they may need it—they will have to move toward us on this matter. I do not see why that should present any difficulty between us as we share the same concerns. I hope that we shall hear friendly words from the Minister on this matter when he comes to wind up the debate.

465
One of the Government's responses in Clause 16 is to allow local authorities to recover money from a landlord overpaid for tenant A by deducting it from the housing benefit due to another tenant, tenant B, of that same landlord. The Minister explained his thinking, which is ingenious and we understand the reason for it. But despite government assurances that the rental liability for that tenant will be discharged, many of us fear that it may place that tenant, tenant B—the innocent vehicle for public reimbursement of another tenant—in a precarious position with his landlord, at risk of eviction and having a non-housing benefit tenant replacing him. Keeping administrative track of separate rental and housing benefit accounts for separate tenants will become difficult, particularly if tenant B has his own problems with the top slicing of JSA for his utilities debts or past housing benefit debt. The problem will be compounded if he shares a flat with others. It will be an administrative nightmare.
We understand that one does not want to see one part of a local authority's housing benefit section paying money to a landlord while another section of the same department seeks to recover money from that same landlord. Nonetheless, we shall want to see whether we can tackle the problem in a more effective way.
Nor are we convinced that the same rules of recovery should apply to socially registered landlords, such as housing associations, as apply to private landlords. At Committee in another place, the Minister said that up to 20 per cent. of registered social landlords were failing to refund overpayments, and so on. We shall ask the Minister to produce the evidence for that and again see whether we can produce a more effective way forward than has so far been suggested.
In principle we welcome data matching so that local authorities and DSS managed benefits share a common IT architecture along the lines of project accord. But we shall want to take great care that that it does not unreasonably invade the privacy of tenants and, of course, the national and international rules about data protection. It is important that claimants can ensure that information passed from one agency to another is correct. A common spine of IT is only valuable in so far as it is accurate; otherwise, errors become exponentially multiplied.
We shall want assurance that the Bill provides adequate safeguards for data protection. We believe that that may be best achieved, as the data protection registrar says, through a statutory code of practice. Let me quote the letter of the data protection registrar to Mr. Lilley on 10th January this year:
"When I commented on the text published for Second Reading, I expressed my concern at the very wide powers given in respect of data matching activities. In the light of this concern, I have come to the firm view not only that there should be a code of practice but that it should have statutory force. The existence of appropriate safeguards would go a long way to providing assurance to the public that such data-matching exercises will be properly regulated to minimise the possibility of any adverse consequences for innocent individuals".
466
A position calling for a stringent statutory code of practice is strongly supported by the Post Office. We shall expect the Government to accept such a code of practice and allow the registrar a supervisory role of audit over data-matching activities.
We recognise that the Government have to be concerned about the existence of fraud in any benefit, including disability benefits. But we shall seek safeguards from the Government concerning Clause 15 to ensure that the strain on disabled people and their vulnerability are recognised in the way that the Government seek to eradicate error or fraud in that range of benefits.
Similarly, we shall ask the Government to look closely at the issue of appointeeship, to prevent people with learning difficulties from being cheated by others. We shall ask the Government whether they are concerned about disability benefits, why they refuse to allow local authorities to extend their fraud-chasing remit to other local authority administered benefits, such as education awards and contractor fraud. Currently the London local authorities are promoting such a Bill. It would be helpful if the Government could indicate their thinking on this matter and, better still, allow the Bill to be a vehicle for checking fraud in associated fields also.
We all want to review the arrangements for subsidy for fraud work as well as the "finders keepers" rules. We shall also want to clarify the role of the new inspectorate. The assumption behind the Bill, confirmed by the Minister's introduction, is that the local authorities are being dilatory in exposing housing benefit fraud and need a diligent inspectorate to push them into action. That is nonsense and the Government know it. It is the Government who penalised local authorities until 1993 for uncovering fraud by taking away their subsidy. Even now, the Government penalise local authorities who prevent fraud from happening by punishing them for failing to detect what has not happened—a non sequitur if ever I heard one.
One other aspect of the subsidy rules concerns us. A subsidy from government will in future come from uncovering fraud but not from reducing error. If overpayment is due to local authority error, there is no subsidy. If overpayment is due to claimant error, there is 25 per cent. subsidy. But if it is due to claimant fraud, there is 95 per cent. subsidy. Therefore, local authorities have an indecent incentive to classify error as fraud in order to maximise subsidy. Innocent claimant error associated, for example, with an adult son coming home and the household becoming entangled in the extraordinarily complex non-dependant adult deductions of housing benefit can be classed as fraudulent in order to extract benefit.
We are not opposed to an inspectorate but we wish to emphasise that the demand to recover and stop housing benefit fraud has been led by local authorities. A year ago, across these Dispatch Boxes, the Minister was telling these Benches and myself that our assertions of housing benefit fraud, based on figures supplied by the Local Authority Associations, were wildly exaggerated. Now we notice that the Government accept our broad figures.

467
Since 1993–94, savings detected from fraud by local authorities have risen from £93 million to £220 million in two years and this should exceed £300 million in 1997–98. Of some 400 local authorities, 367 will exceed their fraud targets set down by government even though those fraud targets for 1996–97 are 50 per cent. higher than in the previous year. I only wish the DSS was half as efficient. In the field of fraud it is the Government and not local authorities who have dragged their feet.
Finally, we see this Bill not just as a vehicle for the more effective tackling of fraud, of paying money to those who are not entitled to it, we also see it as a vehicle for delivering benefit to those who are entitled to it but are not receiving it. That is particularly a problem for our poorest pensioners. Nearly 1 million poorest pensioners, over 40 per cent., who are entitled to income support do not claim it. They are losing, on average, £14 a week as well as entitlement to £8 a week cold weather payments. Similarly, Age Concern estimates that a third of a million pensioners are not claiming the housing benefit to which they are entitled, worth nearly £20 per week, and that 1.6 million pensioners are not claiming the council tax relief to which they are entitled, worth over £5 per week.
It is especially nauseating that in a month when the Government introduced the fraud hotline, they closed the benefit helpline. It seems that the only way the Government have of financing their tax cuts is not through economic growth but by discouraging our poorest pensioners from claiming the benefit to which the Government say in law they are entitled.
We may not have time on this Bill to use it as a vehicle for benefit entitlement but we want it clearly signalled that the Government, if they had so chosen, could have done so and we are setting down a marker that we shall do so.
To conclude, we are at one with the Government in wishing to check fraud wherever it occurs. In so far as this Bill will effectively aid local authorities in doing this, we welcome it. But if the Government want our wholehearted co-operation and speed on this Bill—and I rather suspect they do—we must make it clear that that is conditional on the Government meeting us on two points which they ought, in all conscience, to be able to do.
First, the Government must join with us in strengthening the powers of local authorities to deal with fraudulent landlords, perhaps by a specific offence of landlord fraud. The Government do not go far enough in this Bill to stop landlord fraud. Secondly, the Government must bring before us, in principle, a code of practice or at least insert the regulatory powers for a code of practice for data protection to ensure the proper handling of data; that it is accurately collected; that it is used for its proper purpose; that it does not give rise to abuse of confidentiality or the hounding of vulnerable people. A proper balance must be kept between collecting information to check fraud and respecting the rights of individuals to privacy, especially the rights of the poorer and less powerful people to privacy.
468
If the Government can meet us on these two points, and I really cannot see why they should not, then we will co-operate in all ways possible to see this Bill on the statute book.
3.44 p.m.
Earl Russell: My Lords, before getting down to business, I would like to offer the Minister an apology for asking him an inaudible question a few minutes ago. I did not react fast enough to a certain amount of noise in the House and I am sorry that that was so.
In that same spirit, in spite of the slightly end-of-term atmosphere we heard a few minutes ago at Question Time, I shall attempt, unless provoked beyond endurance—and I shall make my endurance as long as possible—not to use the Bill for scoring party points. I say that not out of moral virtue—both the Minister and the noble Baroness know that I am not above scoring a party point when I think it appropriate—but because I think it is in our mutual self-interest. On the Bill all three of us will be vulnerable because we face a clash between conflicting priorities, all of them legitimate.
First, we all agree that fraud is a crime. It is properly prosecuted under the Theft Acts. Money is taken which should have belonged to somebody else and is nefariously misappropriated. That, I think, is common ground between all three of us. But equally all three of us are and must be concerned to show that we are trying to act in the interests of claimants, which may, on occasion, unless we have very careful drafting, conflict. Also, all three of us must be concerned to show that we are acting in the interests of justice. As soon as we start to accuse each other of being too soft on fraud we are liable to get back across the Chamber the accusation of not being sufficiently concerned with justice, and so forth. So if we use this Bill for party purposes, we set up a merry-go-round from which I believe none of us will gain.
The Minister will remember that I gave the Bill a guarded welcome in the debate on the humble Address. I repeat that but, having done a good deal more work on the Bill since, I find that the guardedness is slightly clearer than the welcome. Obviously we need a Bill on this subject more or less of this type. However, looking through the actual drafting of the Bill I cannot help being struck by the sense that this is the sort of Bill that one gets at the end of a parliament. Also, I cannot help being struck by the sense that when, among three conflicting and more or less equal priorities, one singles out one of the three for legislative attention, one makes the task of balance a great deal more difficult. I hope that in Committee we shall be able to restore that balance.
First, I shall deal with the legal issues which have arisen in relation to Clauses 1 to 3 since the Bill was tabled. We have first the problem of the European Convention on automatic data processing which lays down that personal data held for any purpose shall not be used or disclosed in a manner which is incompatible with that purpose.

469
I do not think we take enough account of the resistance of the public to supplying information which is wanted for official purposes. To take an example, which obviously from its nature I would not have taken for partisan purposes, I heard very recently from somebody I have known for a great many years who was objecting passionately to supplying to her local authority the information required under the Energy Conservation Bill recently sponsored by my honourable friend, Mrs. Maddock. She was quite convinced that there was some nefarious purpose behind the demand for this information and nothing I could do could convince her otherwise.
Therefore, in requiring official information, we have to concentrate on the question of preserving public trust. In computer matters that has already become more difficult because of the spread of hacking. In 1994 there were 665 Whitehall cases of hacking. The majority of those were in order to disclose information to an outsider. We should all remember that one of the major causes of this sort of problem of unauthorised disclosure arises in domestic violence cases where the violent former husband tries to trace a wife who has taken flight. I would like to think that before the Bill is completed, the Minister will have taken advice from Women's Aid and other concerned organisations on the risks to which the disclosure we are interested in may perhaps give rise.
Next we come to the question of the European Convention on Human Rights. Clause 8, the privacy clause, lays down the requirement that disclosure should be in accordance with law, which means that the law should be formulated with sufficient provision to enable a citizen to regulate his conduct. That is not a piece of nasty foreign law. It is a good, basic English legal principle. I am not going into 17th century jurisprudence. I shall quote only the memorable phrase used by George Digby in another place in 1641:
"Let the mark be set on the door where the plague is,
And let him that will enter in die".
I am not sure the Bill passes that test.
It must also be for a legitimate aim. Prevention of crime clearly is a legitimate aim within the meaning of the European Convention. There can be no dispute about that. But checking the accuracy of data, I suspect, is not a legitimate aim, although I speak as an amateur and in a case which has not yet come to court and which will take a considerable while to come to court. It would mean that it would be possible to get hold of the whole of a political opponent's tax records just in case he might be claiming income support under another name. It is the kind of thing which in a future atmosphere—perhaps 10 or 15 years down the road—could get quite seriously out of hand. We need to be careful how we go about it.
We need to be clear, in defining the circumstances under which disclosure is to be allowed, first, that overpayment is not necessarily the same as fraud. There has to be a mens rea established before overpayment can constitute fraud. We need a tighter definition of the circumstances in which disclosure is to be allowed.
470
We need some requirement of suspicion. Your Lordships may remember the outcry which has been caused at various times in the past about the notion of the police carrying out random breath tests. The case for restriction here is a good deal stronger than it was for random breath tests. There must also be a provision for review of the exercise of these powers; otherwise, as Belloc has it,
"It would not do For people such as me and you Who pretty nearly all day long Are doing something rather wrong".
Those clauses need a good deal of thought before we leave them.
On the later clauses there is a good deal of work to do, but there are not such big issues of principle. The basic aims of Clauses 5 and 6—the sprucing up of local authority administration of housing benefit—need to be supported. However, I am a little worried by the provision in Clause 10 for subsidy to a local authority for success in detecting fraud. The decision whether something is or is not fraud is in form at least resembling a judicial decision. Financial incentives to take a potentially judicial decision in one way rather than another cause me a certain number of misgivings.
In Clauses 9 and 10 the Minister touched on provisions for subjecting the local authority to a financial penalty or contracting out. I entirely understand why the Government are thinking in those terms. After all, I live in the London Borough of Brent, and I know something about what inefficient local authorities have in the past been like. However, the financial penalty is a little like the charge from the bank for going into overdraft. I recall a social security case of someone who went into overdraft by 10p. The bank charged her £10 for it. She challenged that. The bank waived the £10 penalty but charged her £10 for the letter saying that it was doing so. This does not always help. I am unhappy with those provisions but I do not at present see an alternative. I do not intend to make any large fuss unless or until I see an alternative.
Clauses 13 and 14 are provisions on changes of circumstances. Those also cause me some misgivings. I want to ask the Minister about the use of the word "dishonestly" at the beginning of Clause 13. How much restrictive force does that have? Is that a requirement for mens rea, or is "dishonestly" being used loosely simply as a synonym for inaccurately? The answer to that question will make quite a lot of difference to me.
I was also a little taken aback by the requirement to report all changes of circumstances required by any regulations. I shall not force the Minister to plead his privilege against self-incrimination, but if I were to ask him to name the content of all social security regulations requiring disclosure of change of circumstances, it might give him a little hard work. If the Minister felt anxiety about that, what would the average benefit claimant feel? Most people are not at all sure which changes of circumstance need reporting and which do not. Above all, the change of circumstance requirement does not really keep up with the flexible labour market, with fluctuating wages changing every week. For income support there is a simple form for reporting a change of

471
circumstance. Would the Minister consider the possibility of introducing a similar form for housing benefit, and would it not save us some trouble if he did?
In Clause 15 overpayment is automatically, as far as I can see, taken as fraud. We need some proof of mens rea before that is understood. There are plenty of cases of overpayments arising because people have been given mistaken descriptions of exactly what was required of them. I have some such cases before me but I shall not detain the House with them now because time is running short. However, we may hear more of those later.
In Clauses 17 and 18 the requirement for medical examinations for people with various disability benefits has caused concern to the Royal National Institute for the Blind and is likely to do so to other disability organisations. Now we are calling in the informer through the fraud hotline, everyone is open to notification from any enemy, former lover or spurned lover alleging various forms of fraud. Some disabilities, notably acute heart trouble and epilepsy, are not at all visible to anyone who sees you about in the street, so they might think you are perfectly fit and notify you as a fraudster. I entirely agree with the Minister that fraud happens in this as in all other areas and there must be measures to check it. What I do not want is any danger of this turning into a witch hunt. I should like to know the circumstances in which regulations are likely to prescribe extra medical examinations. I should like to know how often these new medical examinations may be required. We shall have to look at that more closely in Committee.
Clause 19 concerns failure to supply information for checking a national insurance number. Again, I sympathise strongly with what the Government are after here. I wonder how it will work in practice if you apply it, say, to the street homeless, who are not very well equipped with places for keeping records; if you apply it to illiterates, with whose rights I have always had a concern; if you apply it to people with the various forms of learning disability, which are not unknown among people on benefit; or if you require alcoholics to supply this kind of information. They may not even understand your question. To take that as fraud is straining the meaning of language. Before we leave the Bill I should like to be sure that we are not going to come up with a lot of merely misguided and incompetent people when we are looking for criminals.
Clauses 20 and 21 refer to the provisions for redirecting post. I am concerned about how the prohibition on redirecting giros might affect people who have suffered from eviction, those who have suffered from matrimonial breakdown or who have fled from domestic violence. This may be a procedure which is a little too inflexible for the need that it has to meet. The Post Office is concerned about the provision in Clause 21 for gaining access to its database in order to redirect mail. I entirely understand why. Not all of those people by any means—they allege less than 1 per cent.—are involved in any sort of benefit business. Again, that is just the kind of thing which could be used regularly to trace people fleeing from domestic violence.
472
When we look at the Bill—which I hope that we shall do with great care—we must not look at it with tunnel vision, but with sympathy and from a good many other angles as well as looking at its effect on fraud. Then perhaps we might get it right.
4 p.m.
Viscount Chelmsford: My Lords, I am no expert on social security neither do I have a great deal of knowledge about fraud, but I do have practical private sector experience of administration and I shall approach the Bill from that angle.
I choose to split fraud between skilled fraud and unskilled fraud. Skilled fraud is always with us since whatever one man can do another will find a way to undo. If we leave the door open those with little principle will walk in, but when we lock it such people have neither the skill nor the determination to get inside. So there is a lot that we can do to learn from our mistakes, to tighten our vigilance and routines and to manage better.
Here is a true and recent story taken from a different discipline, but the points are nonetheless instructive. A container load of cigarettes was sent from the USA to Angola. The first leg was by ship to a Scandinavian port; the second by French truck to a Spanish car park and the third was supposed to be by local movement to the port of Vigo except, of course, the cigarettes were never seen again once they had left the car park.
No one at the Scandinavian port asked why a cargo for Angola ever came there in the first place. No one checked to find out whether that had happened before—it had—and the details of the previous theft were well known to the authorities. An investigator had no difficulty in following the journey south. The crooks were so relaxed that they had even used the same name each time when clearing Dutch customs. The investigator is on record as saying that that could not have happened a second time had there been a computerised record with the opportunity to match data.
Of course, they may have been skilled criminals, capable of moving on to different ways of achieving dishonest income, but there was nothing very skilled about what they actually did. The world is full of unskilled people who can and do take advantage of incompetence—what the Army calls "making". Computers are a prime weapon in the battle to achieve competent management because they do not work if you offer them a fudge. Computers force us to be tidier: to be more disciplined. Block the avenues of incompetence and a lot of people who only drift into crime will no longer offend.
Computers also force us to be exact. They give us the opportunity to collect and use information in new ways but, being exact, they require common definitions. There is an amusing story to illustrate this. The Ministry of Defence must have some difficulty in using headcount statistics if the following allegation, which was told to us in PITCOM recently is true. It is said that in the Army personnel are either "men" or "apprentices". In the Navy, they are either "men" or "officers" whilst in the Air Force all personnel are "men", including women.

473
I return to the subject of fraud. How does one stop someone on social security from forging a second card and applying for two benefits at two different post offices? One answer is to issue claimants with plastic cards containing unique reference numbers; build a common network across all post offices; only pay weekly benefits to authorised benefit holders and know instantaneously each time a claimant asks for a benefit which has already been paid elsewhere.
Such a system is now being implemented. It restores competence. It will eliminate another element of fraud. It will take some people out of the fraud game, and not necessarily through arrest or conviction but simply through lack of opportunity.
The consultation period on the Green Paper government.direct has just ended. The prospect is that information given once to one government department will be used by all departments. The good news is that, instead of being sent a form to your correct address and finding that the first question says, "Please fill in your name and address", the form will arrive with this already shown. In Denmark, the tax form already reaches the citizen partly filled in from existing records.
The bad news is that information held by the Inland Revenue will be available to the DSS—or is that bad news? That depends on one's outlook and, it seems to me, on whether you have anything to hide. We spend a lot of time these days extolling government and corporate transparency. It puzzles me why the thought of individual transparency gets such a bad press.
Of course, the information must be accurate, and this brings us to the other side of the equation. We need to know that information about us is accurate and is used only for such purposes as have been advised to us before we donated the information. We have the Data Protection Act to give this the force of law. There is an irony in this, in so far as concerns accuracy, because there is ample proof from the private sector that single entry of information is not only significantly less error-prone than multiple entry, but also that a wrong single entry gets discovered far faster than the one error within the multiple entry system.
The Data Protection Registrar tells us that the UK Act avoids the use of the word "privacy" but that Article 1 of the European directive, which the United Kingdom is required to implement, states that privacy is a fundamental human right. She suggests that data holders should take great care to specify the purposes for which such data may be used before they collect it, thus avoiding compliance costs later. It is in the data holder's interest to work out in advance how to avoid alienating citizens afterwards.
The Electronic Commerce Association suggests that while information supplied to government should be available to all who require it within government, the citizen must be confident that it will never be disclosed outside government, except in unidentifiable statistics, and also that the information will never be subject to the jurisdiction of any other government.
474
Government departments may well be advised in future to have a statement on all their forms stating that,
"in the interests of more efficient Government, any data supplied thereon may be passed to any or all other Government departments for use in respect of any of the purposes published and registered under the Act".
I think that that would satisfy the current Act.
Everyone must decide for themselves whether this would constitute "Big Brother" or simply represent common sense. I suspect it depends on culture and outlook. But I forecast that what is now being called "data matching" will happen and that those nations which implement it last, or indeed implement it unsuccessfully, will lose competitive advantage in the global struggle to increase living standards.
So, if it is going to happen, then the sooner the Government move ahead in general with the implementation of their Green Paper government.direct the better. As regards this Bill, we would do better to look for checks and balances to protect the data subject than to reject the data-matching concept. There is already an avenue for checking whether a data holder complies with the Act. The names of all those registered as data keepers are now live on the Internet. The list gives contact addresses which citizens can use to find out what data is held about them. Something must be going right since the registrar says that she now gets better quality complaints.
So far as concerns this Bill, the registrar wants, as we have heard, to see a statutory requirement for a data holder's code of conduct, which complies with the existing eight data protection principles. Having spent much of my own life as one who was governed through a code of conduct, I commend such an approach. Lloyd's of London has not had much praise in this House recently, so I am delighted to tell noble Lords about something which I believe it got right. If a broker is found to have transgressed his code of conduct, it is not automatically considered to be a disciplinary offence, rather it is a matter that can be taken into account in any disciplinary hearing. This gives a powerful flexibility to the operation of a quite tough code.
In passing this Bill, Parliament will have further enhanced the importance of the registrar's position as the keeper of the checks and balances between government (the data holder) and the citizen (the data subject). I conclude by quoting from a EURIM brief, which was also its response to the Home Office concerning the need to implement the European directive. It states:
"The Registrar's function needs review. It should be more of a Parliamentary Commissioner than a business Regulator, particularly in respect of complaints regarding Government Departments. The advisory role of the Registrar should be enhanced: fees should be de linked from registration, becoming variable and work related. Primary legislation is highly desirable. There are potential dangers of confusion if the UK Act and the EU Directive are left separate and structural change is anyway desirable".
We need this Bill. We also need an effective Data Protection Registrar for balance. I suggest that these two strands cannot be separated.
4.9 p.m.
Lord Stallard: My Lords, I listened with great respect to the noble Viscount, Lord Chelmsford, especially when he said that he did not know much about local authorities or social security. I hesitate to say this, but I am bound to do so: many of my former constituents or those whom I helped when I was a member of a local council would not have understood what the noble Viscount meant when he spoke about the Internet and the rest of it. Those things are light years away to many pensioners.
I turn now to the Bill. Any Bill purporting to deal with benefit fraud could be expected to attract universal support—and rightly so. However, the very first sentence of the Explanatory and Financial Memorandum to this Bill states:
"The Bill amends the law about the administration of social security to improve the prevention and detection of benefit fraud and the efficiency with which benefits (in particular housing benefit and council tax benefit) are administered".
In that sentence, the Government are admitting straight away that they are concerned with only two benefits. Although the Minister when introducing the Bill said that it will give local authorities new powers to deal more effectively with benefit fraud, in my view the Bill does not go anywhere near far enough. It does little in practical terms to tackle other types of fraud. From reading recent reports, I understand that there is a great deal of fraud in the education world, relating to grants and awards. There is certainly a great deal of fraud with contractors, particularly in local authorities. Such fraud is not mentioned in the Bill.
What puzzles me is that there is another Bill—the London Local Authorities Bill which I know has been in preparation for almost two years now. I also know that it has been awaiting its Second Reading for many months. I noticed this morning that, according to the Notices and Orders of the Day in the Minute, that Bill is due to have its Second Reading on Wednesday. Had I known earlier that that Bill was to have its Second Reading on Wednesday, I would not have put down my name to speak on this Bill. I would far rather have waited for the more comprehensive Bill that has been produced by London's local authorities because that Bill deals with many more types of fraud at greater length and far more thoroughly than does this Bill.
I shall deal with only one or two examples today. First, the London Bill will deal with fraud relating to education grants and awards. It will also deal with landlord fraud far more deeply, in much more detail and with much more practical understanding of the difficulties than does this Bill, which seems to concentrate on fraud involving individual applicants. Although I am aware of the changes that were made to these provisions in another place, in my view the Bill still does not deal adequately with fraud such as landlord fraud which, according to many reports, exists on a large scale. The London Bill is much more specific and requires landlords who ask for the benefit to be paid directly to them to supply details of all the other properties that they control in respect of which housing benefit is claimed. Local authorities will understand that. Local authorities are also to keep a register of
476
landlords who receive direct payments of housing benefit and are to pass that information to other local authorities. That is another good idea. Local authorities will also have specific powers to refuse to make direct payments of benefit to landlords if they believe that fraud is involved. In such cases, the benefit would be paid directly to the claimant.
I make those points to show that the London Bill was conceived and its provisions drafted long before this social security Bill was ever thought of. In fact, I believe that this Bill was produced in response to the local authorities Bill and that it replicates some of its proposals. So, far from the Government producing a fraud Bill in response to a lack of action by local authorities, a point on which the Minister elaborated when opening the debate—the reality is that the Government's fraud Bill has been produced in response to the initiative taken by the London boroughs in bringing forward private legislation.
I may be totally out of touch, but I do not believe that that Second Reading can now take place on Wednesday. It does not seem possible to me that we can discuss this Bill on Monday and then discuss a similar but more detailed Bill on Wednesday. In my mind that raises the question of why we are doing this. As far as I am concerned, it is being done for only one reason: the Government are in a hurry to produce something which they and their managers deem to be electorally desirable. If I were a cynic I would believe it to be true that the Government hope to rush the Bill through within the next few days or so, so that they can begin to boast about how tough they are on tenants—and on some landlords. If we were to discuss the other Bill on Wednesday, we could have a much more leisurely discussion on that Second Reading and far more detailed and specific discussions in Committee. However, I do not see how we can do that now—and certainly not in this Session. Are we saying that we shall pass this Bill now, have a Second Reading of another Bill dealing with similar provisions on Wednesday, and God knows when that second Bill can be given its Committee stage? I am sure that I am more or less right and that the Government are in a hurry because they want to be able to show in their manifesto how tough they are on fraud and what they are doing about it. However, at the same time they are saying, "We shall not boast about what we are doing to landlords because that might not be so electorally desirable". I ask the Minister whether the Second Reading of that London Local Authorities Bill is still to take place on Wednesday.
In turning to my next points I must declare my interest. As chairman of the All-Party Lords Group on Ageing Issues, I have attended a number of meetings with colleagues, and joint meetings with the Commons All-Party Group. We have met representatives of pensioners' organisations and representatives from Age Concern. Their general criticisms relate to the fact that this Bill concentrates only on taking benefit away from those who should not be receiving it. It does not take the opportunity to encourage people to take up the benefit to which they are rightfully entitled. Nothing in the Bill deals with that.

477
Some figures have already been quoted, but perhaps I may repeat that as many as 1.1 million pensioners are not claiming income support and that the average amount of unclaimed income support is £14.10 per week. As much as £800 million-worth of income support benefit is not being claimed by those pensioners who are eligible. There is a similar story with housing benefit because 320,000 pensioners are not claiming the benefit to which they are entitled. That means that 14 per cent. of eligible pensioners do not claim. The average unclaimed benefit is worth £19.70 per week. As much as £330 million worth of housing benefit is not being claimed by those who are eligible. As many as 1.6 million pensioners are not claiming the council tax benefit to which they are entitled—or 37 per cent. of eligible pensioners. The average amount of council tax benefit left unclaimed by eligible pensioners is £5.60 per week. As much as £480 million in council tax benefit is not being claimed by elderly pensioners.
It may be argued that the issue of take-up should have been included in this fraud Bill. It could be argued that where a council or government department fails to take adequate steps to identify people who are entitled to receive benefit but who are not receiving it, those people are being defrauded of that benefit. It certainly appears that the present publicity and advertising are insufficient. The Government boast that they are spending millions of pounds on advertising campaigns to publicise benefits. But would not that money be better spent in other ways? We are contacted regularly by post to ensure that our names are on the electoral register and we are contacted every so often in relation to a census. I imagine that the names and addresses of pensioners are on local and national computers and are known to voluntary organisations. With some assistance, I do not see why it is not possible to identify those people to ensure that they receive that to which they are entitled. There are a whole number of reasons, which I do not have time to go into, why people are in that situation.
We know that people are not receiving those benefits. We could find out who they are if we were prepared to divert some of the millions which are spent in the wrong direction. Could it not be said that if those sums are not paid, the people in question are being defrauded? I have mentioned sums of £800 million, £330 million and £480 million. That is £1,610 million. I wager that if pensioners were withholding any payment due or claiming that to which they are not entitled, they would soon be identified and punished. It would not take long to identify a pensioner who was fiddling his pension or cheating on his income support. Yet it is not possible to identify him when he is not receiving that to which he is entitled. I am saying that we should direct more money and time in that direction.
Age Concern has raised another matter about the structure and system of benefit appointeeships and agencies. The fraud Bill makes no reference to reviewing that system. There is no monitoring of those people who are appointed agents or appointees. Those of us who have served in local government and know the problems at street level know that there is a whole
478
area of fraud in that sphere. We know it goes on. We have all had experience of someone who has been appointed to assist a person who is perhaps not totally mentally alert and has been found to be defrauding the person entitled to the benefit. That is not mentioned in the Bill but Age Concern is concerned about it, as I am. There should be a whole review of that system; there should be a system of monitoring those who are appointed and the means to deal with anything that happens in that process.
There is no formal review mechanism. The Benefits Agency provides limited public information on the system and conducts limited, if any, monitoring of appointees and agencies. That also impinges on the implementation of the benefit payment card. Therefore, we must look at that when we are looking at all the other aspects and problems.
I received another piece of information from the Royal National Institute for the Blind which is concerned mainly about Clauses 17 and 18 which relate to disability benefits. The society asks why a Bill which is aimed at tackling fraud includes two clauses which deal with disability benefits. When that point was raised in Committee in another place, the Secretary of State said that fraud was not an issue in that respect. He said that the Bill is a convenient vehicle to deal with disability matters; that is despite the fact that their inclusion in a Bill dealing with fraud sends out all the wrong messages. I can understand that; noble Lords can understand that. If it is not an issue, why are those matters included? It is said that those two clauses have no connection with fraud, but they are contained in a fraud Bill. Therefore, we are sending out a message that there may well be fraud among members of the blind community. I think that that is a point which requires more of an answer than has been received so far.
When the Minister winds up, perhaps he will tell me how the Government justify placing clauses dealing with disability in a fraud Bill. The RNIB would like an assurance that the whole context of the report on DLA and incorrectness will be made available and that no decisions are taken on tackling incorrectness without full consultation with disability organisations. I should like the Minister to deny, on behalf of the Government, the rumours about changes in the interpretation of the "ability to walk" provisions. I ask the Minister to give an assurance that there will be no changes which may diminish the right of blind and partially sighted people to receive the lower rate of the mobility component of the DLA. I do not think that that is asking for too much on behalf of people who have been insulted by the inclusion of those two clauses in a fraud Bill. I hope that the noble Lord will be able to reply to those matters.
As I say, I should have liked to have spoken a lot longer and I would have done had the Second Reading of the other Bill been on Wednesday. I do not know whether it will be. I should like the Minister to tell us whether or not that is to take place on Wednesday.
4.26 p.m.
Lord Lester of Herne Hill: My Lords, I begin by apologising to the House for the fact that, unfortunately,

479
I cannot be here for the whole of the debate and in particular to hear the Minister's reply to it. I have written to him with my personal apology. When I put my name down to speak in the debate, far fewer noble Lords then had their name down to speak in the debate.
As almost all noble Lords have said, the Bill has entirely laudable aims—the aims explained so clearly by the Minister. The Bill has been widely welcomed. The question which I should like to raise—and it has already been raised by noble Lords—is whether the means chosen to achieve those laudable aims contain adequate safeguards to ensure respect for personal privacy. I hope and believe that the Minister shares that concern and that he would be open-minded about the strengthening of privacy safeguards in the course of the Bill's passage to strike and maintain what my noble friend Lord Russell described as a fair balance.
Until about five years ago, data-matching was virtually unpractised in this country. Data-matching means the computerised comparison of two or more sets of records with the main aim of searching for records relating to the same individual. There are several variations of the data-matching technique currently in operation; but they are limited in scope. However, this Bill will allow wholesale data-matching; that is, a sharing of information across government departments which at present would be unlawful.
The Bill will empower public authorities to use data-matching to reveal inconsistencies in an individual's record and not only to confirm an existing suspicion, as is already permitted under the existing social security legislation. Inconsistencies which government computers highlight, at least in theory, could be the basis for further investigation by a computer-generated decision whether with or without the exercise of further human judgment.
The Bill represents a significant extension of state power. For the first time, Clauses 1 and 2 would allow the Secretary of State to collect relevant information from the Inland Revenue, Customs and Excise, agencies dealing with passports, immigration, emigration and prisoners, and, in completely cavernously open-ended language,
"any other matter which is prescribed".
That last phrase would be in new Section 122(B)(1)(b) of the 1992 Act, inserted by Clause 2(1). I await with interest the report from the Delegated Powers Scrutiny Committee on that particular provision.
In all cases, the very wide power to which I referred is to apply not only to the
"prevention, detection, investigation or prosecution of offences",
but also for use in checking the accuracy of information and, where appropriate, amending or supplementing it. The Inland Revenue will have greater powers to supply information relating to contributions to the Secretary of State who, in turn, will be able to supply it to local authorities, which will be able to exchange the information with each other. Some of this may well be happening already. But, if so, as with police practice in relation to electronic surveillance, it is happening without proper lawful authority, without legal certainty
480
and without adequate safeguards against misuse. The Bill is most welcome in putting some of these matters right.
Data matching will of course occur without the knowledge of the access subject. Computer errors, like human errors, will inevitably occur, and outdated stale information soon becomes inaccurate information. A common source of fraud is to use the national insurance number of someone else; so there can be cases of mistaken identity because of the activities of a fraudster. Errors are also inevitable because of the large scale on which this information is collected and the different contexts in which the information was obtained in the first place. Added to that is error which may arise from the different quality of different databases.
The Data Protection Registrar, to whom reference has already been made, is, if I may say so, a most impressive, independent expert authority to whom we would wish to pay tribute. In her annual report some years ago, the registrar drew attention to the fact that:
"Information can be used out of context to the detriment of individuals, unjust decisions can be taken on the basis of a computer generated profile which causes them to be placed into a group with certain characteristics, decisions can be made automatically, that is without the intervention of human judgment. The rights of individuals to check the accuracy of the information held is therefore severely restricted".
Yet, despite that clear and important warning, as the Bill stands, the claimant has no right to be informed of the investigation and no clear automatic right of access to the file in order to check the accuracy of the record. Worst of all, there is no complaints procedure for people who may be wrongly accused of dishonesty and wrongly deprived of essential state benefits, through no fault of their own, because of data errors. That is a serious penalty, especially for an impecunious sole parent or pensioner innocent of any wrongdoing. No doubt the Government's intention is that the highest standards of practice will be observed; but what matters is that there are real and effective safeguards and remedies in situations where those standards are not in fact observed.
The Secretary of State, Mr. Peter Lilley, assured the other place that the principles of the Data Protection Act will be adhered to. There is no duty imposed by the Bill to comply with those principles. But, presumably, public authorities will have to register as data users under the Act. The Data Protection Act 1984 was framed long before the recent technological developments in data matching, and the general principles under the Act are too general on their own to provide adequate safeguards to keep pace with the new technology.
Perhaps I may give your Lordships some examples. The first data protection principle in Schedule I to the Data Protection Act says:
"The information to be contained in personal data shall be obtained and personal data shall be processed fairly and lawfully".
That principle has been interpreted to mean that, as a general rule, the individual should be informed of the purpose for which the information is held, and if personal data given for one purpose is to be used for another purpose or passed to a third person. But such a general statement gives no clear guidance on what

481
information is necessary in this situation. Why, as I believe the noble Viscount, Lord Chelmsford, asked, should citizens not be informed that the personal data supplied by them to the Home Office, for example, may be made available to the DSS, or the converse?
According to Recommendation R(86)1 of the Council of Europe, made in the light of the European Convention on Data Protection 1981 and which gave rise to our 1984 Act,
"Personal data should not be communicated outside the framework of social security for other than social security purposes except with the informed consent of the person concerned or in accordance with other guarantees laid down by domestic law".
The Bill as it stands does not provide for what that recommendation describes as,
"guarantees laid down by domestic law".
I submit that it should contain such legally binding guarantees.
There may be breaches of the first data protection principle if automated systems are put in place which make decisions with little or no human intervention, but the Bill is not specific on that point. Article 15 of Directive 95/46/EC on the protection of individuals with the regard to the processing of personal data expressly forbids decisions based solely on automated data processing. The directive has to be given effect in UK law by 1998. I see no good reason why this Bill should not now secure compliance of our law with that directive.
After the data matching activity is complete, should the matched information from another source be destroyed or can it be retained on a central register for later use? This is another grey area.
The sixth data protection principle provides that personal data should not be kept longer than is necessary; but, again, it is unclear how the principle might apply where the main purpose is the detection of fraud. One government department might hold sensitive information about an individual's family history while another might hold a detailed financial history. How much information should be available for this cross-matching activity?
The fourth data protection principle provides that personal data held for one purpose or purposes should be adequate, relevant and not excessive. But in a widespread data-matching exercise how can that be effectively policed unless the registrar is required to be given detailed information about the exercise, and perhaps enforcement powers to overcome the existing statutory immunity for government departments?
The processing of personal data held by government as well as by private contractors will increase rather than decrease over time. Safeguards need to keep pace with rapid developments in computerised technology. Surely we must develop ways to benefit from and control this development. With the Government's declared commitment to use computerised information for the public good, as set out in the Green Paper, govemment.direct, surely, as other noble Lords have
482
stressed, they and Parliament need to put in place adequate safeguards as well as promoting public awareness of the new technology.
As the noble Baroness, Lady Hollis of Heigham, and the noble Viscount, Lord Chelmsford, observed, the Data Protection Registrar has expressed concern about the Bill and called for a code of practice with statutory force. Moreover, Justice has recommended—and I agree with this—that there should be a statutory requirement that benefits should not be withheld exclusively as a result of data matching procedure, and a requirement that those authorised to use data matching procedures must allow every individual who has been identified as being the subject of a discrepancy of information to make representations before action is taken against him or her as a result of the information discrepancy. There is also a need for a power of investigation and audit by the registrar and a monitoring power over data-matching exercises similar to that provided by the Australian guidelines.
Other countries—Canada, Germany, Australia—have preceded us with legislation specifically directed at data matching. After the Privacy Act 1988 the Australian Federal Parliament enacted the Data Matching Programme (Assistance and Tax) Act 1990, and comprehensive guidelines have been issued by the Australian Privacy Commissioner. These are not binding but constitute best practice. Among the guidelines are strict rules for notifying the public before a data matching project commences; requirements to give detailed information and explanations of the project and technical accounts to the Privacy Commissioner; clear strict rules for limiting the details that can be kept on a register and for destruction of the matched records at the end of the exercise; and provisions giving the Privacy Commissioner the power to regulate and monitor data matching activities. There is no good reason that I can see why British safeguards should be weaker than safeguards in Australia and in other democracies.
It is in the detail—that is why I make no apology for detaining the House as long as I have—that the safeguards of individual freedom will be found. A code of practice with statutory force, such as that proposed by the Data Protection Registrar, is essential. Such a code is also necessary to give effect to Article 8 of the European Convention on Human Rights. That is a matter so clearly explained in a powerful opinion given by my learned friends Richard Drabble QC and Dinah Rose that I can deal with it quite shortly.
Article 8 guarantees the individual's right to personal privacy except where necessary and in accordance with the principles of legal certainty and proportionality. As my noble friend Lord Russell has said, a law which permits data matching must be formulated with sufficient precision and it must not confer excessive powers. As it stands, the Bill is too vague and it sweeps too broadly with inadequate safeguards.
Happily, we have not reached the cold day, at the beginning of George Orwell's 1984, in which the clocks are striking 13. But we need to be vigilant as we scrutinise the Bill.
4.42 p.m.
The Earl of Northesk: My Lords, instinct tells me that I should advise your Lordships that I own a number of tenanted properties. I am unaware whether any of my tenants is in receipt of housing benefit but certainly I do not receive any direct payments. I make the point nonetheless for the information of your Lordships. That said, I do not intend to address those aspects of the Bill.
I hope I do not disappoint my noble friend the Minister when I say that, like almost every other noble Lord who has spoken, I wish to address the Bill's provisions with respect to data matching. I share the view of other noble Lords that none of us should doubt the desirability of the purpose underlying the Bill. What really matters is that social security fraud not only defrauds the Government; it also defrauds every citizen in the land. However much of a truism that may be, we are well advised to remember it and to recognise that it is incumbent upon any government to do what they can to root out that iniquity.
I now turn to the matter of data matching contained principally in Clauses 1 to 4 of the Bill. As I said, many noble Lords have already spoken on the issue. Indeed I am somewhat embarrassed to follow the noble Lord, Lord Lester of Herne Hill, who is far more knowledgeable and erudite on these matters than I. He is a hard act to follow but I shall do my best and I hope I shall not indulge in too much repetition. If I have understood the provisions of the Bill correctly, they seek to improve the detection of certain types of benefit fraud by permitting the comparison of data held by certain government departments with data held by the DSS.
I do not wish to test the patience of your Lordships with any analysis of the arcane technology of databases and data matching—the mechanics of neural networks, fuzzy logic and the like. I simply say I am broadly content that it is justifiable that the extremely powerful analytical tools unleashed by the information revolution should be employed in the detection of fraud. However, I do not believe we should be blind to the fact that their use for this purpose raises a number of ethical questions. As mentioned by many noble Lords, the management, processing and manipulation of personal computer data is regulated under the Data Protection Act of 1984. My noble friend Lord Elton, while steering that measure through the House, observed that the Act had been drafted,
"to protect private individuals from the threat of the use of erroneous information about them—or, indeed, the misuse of correct information about them—held on computers".[Official Report. 5/7/83; col. 509.]
More than that, the Act, following on from the recommendations of the Younger Committee's report on privacy in 1972—as we have been told by the noble Lord, Lord Lester—enshrines eight data protection principles in statute. I do not doubt that the provisions in the Bill before us today are broadly consistent with those principles. I also have it in mind that my noble friend the Minister implied confirmation of that in his introduction. However, a seed of slight suspicion is
484
sown in my mind on the basis that, as I understand it, the Data Protection Act may also seek to,
"prevent 'wholesale' matching between departments or agencies which have collected data for different purposes, unless there is specific enabling legislation".
Of course the clauses in the Bill that deal with the issue of data matching are that specific enabling legislation.
In this context the POST note entitled Fraud and Computer Data Matching states:
"Public sector data matching exercises so far have … had to rely either on serendipitous provisions (e.g. the Audit Commission's power to require information from Local Authorities for the purpose of efficiency studies), or occurred entirely within a single department".
Accordingly, the question I ask myself is whether this situation pertains because of an aberration—a failure perhaps of the legislation to keep pace with the technological development—or because it has been specifically framed in order to afford appropriate protection to our citizenry.
At one level at least the Government have acknowledged some sensitivity with respect to the issue. The recently released government.direct Green Paper rejects the concept of forming a single, centralised government database. That is all to the good. However, one does not need to be overly computer literate to be aware of the vast technological strides made in recent times with respect to the interconnectivity of database systems. As the POST note observes,
"interconnecting government computer networks risks allowing access to the totality of information, unless suitable administrative and technical security is in place".
In the circumstances I can do no other than inquire of my noble friend the Minister what suitable administrative and technical security the clauses in the Bill afford against the possibility of that sort of abuse? My own, perhaps simplistic, interpretation is that enactment of these clauses could—I stress the word "could"—as the POST note says,
"lead to widespread data sharing in Government, without the consent of data subjects, and thus be in tension with the philosophy of current data protection legislation".
In this context I should admit to being tempted to recognise a certain symmetry between this issue and that of the Government's provisions in the Police Bill with respect to telephone bugging. At its worst, indiscriminate and uncontrolled use of personal computer records could be represented as a form of eavesdropping.
As the noble Lord, Lord Lester, observed, we should also bear in mind that it is mow some 14 years since the Data Protection Act passed into statute. That is a considerable flow of water under the bridge with respect to information technology. By way of illustration—again as the noble Lord, Lord Lester, observed—the Act of 1984 did not address the specific issue of data matching, purely and simply because it is a development that post-dates its enactment, although I recognise that the registrar is empowered to interpret the principles in order to regulate this area.
I acknowledge that it is often too easy to see ogres where none exists. As the map of information technology is drawn, we can, like medieval

485
cartographers, define areas with the legend "Here be dragons" simply because they have yet to be properly explored. However, at the other end of the scale, we can, like Patrick MacGoohan, in the much admired TV series "The Prisoner", protest as vehemently as possible, "I am not a number". I make no judgment as to which is the more appropriate analogy for the Bill's data-matching provisions. I simply say that they represent a sub-plot which we would be well advised to examine in greater detail. We should be careful not to be seduced by the worthiness and great value of the Bill's headline aim of tackling benefit fraud and fail to address the wider context of data protection and privacy.
I can put it no better than the concluding paragraph of the POST note:
"Privacy is an abstract concept which is open to different interpretations by individuals and organisations, and Parliament may well need to address questions of where to strike the balance between protecting reasonable privacy for the individual and society's need to protect itself from crime such as fraud and to operate efficiently".
To my mind, Clauses 1 to 4 of the Bill pose that question to us directly and, as suggested by the noble Earl, Lord Russell, it is one of the angles of approach for our scrutiny of the Bill in its later stages.
4.51 p.m.
Lord Whitty: My Lords, I begin by assuring the Minister that I and noble Lords on this side of the House fully share the view that social security fraud is indeed a real problem and that we need some serious measures to deal with it. We do so partly because of our well known prudent concern for public finances but, more particularly, because the real victims of social security fraud are not the Treasury but the millions of legitimate claimants—their position and standing is besmirched every time we have a Daily Mail treatment of social security fraud—and the millions who are entitled to claim but refrain from doing so. I refer to the million or so pensioners who fail to gain their entitlement under income support.
I should have thought that the relatively limited application of the new technology of data-matching could identify those who are entitled to claim but do not do so as well as those who make false claims. However, I understand that as long as there is substantial fraud creaming off the top of the social security system the motivation for departments of state to identify those who do not claim is relatively limited.
I welcome therefore the objectives of the Bill. However, like the noble Lords, Lord Stallard and Lord Lester, and the noble Earl, Lord Russell, I have some problem about the way in which the measures in the Bill may operate in relation to individuals. I refer, for example, to the disability working allowance. There are some administrative problems. The Bill seems to confuse administrative problems with problems of fraud. I refer, for example, to the presumption that overpayment is always due to fraud and not to misunderstanding; and to the apparent requirement that the burden of responsibility is on the claimant for the accurate reporting of change of circumstances. Disabled
486
people may not be in receipt of the most accurate information as to their responsibilities. There is the suspicion that certain parts of the Bill would give effect to fishing expeditions for false claims which in some cases would be unjustified and not subject to adequate safeguards. I refer to the cavalier way in which data matching is treated. I support the bulk of what the noble Lord, Lord Lester, said in relation to safeguards in that respect. Those points will be raised in Committee by myself and other noble Lords.
However, my main intervention, as with my noble friend Lady Hollis, concerns the imbalance in tackling the causes of fraud. There are essentially three elements in relation to housing benefit: the claimants, the local authorities and the landlords. It is fairly evident from evidence received that the biggest problem lies with a small, relatively limited, number of landlords. I note that there are 21 operative clauses in the Bill: nine deal with local authorities and attempts to improve detection and enforcement in those areas; 10 deal with individual claimants; and only two relate to landlords. I welcome those two clauses. I welcome the improvements since the original Bill was presented in another place. Nevertheless, the provisions need to be strengthened.
We all know that there are individuals who milk the system, some by a few bob and others by hundreds of thousands of pounds. But we also know, as the Minister acknowledges, that there are organised gangs. Some individual fraud in the housing benefit area dilutes into relatively small amounts compared with a massive landlord fraud. That landlord fraud is not only on the social security system and on the tenants, it is also on the local authorities and the Inland Revenue. It is, as we say in London, a scam of massive proportions.
I speak of London because I know London well. I know that there are people in London who know of these scams. Many are afraid to talk about them. They are certainly afraid to identify those who perpetrate them. That makes it difficult for the authorities to detect the scam, and even more difficult for them to prove it. But the scam is there and, in order to improve detection and enforcement, we need not only the measures against claimants in support of local authorities but also resources for detection, and the enforcement of the law.
We all know why it is such an attractive scam for a few landlords. Housing benefit is big money involving prodigal amounts of money since 1985. The Select Committee of another place found that £1 in five is fraudulently claimed. That is £1 in five of £5 billion. Crooked landlords and crooked agents obviously wish to get their hands on that money. Although there does not seem to be a national figure, the anecdotal evidence from local authorities is that an increasing proportion of housing benefit is paid directly to landlords. It is paid subject to few checks except in the first instance, and often those are inadequate. Until May last year it seemed that the Government were prepared to ignore that aspect of fraud. Until local authorities and the Select Committee of another place identified the huge sums involved little was done.
The original Bill has been improved to deal with some of those issues. But there are aspects which I tend to query. More direct measures are needed. As the noble

487
Lord, Lord Stallard, said, London boroughs have come up with a Bill which was to have been discussed in this House. It calls for landlord fraud to be a specific offence. Local authorities have done well, as has been pointed out, without an increase in local authority resources, and some disincentives in terms of central government support for their activities. But long before the Bill that we are discussing was a twinkle in the eye of the Secretary of State, London boroughs had produced a firm and effective Bill which this House should consider. Some of the provisions may have been taken up in the Bill that we are debating. But the central problem of landlord fraud has not been dealt with effectively in the redrafted Bill. I shall not repeat what my noble friend Lord Stallard said about the contents of that other Bill. I merely commend it to noble Lords and to the Minister.
I used the term "scam" earlier. That may be too nice a word with which to refer to the issue. In effect, it is often a protection racket on some of the more vulnerable people in our society. It is a protection racket at the expense of local authorities, the taxpayer and legitimate claimants. A number of landlords make a lot of money by deception, extortion and intimidation. That alienates hundreds of thousands of decent tenants and claimants. Let us not be too coy about it: it accentuates some of the problems of race relations in our inner cities when it operates, as it often does, within particular ethnic communities. That is not the fault of the individuals concerned or of their families or communities. It is the unacceptable face of the new developments over the past 10 years of landlordism in our inner cities. In some areas, far from urban renewal, we have new forms of exploitation and ghettoisation—exploitation of the tenant and the welfare state, and of the loopholes in the payments system.
I say to the Minister: by all means we must tackle individuals who deliberately defraud the system. By all means we must improve the powers and effectiveness of local authorities in the public prosecution of problems. But we must also tackle the problem where it lies, in housing benefit fraud—in the new Rachmanism, on the back of tenants and at the expense of us all.
5 p.m.
Baroness Anelay of St. Johns: My Lords, I welcome the Bill as part of the Government's long-term strategy to fight social security fraud. Like others who have spoken I, too, believe that social security fraud is not a victimless crime. It cheats us all. Too many people are deterred from claiming benefits to which they are entitled because they do not wish to be tainted by association with those who cheat the system. It is sometimes said that fraud campaigns deter the genuine claimant. But exactly the reverse can be true, provided those campaigns are properly directed and managed. If potential benefit claimants can be confident that cheats can be readily identified and prevented from making a claim, they can be more confident about making a claim themselves and retaining their good name.
This Bill gives the DSS the opportunity to build on its current use of information technology systems to detect and deter fraud. The security and control
488
programme launched over 30 projects to combat fraud. One of those, the housing benefit matching service, relies upon the development of information technology systems. Data is matched within and across local authorities and against DSS systems to detect fraud and inconsistencies. A central computer system has been piloted to cross-check multiple housing benefit claims. Initially this covers 24 London boroughs.
But the Bill harnesses the power of IT far more effectively. I welcome the proposals to al low the DSS to cross-check data, principally with that held by the Inland Revenue and Customs and Excise, but also with other databases holding information, such as those with information about passports or prisoners. That will make it easier for the DSS agencies to investigate benefit fraud whether it is carried out by individuals, organised gangs or landlords. Conventional methods of detection have not always been effective. The use of modern technology, albeit under carefully controlled conditions, will enable quick and effective checks without putting genuine claimants through any extra hoops in their claim for benefit. Some of those who commit large-scale fraud do so by making use of sophisticated IT systems to build up a web of multiple false claims. It is about time that we were able to use IT as effectively as possible to detect that kind of fraud.
Earlier, the noble Lord, Lord Lester of Herne Hill, reminded us that data-matching is rather new in the world of the DSS. I was involved in data-matching some 30 years ago when I worked in the Inland Revenue. Certainly in its infancy then, it meant that, once a year, when the tax return came in you simply held two pieces of paper side by side and, laboriously as a clerk, looked across to see whether somebody had zremembered to invent the same children again this year and, if they had, had remembered to make sure that the ages had gone up and also that they happened to have the same middle names. Thank goodness, that kind of data-matching is in the past. New data-matching is far simpler to operate and far more effective. However, like others who have spoken, I recognise that we must always use caution when expanding the ability of government departments to gain access to personal information.
The Bill also recognises the role of local authorities in fighting fraud. I hope that it will open up a new area of co-operation between the Department of Social Security and local authorities. However, the performance of local authorities is variable, despite remarks made earlier by one or two noble Lords. Twenty-five per cent. of all benefit fraud—£1 billion—is attributable to housing benefit or council tax fraud. I therefore welcome the proposal to establish a fraud inspectorate which will have powers to examine the performance of local authorities. Its role will be to help and improve the performance of the worst-performing councils and to advise on best practice. It will have a powerful role to play in the fight against fraud.
I note that Clause 3 enables the Secretary of State or the Northern Ireland department to pass on information obtained by cross-checking to local authorities to help them in their detection of housing benefit and council

489
tax fraud. I welcome, too, the measures in the Bill that improve the Government's ability to prosecute and penalise those who make fraudulent claims.
Reference has already been made to Clause 13, which creates the new offence of dishonestly making a representation or failing to report a change of circumstance in order to obtain benefit. The noble Earl, Lord Russell, made reference to his concerns on this point and wondered whether mens rea would come into effect. When I read the Bill I noted that Clause 13 makes reference to the fact that the matter of a person dishonestly making representation comes into effect only when it is done also,
"with a view to obtaining any benefit".
I ask my noble friend the Minister to confirm what I believe to be a fact; namely, where people have innocently not made a change of circumstance known to the DSS, they could not be caught by that particular part of the clause, and that it is reserved only for those who fail to notify a change of circumstance because they have it in mind that, by doing so, they will obtain benefit to which they would not otherwise be entitled.
The clause imposes a penalty with a maximum of seven years' imprisonment in Crown Court cases or six months, as would be normal, in a magistrates' court. It therefore gives the courts the ammunition to pass the proper sentence in the appropriate case.
A typical long-term fraud involves someone making a false statement in order to claim benefit and continuing then to receive payments over a very long period. At the moment, those frauds are prosecuted on the basis of a declaration made at the time of payment. But a long-running fraud would involve hundreds of fraudulently obtained payments week by week. When I have sat at social security appeal tribunals I have seen the full record of those. Again, when I have sat on similar cases in magistrates' courts, I have then seen only specimen cases brought. I was disturbed last year to discover the effect that Court of Appeal judgments would have on the ability of the DSS to prosecute fraud successfully. If payments are made directly to a bank or building society, there is the added problem that there is not a specific declaration for each payment; so the fraudster cannot then be prosecuted under existing powers. I should be grateful if, in replying, my noble friend the Minister will confirm that this clause, like so many other provisions in the Bill, will be effective in the prosecution of not only individuals or groups of people but, in particular, landlords. As I understand it, landlord fraud is dealt with throughout every clause in the Bill.
Clause 16 introduces a provision to allow local authorities to recover housing benefit overpayments from payments made directly to a landlord in respect of other tenants. An example is where a tenant makes a claim for housing benefit, is overpaid and then moves on, not leaving a trace behind. If payments are not recoverable by deductions from benefits, the clause then makes it possible for them to be recovered by action in the county court in England and Wales and the sheriff court in Scotland. This is a very sensible measure to introduce in order to redress an anomaly.
490
Fraud endangers access to benefits by the genuine claimant. I welcome the measures introduced in the Bill. They will play a valuable part in the work of detecting and preventing the commission of fraud. In that way we can protect the vast majority of claimants who are honest. That must be the best course of action for us all. I commend the Bill to the House.
5.10 p.m.
Baroness Gould of Potternewton: My Lords, as made clear by all noble Lords who have spoken, no one can argue against the principle of the need to tackle vigorously the corruption of our benefits system by fraudulent claims, which has a detrimental effect on the entire social security system. Nor would anyone argue, I believe, that tracing and eliminating social security fraud is not a difficult and complex process. It is perhaps simplified by information technology but, as the debate has shown, our social security system is still something of a labyrinth.
While the Bill is welcome, a number of aspects cause concern. I wish to refer to one or two, in particular the effect on individuals. For instance, the Bill appears to treat all fraud as equal and deserving of the same response: penalties appear to be mandatory in all circumstances. Yet the level and types of fraud vary considerably, from large-scale counterfeiting of order books to failure to declare a one-off payment of £5. No fraud is justified but there will be those who defraud from a straightforward criminal intent dishonestly to obtain a large sum of money while others will be people whose families, for whatever reason, find it impossible to live on the level of benefit received.
Will the Minister tell us what research was undertaken to classify the different factors which cause people to defraud the system and whether the result of that research is available? Only with that knowledge is it possible to devise the most appropriate penalties and assess whether harsher penalties will have a deterrent effect.
Another general concern is the need for assurance that the element of fairness to the genuine claimant is retained. Fraudsters, be they in the public or private sector, must be identified; but we must ensure that such activity does not deter those in need from claiming benefit. My noble friend Lady Hollis referred to cross-matching being useful not only to tackle fraud but also to ensure that those entitled to benefit receive it. I, like my noble friend Lord Stallard, fail to understand why it is not possible to identify the nearly one million pensioners who are entitled to income support but who do not claim it.
As I understand it, it is the view of the Government—and I hope the Minister will confirm or deny this—that the claiming of benefit is a matter of personal choice and that there will always be those who choose not to make a claim. That would be true for a few but, with the greatest respect, for the majority that is nonsense. Choice depends on knowledge of the different options available. Most who fail to claim do so through unawareness or because of the complexities of the system.

491
I also understand that the Government believe that the cross-checking of data for the benefit of claimants is contrary to the European Convention on Human Rights. Do the Government believe that Article 8 of that convention, as referred to by the noble Earl, Lord Russell, stands in the way of cross-checking data in such a manner? Does not the convention allow various exemptions by law for other purposes which would cover this type of cross-checking?
As stated by noble Lords, the sharing of personal information and data matching between two or more organisations, crucial as it is, raises fundamental principles of data protection, including the principle that personal information should only be used for the purpose for which it is collected. The wider the scope of data matching, the greater the threat to the individual because it involves analysis of information about large numbers of people when there is no prior cause for suspicion. There must be a balance between the use of data matching to detect fraud in order to protect public funds and the individual's right to privacy.
The Bill makes no reference to the need for compliance with the principles of the Data Protection Act nor to the rights of individuals under that Act. Claims for benefit usually follow a major and often traumatic change in a person's circumstances. Benefits are claimed on different forms from different agencies; different benefits are awarded for different lengths of time; and the changes of circumstances that need to be reported also vary. It is easy for people to become genuinely confused.
There is a serious omission of a right of redress for people who may be wrongfully accused of fraud or misrepresentation through mistaken identification or other errors which are almost bound to occur in an exercise of this size.
I turn now to the question of relevant information. Who determines relevance? At present within the Benefits Agency information which is considered relevant is currently passed to different sections in writing. Presumably that will in future be done by computer, but the principle does not change. As each section only has the expertise to deal with its particular area of benefit, important information may not seem relevant to one section but may be vital to some other aspect of the claim. I say that from heart-searching personal problems which I have recently faced. Relevance will become more complicated as the transfer of information is extended; there is no definition in the Bill.
I am also concerned about delay in making payments. It is inevitable that steps taken to prevent and detect abuse will involve some delays in dealing with claims. In the meantime, the claimant will not be receiving the benefit to which he or she is entitled. Technology will not necessarily lead to greater speed in processing claims. Delay can be disastrous to those in need. Nor will technology lead to greater accuracy. There have been many examples of incorrect accounting, of the claimant being given incorrect information, with consequent confusion and further delay.
492
It is right that the record of detection and different initiatives taken by local authorities should be actively monitored and links between authorities encouraged in order to promote best practice. In the main, local authorities do take fraud seriously. We must applaud those that have already taken innovative action to identify and eradicate benefit fraud within their own area. Good examples are the working together of the London boroughs, the DSS and the London Team for Action against Fraud and the extensive home-check programme in the London Borough of Haringey.
However, fraud is not confined to London. The Social Security Select Committee suggested that organised fraud was increasingly migrating to small towns and even rural areas. In its document Recovering the Missing Millions the Labour Party proposes the establishment of a further nine fraud investigation teams on the same basis as LOFIT. It is estimated that that would lead to net additional savings of over £310 million a year for an initial start-up cost of some £9 million, a measure which should surely be supported.
Local authority associations have also welcomed the power contained in Clause 16 to recover benefit overpayments, an area of fraud which is well organised and highly sophisticated. As my noble friend Lord Stallard said, this new power does not go far enough. The Government's own research has found that while only a third of housing benefit claims are for private rented accommodation, those claims account for two-thirds of all housing benefit money lost through fraud. The Minister cited an example of fraud to justify his case; I should like to quote two examples of landlord fraud. When eight managing agents were challenged by the London Borough of Greenwich, it was found that of 292 properties investigated 88 were empty. There is also the example of the landlord in London making 165 housing benefit claims, of which one-third were found to be bogus, costing the taxpayer £5,000 a week.
There is no doubt that the Government's lack of action on landlord cheats means that every taxpayer has lost £400 through housing benefit fraud since the last general election. Local authorities would be greatly assisted in counteracting this fraud by having the right to obtain proof from landlords and managing agents of their right to control the property for which they are claiming direct payment of housing benefit; by having the right to refuse payment if refused entry to a property; and by having a register—not just information provided—of all landlords who own a number of properties.
There are many other queries about the Bill but at this stage I shall confine my remarks to two further but related aspects. They relate to Clauses 17 and 18. I should like to hear from the Minister the justification for the provisions and his evidence of widespread fraud in relation to disability living allowance or the attendance allowance. I am sure that there is some fraud, but there is also protection. No claim is made without corroboration by either a doctor or an independent person. The people with whom we are dealing are either chronically sick or disabled. And they are extremely vulnerable. The proposal allows the Secretary of State to conduct fishing exercises, even when there is no existing

493
evidence of fraud. It could, for example, mean unannounced calls on people who have serious mental health problems or severe learning difficulties when there has been no change in their circumstances. Would not it be better, instead of the house call, to ensure that claims have to be made on a regular basis and all those claims corroborated? That would safeguard a very vulnerable group of people, many of whom live alone and find it difficult to communicate.
Similarly, there is the power to require someone in receipt of DLA or AA to submit to a medical examination "in prescribed circumstances". Can the Minister define the nature of "prescribed circumstances"? Surely it is a little draconian to withhold benefit if someone fails to attend such a medical examination before at least ascertaining the cause of non-attendance. People who have legitimate reasons for not attending should not be penalised.
Legislation is necessary to address the pernicious problems of fraud. But we have to ensure that such legislation is fair, respects the privacy of the individual and does not deflect the genuine claimant from his entitlement to benefit. The Bill as it stands does not wholly satisfy all those requirements. However, as it goes through its various stages in this House, I hope that, as opposed to our lack of success in the other place, we can persuade the Government by reasoned argument of the need for amendment.
5.22 p.m.
Lord Mackay of Ardbrecknish: My Lords, we have had an interesting debate this afternoon on this important but, in terms of some of the Bills that I have taken through this House, quite small Bill. I noticed that the noble Earl, Lord Russell, said that he did not wish to score any party points. I rather hoped that in my contribution I had not attempted to score many party points either. I thought that enough party points had been scored in the second half of Question Time this afternoon without adding to them in the course of this Bill. I am not entirely sure that the noble Baroness, Lady Hollis of Heigham, can be absolved from not trying to score the occasional party point, but that is quite another matter. I may even attempt to keep to the noble Earl's strictures in my summing up.
This has been an interesting and wide-ranging debate, as I am sure noble Lords will appreciate. I may not be able to cover every point but those which I do not cover will, I am sure, be taken up at Committee stage.
Before I turn to the Bill itself, perhaps I may address points made by the noble Lords, Lord Stallard and Lord Whitty, about the London Local Authorities Bill and, I hope, get it out of the way before coming to the Bill in front of us.
First of all, the Second Reading of that Bill is not for Wednesday. It appears on the Order Paper as a formality. The Second Reading debate will be agreed by the usual channels. I am sure that they will note the interest in the Bill expressed by both noble Lords. The London Local Authorities Bill does not concern only fraud. It goes a good deal wider. Also, it deals only with
494
London, not the whole country. So even in those places where it may overlap, it does so only in part, with those two limitations attached to it. However, with London itself clearly there are some areas of overlap between the two Bills. My officials are in touch with the sponsors of the London Bill about the practical implications of any overlap. For example, if the current Bill receives parliamentary approval, it would be desirable to ensure that there is no conflict between the provisions applying to this Bill and those looked for in the London Local Authorities Bill.
Let me say to both noble Lords that, broadly speaking, the Government share the objective of the London Bill's sponsors to help root out benefit fraud. But it will be important to ensure that any new measures follow on from that objective. For example, the noble Lord, Lord Stallard, referred to proposals to enable local authorities to refuse direct payments where fraud is suspected. The fact is that local authorities already have not only that right but a duty not to pay benefit if fraud is considered. We propose to issue further guidance to local authorities to clarify their rights and responsibilities with respect to direct payments. I hope that answers the points raised about the London Bill and how it impinges on this Bill.
Let me take the particular parts of the Bill in turn, starting first with cross-checking of information, data-matching and the like. My noble friend Lady Anelay of St. John said very clearly that we ought to be able to harness the power of IT. She gave rather interesting examples of how we tried to match data in the paper era before information technology came along. The use of modern technology under carefully controlled conditions will certainly enable quick and effective checks to be made without putting the genuine claimant through any additional effort. Both my noble friends Lord Northesk and Lord Chelmsford emphasised the importance of the new information technology being provided to us.
My noble friend Lord Chelmsford made a particularly important point, especially when it comes to data-matching; namely, that the computer forces one to be much more exact, much more tidy and much more disciplined. Noble Lords who use a computer even at the lowest level as a wordprocessor will know that those three disciplines are certainly imposed by the computer.
Of course I understand that there are concerns about the confidentiality of information. We in government take that issue seriously. We do not believe that the powers in the Bill will allow confidential information to leak out (if I may so describe it) from government. But we believe that it is important that that information should be available to the DSS from other departments. We believe that the degree of benefit fraud is such as to justify taking the powers in the Bill. Although there is a strong public interest in ensuring confidentiality of personal information, there is, in this case, an overriding public interest in ensuring that the benefit system is secure.
The noble Baroness, Lady Hollis, sought assurances about the accuracy of the data. I have already briefly touched on the disciplines of the computer, one of them

495
being that it forces the user to be much more accurate in the input of data. But it is important to remember that in a data-matching exercise the sets of data from the different databases are compared electronically. Only cases in which there is inconsistency are "thrown out" by the computer for further attention. Those cases are then checked to eliminate what I suspect will be quite a considerable number of those in which the inconsistency is simply a result of inaccuracy: perhaps the wrong post-code was stated; perhaps someone used a different Christian name; or perhaps someone put in a middle name on one form and not on another. I understand such inaccuracies. I am not a great expert in data matching but I understand that the data-matching systems are well equipped to cope with those kinds of basic inaccuracies between different data bases.
It is only in those cases in which there is an indication of fraud or incorrect payment that there will be any reference for further investigation. Fraud officers will be fully trained to be aware of the likelihood that in fact not all cases referred to them will be fraudulent and that a charge of fraud will only be brought if the evidence is perfectly clear in that regard.
My noble friend Lord Northesk spoke of security measures in the department. May I say that all data-matching exercises will be carried out at a secure site by trained personnel. All information received from other government departments will be held and accessed in strict confidence. There have been no known or recorded incidences of successful external hacking attempts into the DSS computer system. We do attempt to protect our systems as far as possible from external attack. I hope that is helpful.
The noble Lord, Lord Lester of Herne Hill, talked about no complaints procedure or no redress in data matching. I may say to the noble Lord that the department has in place a comprehensive complaints procedure. Information on making a complaint is set out in the leaflet Tell Us About It. Anyone dissatisfied with any aspect of the service they have received can contact the customer complaints manager—there is one in every district office. If he is still dissatisfied he can contact the district manager who will investigate the complaint further. Where an individual believes that the department has mishandled matters he can complain, through his MP, to the ombudsman. If the complaint arises specifically from data matching or any other form of data processing and the individual believes that the department has not, in fact, dealt with his complaint properly, the individual can take his complaint, under the provisions of the Data Protection Act, to the data protection registrar.
As I said earlier, in data matching we will not be dealing with computer-generated decisions. Perhaps the noble Lord, Lord Lester of Herne Hill, thinks that computers are just a bit cleverer than they really are, at least at this stage of the game. Computer matching, as I have said, will enable cases which are obviously unusual or inconsistent to be investigated by trained officials and all their work will be subject to the normal rules. If, in fact, they suspend benefit it will be subject to the normal rights of appeal.
496
The noble Baroness, Lady Hollis of Heigham, my noble friend Lord Chelmsford and some other noble Lords asked whether the code of practice on data matching was statutory or one without statutory backing. As my honourable friend said in response to the Opposition's proposed amendment on this in another place, we do not see a need to make a statutory addition to the existing data protection arrangements, which are themselves subject to general review as we move towards implementing the EU directive, and I will answer that point in a moment or two.
The use of data by the department is already subject to the Data Protection Act and the Computer Misuse Act, to offences under Section 123 of the Social Security Administration Act and within the framework of the European Convention on Human Rights and the Council of Europe recommendations on the use of social data.
In addition, strict internal procedures will be observed and the assurances which my honourable friend the Parliamentary Under-Secretary gave in another place will be adhered to.
Baroness Hollis of Heigham: My Lords, if the Minister is continuing with this point I will gladly sit down, but before he leaves this point I did want to press him on his reply on the data protection register. If the Minister could indicate, I would be grateful.
Lord Mackay of Ardbrecknish: My Lords, I was about to say: however, our minds are not closed as far as a code of practice is concerned. We have certainly noted the letter which my right honourable friend Mr. Lilley received from the data protection registrar, so our minds are not closed and we will consider the case for further assurances, taking into account the points made today by your Lordships.
Leading on, as I mentioned I would, to the EU data protection directive, questions were raised by my noble friend Lord Chelmsford and by the noble Lord, Lord Lester of Herne Hill, about this. We believe that the United Kingdom's data protection regime should be the least burdensome for business and other data users while affording the necessary protection for individuals. We intend to implement the directive in order to satisfy our obligations under European law. We will consider whether any additional changes to the current data protection regime are needed to ensure that it does not go beyond what is required by the directive and the Council of Europe Convention.
We are considering whether the EU Data Protection Directive requires any extension of the data protection registrar's powers. In doing so, we will have regard to the views of the registrar herself as well as to those of other respondents to the recent consultation paper on the directive.
Moving on to the section on offences and penalties, I do not think I have much to say there. Perhaps I should answer the noble Earl, Lord Russell, and my noble friend Lady Anelay of St. Johns on the question of "dishonestly". The noble Earl asked about mens rea. The use of "dishonesty" in Clause 13 is intended to

497
represent its normal meaning in criminal law and this would convey mens rea: a dishonest intent. I hope that that is helpful to the noble Earl.
The noble Lord, Lord Whitty, suggested that the Bill shifts the burden on claimants to report changes. I do not believe that is true. Claimants already have a responsibility to report changes of circumstance which affect their entitlement. Currently there is no penalty where claimants fail to report changes, and if they have done so fraudulently we believe there ought to be some sanction other than just to repay overpayment. But that is in cases where it has been done fraudulently. The noble Earl wondered how people would know about the need to report changes of circumstances. He challenged me—I hope without expecting me to try to answer—to give a full resume of all the regulations the benefits agency has to apply in this regard. I think the only point the noble Earl makes there I might just make back to him: perhaps that underlines the need for the changed programme and for policy simplification to make all these matters a good deal simpler for those who operate them.
Applicants and claimants are informed at the outset of their responsibility that they must report changes which may affect benefit. People who sign on as unemployed are asked whether anything has changed; order books state the changes which should be reported, and ACT customers are similarly advised. When it comes to looking at changes which were not reported, it is up to the department—and to the local authorities in the case of housing benefit—to show that a failure is fraudulent and is not, in fact, just a mistake.
A good deal of the debate was taken up by landlord fraud. There is a dispute between the noble Baroness and myself about the extent of the fraud. We have been over that before and I do not think it will add anything to this debate if I simply say that our estimates are based on the DSS accuracy review of housing benefit. It is not the case, as we see it, that the majority of fraud is perpetrated by landlords. I am afraid that landlords and tenants are both involved, and sometimes involved together, colluding with the fraud. I say to the noble Baroness, Lady Gould of Potternewton, that we take landlord fraud very seriously. I suggest that the penalties on indictment, for example of seven years' imprisonment or unlimited fines, would certainly be available to a court dealing with serious landlord fraud. I do not think these penalties could be considered in any way as timorous.
Between the Bill and other action we propose we have 10 key points on landlord fraud. We are introducing the power to enable local authorities to demand information from landlords about whom there is a suspicion of wrongdoing. We are extending the powers of local authority investigators, by analogy with the Benefit Agency's investigators, to enable them to enter landlords' business premises and inspect the records. The power to pass information between local authorities and between the local authority and the department will make multiple claims—one of the most common frauds involving landlords—much more difficult. We are introducing new provisions to improve
498
the recovery of overpayment from landlords who received the original payment directly and have other payments flowing to them at the same time.
The new powers to inspect local authority performance will ensure that all authorities take appropriate action. The new offence of failing, without reasonable excuse, to report a change of circumstances required under regulations and the new system of administrative penalties as an alternative to prosecution will both apply to landlords fraudulently receiving direct payments. The ability to prevent redirection of benefit mail will prevent fraudulent landlords from exploiting the redirection facilities to collect benefit for fictional or long-departed tenants.
We have invested £1 million to set up the London-organised fraud investigation team, which will look at serious landlord fraud in the capital. We have commenced a national roll out of the housing benefit matching service, which will make landlord fraud more difficult to commit and easier to detect by allowing local authorities to data match. Finally, we are providing strong financial incentives for local authorities to tackle fraud, including landlord fraud, through the subsidy scheme.
So I believe that landlord fraud can be prosecuted, that the powers we have given local authorities will help them to deal with this issue and that the penalties available to the courts when a case gets to court should be more than sufficient, if properly used, to send out a very serious signal to people, whether landlords or tenants, who are considering engaging in serious fraud.
The noble Lord, Lord Stallard, referred to DLA and AA. The problem here is that once an award of DLA or AA has been made it cannot be reviewed unless a written application is made to the adjudication officer. There is a body of opinion within the disability lobby that maintains that the legislation as drafted gives only the claimant the legal right to apply for a review. Even if there is indisputable evidence that benefit is being paid incorrectly, the Secretary of State has no power to ask the adjudication officer to stop the overpayment. The department does not accept that interpretation, but we are keen to avoid legal challenge. Therefore, we are taking the opportunity of this Bill to put the Secretary of State's powers beyond doubt. The noble Lord, Lord Whitty, said that overpayment is not always fraudulent. I hope I have answered that point. Of course that is the case and it is up to the department and the fraud investigation officers to make that decision.
The noble Earl, Lord Russell, asked me about national insurance numbers and the position of homeless people or people with learning disabilities. I understand the noble Earl's concern in this regard. People who apply for benefit are asked to provide some basic information—their age, name, address, previous address and so on—and that, taken with other supporting information such as earlier correspondence, allows the DSS or an employer to confirm who the person is and establish the national insurance number. I can assure the noble Earl that people with learning disabilities will not be thought to be making fraudulent claims if they cannot remember their national insurance numbers. I do not

499
think we should go to the test of each of us having to show that we remember our national insurance number. I, at least, would lead the band of failures in that regard.
I was asked about the redirection of mail being used by people other than the department to find out where someone lives, perhaps in a case of domestic violence. I hope I can assure the House that the provisions of the Bill set out the uses to which the information disclosed to the department may be put. It is to be put to the use of preventing or detecting fraud, to check the accuracy of information already held by ourselves and local authorities and for official purposes relating to social security. Any official who uses any departmental information for unauthorised purposes is guilty of a serious offence. That would include checking the whereabouts of someone for whatever reason—either because they knew of them or they wanted to do a favour for a friend in a pub who wanted to find out where someone had gone. Any such official would be guilty of a very serious offence. Prosecution, dismissal from his job, or both, could easily be the outcome. I hope that helps the noble Earl.
My last point is one that is not in the Bill. I think it fair that I sum up by dealing with it briefly. I refer to take-up. We already do a great deal of work to encourage the take-up of benefits by those with entitlement. We provide information which we believe to be comprehensive, accurate, accessible and easily understood to explain to people what their eligibility may be and what benefits are available. I do not think take-up will ever reach 100 per cent. There will always be some people who, for whatever reason, do not wish to avail themselves of benefits even though they are apparently entitled to claim. I would certainly not want to see people being forced to claim benefit if they did not want to. I suspect that many of the instances that are used are for small amounts and that people actually make decisions that they do not wish to go to the bother or hassle of going to the Benefits Agency in order to fill in forms and so on if they are moving in and out of benefit as the year progresses and their circumstances change. However, we have a comprehensive policy of publicising benefits and emphasising to people what benefits are available to them.
The noble Baronesses, Lady Gould of Potternewton and Lady Hollis of Heigham, and the noble Lord, Lord Whitty, suggested that we could use data matching to identify those people who had not claimed their benefit. That would be taking data matching a good deal further than what is specified in the legislation, which is to investigate fraud. It also assumes that the data to be matched would have all the information on all the income and all the savings of all people, which I suspect would be quite a different scale of operation. I do not believe the systems we have access to contain that amount of information. Nor do I believe that it would be economic or feasible to work on the kind of scale that is being envisaged. What we do now is sufficient. We keep at it. We keep running campaigns. We work with many of the organisations mentioned by the noble Lord, Lord Stallard—Help the Aged and so on—in order to bring to the attention of people who should be applying for benefits the availability of those
500
benefits. We are also attempting through the change programme and policy simplification to make the applications for benefits simpler, easier to understand and easier to complete.
This is an important Bill in the fight against benefit fraud. It will ensure that more fraud will be detected and that those guilty of offences will face tougher penalties. In this way more cheats will he punished and more would-be cheats will be deterred. We recognise, as noble Lords have said, that the vast majority of people claiming benefit are completely honest. But for those determined to abuse the system, this Bill reduces the chance they have of success. It means that there is a greater chance that they will be caught and a greater likelihood that they will be punished. I commend these measures to the House and invite your Lordships to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Register of Occupational and Personal Pension Schemes Regulations 1997
5.48 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish rose to move, That the draft regulations laid before the House on 28th January be approved [11th Report from the Joint Committee].
The noble Lord said: My Lords, I think that my speech on these regulations will be even less controversial than my previous speech and certainly a lot less controversial than my answers to the fourth Question at Question Time.
It may help if I begin our discussion of the register regulations by noting that in the past similar regulations, which introduced criminal penalties, were subject to the negative resolution procedure. Such regulations are, however, now subject to the affirmative procedure. The change was made to ensure that your Lordships' House could give appropriate consideration whenever a criminal penalty was being introduced. That reflects concerns expressed by the Select Committee on the Scrutiny of Delegated Powers and in the House of Lords itself during the Committee stage of the Pensions Bill.
Perhaps I may give some background information about the register and its operations. The register was established in 1991 and the records detail both occupational and personal pension schemes. The registration process provides basic information on individual schemes. That enables the registrar to provide a scheme-tracing service. The registrar also collects the pension schemes levy.
The tracing service is particularly important. Many individuals with preserved pension rights tend not to focus on them until they approach retirement. Someone who has lost contact with their scheme can contact the registrar and have the scheme traced through the register database.
The Register of Occupational and Personal Pension Schemes Regulations 1990 govern the register's operation. In practice the register works well, but while

501
We have retained most of the existing provisions we have also taken the opportunity to simplify the registration process. We are extending the time limit allowed for schemes to report changes to the registrar from six months to 12 months. This should mean that schemes will be able to notify changes at the same time as they make their annual levy payments. That keeps the administrative burdens for both the scheme and the registrar to the minimum.
The regulations also need to be amended because of changes introduced by the Pensions Act. First, we need to appoint the Occupational Pensions Regulatory Authority (OPRA) as the new registrar from April 1997 in place of the Occupational Pensions Board. Secondly, we need to amend the regulations because of the introduction of the new general and the compensation levies. The regulations also change the requirements about disclosing information from the register. At the moment, those engaged in research are allowed direct access to the register database. That has raised concerns about confidentiality, particularly in relation to the data protection legislation.
We propose that in future only the registrar's staff will have the right to inspect the register. However, we recognise that the register is the only source of information of its kind about pension schemes and it would not be right to limit the dissemination of this information where there is a legitimate reason for it to be provided. So the registrar will now be able to provide information for statistical analysis direct to any organisation or individual.
As well as offering the free tracing service for scheme members, the registrar will continue to provide information free of charge to the pensions ombudsman and to trustees about their own schemes, if requested. We also consider that the register is an important source of information for other bodies. The regulations therefore prescribe that information can be given to OPRA, the Pensions Compensation Board, insolvency practitioners and the official receiver.
At the moment a breach of the requirements to provide information to the registrar can result in a criminal sanction. A court can impose a fine up to level 3 on the standard scale, which is a fine of up to £1,000. As a result of the Pensions Act and these regulations, the maximum fine will now be level 5, which is a fine of up to £5,000.
OPRA also has the power to impose a medium-level penalty for anyone who uses information from the register for commercial purposes. This carries a maximum civil fine of £1,000 for an individual or £10,000 for a corporate body.
There are also minor changes to the items of information which are required for the register, including one completely new piece of information about the nature of benefits that a scheme provides. These regulations have been subject to extensive consultation with practitioners and others who have an interest in these matters. We have addressed their concerns and the comments received. I believe that the regulations provide an effective and sensible way forward and I commend them to the House.
Moved, That the draft regulations laid before the House on 28th January be approved [11th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Merchant Shipping (Ro-Ro Passenger Ship Survivability) Regulations 1997
5.53 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen)The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen) rose to move, That the draft regulations laid before the House on 24th January be approved [10th Report from the Joint Committee].
The noble Viscount said: My Lords, these regulations would revoke the Merchant Shipping (Ro-Ro Passenger Ship Survivability) (No. 2) Regulations 1994 and further enhance the safety of roll on-roll off ferries serving UK ports by implementing an international agreement negotiated last year in Stockholm.
Roll on-roll off ferries provide essential services. They account for around 50 million passenger journeys each year. Businesses and the general public rely on them and rightly expect to travel safely. The Government have long recognised their responsibility in the international community to set the framework to enable this expectation to be met. Our aim has been to seek and secure the highest practicable safety standards for these vessels.
This has been a developing process, the tragic catalyst for which was the "Herald Of Free Enterprise" disaster in March 1987. We must never forget, particularly as we approach the tenth anniversary of Zeebrugge, the 193 lives which were lost. That memory has fuelled the Government's determination over the years to secure further improvements in ferry safety where necessary. The court of inquiry into the "Herald" recommended many safety improvements, both in the short and longer term. We acted quickly to introduce measures such as the installation of closed-circuit television to monitor the car deck; indicator lights on the bridge to show that the bow doors were closed; new requirements for emergency equipment; a new code of practice for vehicle stowage, and many others.
We have also taken steps to improve enforcement of standards. Inspections of ferries have become more rigorous. All ferries serving our ports are subject not only to a thorough annual survey, but also to at least two further inspections a year. Unannounced operational checks are also carried out, whereby inspectors travel incognito, only making themselves known to the master if needing to inspect a restricted area. And further checks on the operation of ferries are now coming into play as the European Community's early implementation of the International Safety Management Code begins to bite on ro-ro ferries. We now inspect not just the ferries themselves, but also the shore-based operation and the operating company's whole system of safety management.
Many of these improvements have focused on operational and safety management aspects. But we have also been determined to address any structural issues, which might affect the likelihood of capsize in the event of a collision. While there is a low statistical chance of such an accident, we have worked over the years to try to ensure that even this small risk is reduced as far as practicable.
Shipping is, of course, an international business and its safety depends on international agreement. In the early 1990s we pressed hard in the International Maritime Organisation for agreement on a higher worldwide survivability standard. The SOLAS 90 standard was a significant improvement, but it applied only to new ships built after April 1990. Despite a vigorous campaign by the UK, other IMO members failed to agree that the SOLAS 90 standard should also be applied to older ships, for which a much lower standard, the SOLAS 92 standard, was agreed.
We found this situation unacceptable. We therefore decided to take the virtually unprecedented step of brokering an agreement with neighbouring states outside the IMO framework. In 1993 we reached agreement with 13 other European maritime administrations to apply the SOLAS 90 standard to all ro-ro ferries operating internationally to ports in north-western Europe. That agreement was implemented in UK law by the 1994 regulations which these regulations will supersede.
Ferry safety issues were subsequently and tragically brought again to the world's attention with the loss of the "Estonia" in September 1994. It is to the credit of the Secretary General of the IMO that he immediately responded to the enormity of that disaster by establishing a panel of experts to review fully and quickly all aspects of ferry safety.
In early 1995, research carried out in the UK and Denmark demonstrated that in those ships where the basic survivability was already high, additional measures, such as transverse bulkheads, could limit the destabilising effect of water entering the car deck and so further enhance the chances of survival. But the key issue was the basic robustness of the ships' design. This research significantly informed the panel of experts' recommendations which were considered at a specially convened SOLAS Diplomatic Conference in November 1995.
The UK gave strong support to the whole package of measures proposed by the panel and particularly to a new survivability standard, which required ships to meet not only the SOLAS 90 standard, but also to resist capsize with up to half a metre of water on the car deck. Given the circumstances, we were very disappointed when the Diplomatic Conference failed to adopt the new survivability standard. It could agree only on the worldwide application of the SOLAS 90 standard which the UK and other parties to the 1993 agreement had already adopted.
But the Diplomatic Conference did allow administrations to enter into regional agreements to apply a higher survivability standard if they wished. The United Kingdom Government took a leading role in the
504
negotiations which resulted in the Stockholm Agreement three months later. This agreement will apply a higher survivability standard, developed from the panel's original proposals using further detailed research, to all ro-ro passenger ferries operating on international journeys in north-western Europe and the Baltic Sea.
The timescale for action, which is set out in Regulation 6, is a demanding one. Those existing ferries which are further from the standard must be modified sooner than those closer to it—all will have to meet it by 2002. New ferries must be built to it. The vast majority of UK ferries are already close to the new standard. Regulation 4 reflects our decision that the Stockholm standard shall apply not only to all ferries operating on international routes but also to those on UK domestic routes where conditions are comparable to international journeys. Regulation 9 requires all ships covered by the regulations to carry a certificate of compliance with the new standard.
I should also explain some of the other key regulations. Regulation 7 allows an established operator, who will therefore generally be bound by the Stockholm standard, some flexibility to provide additional services to deal with seasonal demand. The standard applying to any ferries operating such services will depend upon the prevailing sea conditions during the period of operation. Those conditions must be agreed between the Secretary of State and his counterpart in the country in which the second port is situated. A very limited exemption from the standard is also allowed under Regulation 10 to enable the Secretary of State to agree that a ferry may make a single voyage to or from a UK port. This allows a ship which would otherwise be required to meet the standard to be moved from one port to another for a particular purpose, such as for repair or for sale. Adherence to the regulations is enforced through Regulation 11, which sets out penalties for non-compliance and through Regulation 12 which provides for the detention of a non-compliant ship.
The Stockholm Agreement is a significant achievement to which we are totally committed. We were the first country to sign it—on 1st July 1996, the day it became open for signature. The important point is that now we must implement it rigorously. The Government are grateful to those other nations which have co-operated with us to enable higher standards to be applied to ferries serving our ports. We acknowledge the co-operation of the ferry industry, which we have consulted extensively throughout. Compliance with the higher standard will not be achieved without significant cost. I welcome the industry's positive attitude in recognising the need for further action. We are also grateful for the constructive role played by those representing users of ferry services, and most particularly for the supportive attitude of the Herald Families' Association, which has done so much to increase awareness of these issues since the tragic loss of that vessel, and to which I pay tribute.
The regulations before the House today implement the agreement. They will ensure that ferries serving our ports will enjoy a survivability standard significantly higher than that in force outside north-western Europe

505
and the Baltic. They will enhance further the already very high level of safety which we have striven to achieve. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 24th January be approved [10th Report from the Joint Committee].—(Viscount Goschen.)
6.3 p.m.
Lord Clinton-Davis: My Lords, I thank the Minister first for recounting some of the history underlying the issues which we are considering and, secondly, for properly paying tribute to the Herald Families' Association. Those families have undergone terrible trauma and have been most constructive in their attitude since that terrible event some years ago. I very much remember it because I was the transport Commissioner in Europe at the time. I shall always remember the appalling situation which afflicted so many people when I visited the walking wounded (both physically and mentally) in the hotel where they were staying outside Bruges, seeking from that tragedy a haven which they could never obtain.
Although I welcome the steps which the Minister outlined, it is sad that in so many instances one sees international regulation only by catastrophe. Both the "Herald of Free Enterprise" and the "Estonia" disasters involved substantial loss of life which triggered this response. Why cannot we deploy more effectively—not simply in the environment but in the field of transport in particular—the precautionary principle which is all too rarely invoked?
Although these are important mitigating measures, and I commend the Government on the action that they, together with other governments, have taken, the Minister spoke of the highest standards for ro-ro vessels. I do not think that we have yet achieved that. I remember vividly at the time of the "Herald" and, more recently, the "Estonia" disasters that serious doubts were expressed about the stability of ro-ro ferries. Those doubts were expressed not only by the press and by politicians, but also by naval architects experienced in these matters. Indeed, such doubts have been expressed over a long period of time. We have to take into account the fact that accidents involving ro-ro vessels occur all over the world and that literally thousands of lives have been lost because of the instability of those vessels. I do not know whether we have yet managed to achieve the right answer. Undoubtedly, these measures and other steps which have been taken have done much to help to solve the problems. But are they sufficient?
There can be no doubt that the international community responds to such problems far too slowly. Perhaps difficult economic factors stand in the way of anything like a rapid and effective response. I am not criticising the International Maritime Organisation. It is not the IMO's fault; it is the fault of member states. However, I think that the Government are entitled to be acquitted of any such blame in this regard. I say at once that I greatly admire the work of the present secretary-general of the IMO who has been outstanding.
506
I have had the pleasure of working with him and with his predecessor over many years and there is no doubt that he would have liked a far speedier response to these tremendous problems. However, he is inhibited by virtue of the facts to which I have just alluded. When action is demanded in the wake of disasters such as those of the "Estonia" and the "Herald", it is to the credit of the IMO that, although it would certainly prefer to have agreements brokered within the framework of the IMO, it has recognised that public opinion frequently demands much swifter action, at least on a regional basis. I applaud the fact that without doing damage to the integrity of the IMO or to its influence in international shipping councils, certain regional agreements have now been undertaken.
All who participated in the consultations and deliberations leading to the Stockholm Agreement merit the highest commendation. Both sides of industry contributed. Indeed, governments and everyone concerned should be applauded, but there can be no room for complacency, especially if we are to anticipate, rather than to react to, any such disaster in the future—and I believe that there will be further shipping disasters. They will not necessarily occur in this area—one hopes not—but we need a far more proactive attitude on the part of the international shipping community.
The Minister spoke of the British Government's work within the IMO to cause others within the wider shipping community to adopt these regulations. What form does that encouragement take? What success are the Government enjoying in that exercise? Clearly, if I can treat that as something of a rhetorical question, to enjoin in every way possible the support of maritime-interested countries in the IMO and in the European Union is vital. I gather some success in this context has been forthcoming. For example, France and Spain have different problems and, as I understand it, do not want separate levels of regulation in law. To have one level applicable to northern maritime countries and another applicable to those of the Mediterranean they would regard as inappropriate. Nevertheless, I understand that they have given support to this measure. Perhaps the Minister will confirm that; if it is right, I applaud the decision they have made. In addition, I ask the Minister to say what progress is being made in the IMO to secure the wider application of this type of measure in the international shipping community.
I turn to the question of simulated exercises dealing with evacuation. I understand that the exercises carried out by the Stena Line were of great value. Of course, it is impossible to substitute with precision the real conditions that apply at sea in an emergency. Evacuation in a crisis needs constant training and upgrading of techniques so that, as best as possible, lives can be safeguarded. Perhaps the Minister can say something about such exercises and about the improvement and upgrading of techniques. Incidentally, I ask whether in his view ferry design is kept under satisfactory review and, in particular, what is happening in that regard.

507
The Minister mentioned the fact that some, if not most, UK ferries meet the new standards. That implies that some do not. Perhaps he can indicate the number of UK ferries that are not likely to meet the new standards.
Clearly, improving safety at sea is imperative. The regulations are thoroughly to be welcomed in that context.
Baroness Thomas of Walliswood: My Lords, we broadly welcome the new regulations and in particular appreciate the value of the very greatly increased inspection regimes which are now in operation. Before I go any further, perhaps I may say that I am still concerned about the practical implications of Regulation 7 governing seasonal use. Perhaps the noble Viscount can give more information as to how that would operate in practice. After all, the sea is no respecter of the seasons and is not necessarily less stormy just because it is the summertime; nor is it stormy or calm on command. I wonder how the arrangement would actually work in practice.
To go back to the main topic, some may say, as the noble Lord has just said by implication, that the regulations ought to have been introduced sooner following the "Herald of Free Enterprise" disaster, on that March day nearly 10 years ago when 193 lives were lost, and the inquiries and research that followed. It is true that a decision on the part of the Government to move ahead with a European level agreement to apply SOLAS 90 standards to existing ships operating to ports in north west Europe gave our region better safeguards in that respect than those that had existed world-wide, but apparently it needed the "Estonia" disaster in 1995 with the loss of 900 lives to persuade the IMO of the need for a rapid review of regulations and further international compliance.
I particularly welcome the Government's decision again to go further than the IMO was then able to do. In effect the IMO is now carrying out the agreement which we signed with our group of nations in 1994 and is doing so on a world-wide basis. I welcome the Government's decision to promote and co-operate in a second regional agreement at Stockholm last year. This requires structural modifications to prevent the destabilising effect of water in the cargo and car decks of ro-ro ferries for both new and existing vessels.
We still need to be vigilant. I draw the attention of the noble Viscount to four areas of continuing concern. First, in 1996 there were a number of ro-ro ferry accidents world-wide, most of which involved fire. Fortunately, these accidents did not cause loss of life, but fire at sea is a fearsome thing. Has the noble Viscount considered whether any further safety measures need to be taken in connection with that particular danger? We do not want to have to learn again from another disaster involving major loss of life.
Secondly, there is the question of the training of seamen in UK ships and in those flying the flags of other nations. Are the Government satisfied that present training, for example within the new STCW convention, is sufficiently widespread as to its use and sufficiently
508
focused in its detail to ensure the required level of training in the application of regulations and best practice regarding ro-ro ferries?
Thirdly, I am reasonably content that the Department of Transport list of vessels operating in and out of British ports shows that a majority are very nearly within the new standards, but I hope that the authorities will ensure that the few who should conform this year actually do so.
Fourthly, I am concerned at the large number of ferries operating, for example in the Aegean, which may well carry UK citizens and citizens of the other countries which signed the Stockholm agreement last year, but which do not conform to our standards and may be rather elderly. Are the Government confident they will soon conform at least to SOLAS 90? Is there any measure which UK authorities or travel companies could or should take to warn UK citizens of the risks they may be taking?
I appreciate the work the Government have done to make ro-ro ferries operating in north west Europe progressively safer but we should go further and exert the maximum pressure in favour of safety standards implemented world-wide. That would be in the great tradition of British activity to promote maritime safety world-wide.
6.15 p.m.
Viscount Simon: My Lords, I should declare that I spent some years at sea and took a Master's certificate of competency in the late 1960s. Since then technology has advanced, and I would not make any claim to being up to date. I hope I am not being too technical, but we need to get some matters into perspective.
It is worth pointing out that it appears that standards prevailing at the time of the "Herald of Free Enterprise" disaster embraced less than 25 per cent. of those contained in the new regulations. However, having said that, we were still way ahead of most if not all others at that time with regard to safety. It is also worth mentioning that the "Estonia" had exemption from SOLAS regulations due to a local agreement. That horrific accident could not possibly have happened here.
It should be acknowledged that the A/Amax figures cannot show one ship as being safer than another. All that can be deduced is the probability of damage resulting in residual stability. The static stability calculations are probably similar to those which used to be familiar to me, but the "Herald of Free Enterprise" and the "Estonia" tragedies have indicated the way forward towards further intensive research into dynamic stability through model testing of each vessel and then comparing the figures with the static calculations. A comparison could then be made between theoretical and practical results. This development should be encouraged as it would be a big step forward. Nonetheless, the regulations themselves are a big improvement over those previously in force and I thoroughly approve of them.
Viscount Goschen: My Lords, I thank all noble Lords who have spoken. Certainly, there has been a very

509
wide level of support for the new regulations, and I believe that that view is reflected outside your Lordships' House as well. A huge amount of research has gone into the production of these regulations and there is a very strong feeling that this new regulatory approach deals with the structural issues and with water on the car deck; hence the stability issues that have been examined, particularly by the IMO panel of experts.
Again, the noble Lord, Lord Clinton-Davis, drew our attention to the history behind this issue. It is important to rehearse that in order to put the regulations into perspective and to provide a historical view as to how we have arrived at this situation. Certainly, regulation is based on examining the risks and investigating and identifying practical solutions. The noble Lord talked about being pro-active, and I certainly endorse what he said. Techniques such as formal safety assessment will be of major use in being increasingly pro-active.
The noble Lord questioned what is going on with regard to ferry design. Clearly operators could see the way that regulators were going and that they would be requiring ferries to meet new tough, stringent requirements. The new designs will of course take into account what is put forward in the regulations. Indeed, they will have to so do. There are further innovations in ferry design, not least the change from large conventional ferries to high speed craft of which we are seeing increasing numbers. They bring forward a whole new set of circumstances. Vessels which are travelling much faster bring different considerations with them. As regulators, we are looking extremely carefully at those new areas.
The noble Lord, Lord Clinton-Davis, asked about international action. I described the sequence of events which led up to the brokering of the Stockholm agreement and the links with the IMO there. We were pushing very hard within the IMO for wider international agreement but we were unable to achieve that. We believe that the technical solutions that we have identified are the right way forward and we shall maintain pressure to bring them about.
I was asked about France and Spain. I understand that certainly in the case of France, while it has not signed the agreement to bring in the regulations, it is content to participate in the regulatory approach and we are very pleased about that.
The noble Lord, Lord Clinton-Davis, asked about the Stena Invicta evacuation exercise. Making sure that ferries can be evacuated quickly and safely is a major part of the regulator's role. Such exercises are a major contribution to our understanding of how people behave in an emergency—whether the systems work and so on. Although it took some 65 minutes to complete the evacuation, the exercise provided much information about equipment and the way in which passengers and crew behave. We do not believe that it is right that such an exercise should take place in even more realistic circumstances, for example, in the middle of the Channel. Clearly, we wish to conduct those evacuation exercises in conditions of maximum safety. During the exercise, people were taking it slowly and deliberately because we did not want any injuries.
510
The noble Baroness, Lady Thomas, commended the new inspection regime. That is an important part of the Government's powerful regulatory approach. Having covert inspections must be an important part of that. I was asked about Regulation 7, which deals with exemptions. That allows established operators to bring onto a regular route an additional ferry, particularly during the summer season. Such vessels would have to comply with requirements for a restricted period, perhaps for two or three of the summer months. That would be with regard to the significant wave height of the period. Weather considerations and significant wave heights around our coasts and those of other participants are a major factor in determining what level of standard must be complied with. That is a principle concerned with not just the summer months but with the different sea state conditions around the seas of the countries involved.
The noble Baroness is right to say that one can never guarantee on a particular day what the sea state will be. But a great deal of research has gone into sea states in various months and at various geographical locations around the coasts.
Exemption would require the agreement of both the Secretary of State of the United Kingdom and the equivalent authority for the other port. We do not want any exemptions to these powerful regulations which are not entirely appropriate and which do not take fully into account the safety considerations. Therefore, I can give the noble Baroness a very strong reassurance on that point.
The noble Baroness asked me about the STCW convention. I could say a great deal about that but I would be going beyond the scope of our debate. Suffice it to say that I am pleased with the direction of STCW. It will be a very useful tool for training, certification and watch keeping. I certainly endorse the noble Baroness's remarks about the importance of training.
The noble Baroness asked whether we should stick to the timetable that has been agreed. We shall certainly do that. As the noble Baroness said, we have published a list detailing the ferries and when each ferry would have to comply with the regulations. We shall take a very firm approach indeed as regards the timetable. It is a major part of the credibility of the agreement.
The final point about which the noble Baroness asked me was in relation to ferries overseas. Clearly, many United Kingdom citizens travel not just within Europe, and southern Europe where these regulations do not apply, but also further afield. That is why we are determined to keep up the pressure within the IMO for a wider adoption of higher safety standards for ro-ro ferries.
Finally, I welcome the intervention of the noble Viscount, Lord Simon. He is right to point out the shortcomings in the design of the "Estonia" and the fact that it did not meet SOLAS 90. I thank the noble Viscount for his remarks with regard to the new regulations.

511
The regulations have come about as a result of significant political pressure in the international dimension—the IMO—and within Europe. This is an issue on which we have participated fully with the European Commission. It has supported us and we have supported it in producing the Stockholm agreement. I thank the Commission for its support. We are convinced that this is the right way to go. It deals with the fundamental problem of water on the car deck and we believe that the agreement will lead to major enhancements in the safety of ro-ro ferries. I commend the regulations to the House.
On Question, Motion agreed to.

Protection from Harassment Bill
6.28 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (The Viscount of Oxfuird) in the Chair.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 1:
Before Clause 1, insert the following new clause—
IDENTIFICATION ORDER
(" .—(1) If a complainant has just cause for distress, apprehension or fear from a course of conduct pursued by any other person, the complainant may make a complaint to a justice of the peace and may appear before the justice for that purpose.
(2) The justice may, after hearing the evidence of the complainant, make an identification order which—

(a) requires a constable to take a photograph of the person to whom the identification order relates or to cause such a photograph to be taken; and

(b) requires that person—

(i) to go to a specified police station at a specified time of day or between specified times of day, in order to have his photograph taken, and

(ii) to give particulars of his full name, address, date of birth and occupation to a constable.

(3) If the person to whom the identification order relates fails to comply with an identification order, a constable may arrest him without warrant in order that his photograph may be taken.
(4) The court may on the application of a person to whom an identification order relates—

(a) discharge an identification order; and

(b) order the destruction of any photograph which may have been taken and the deletion of any particulars given under subsection (2)(b)(ii) of this section.").

The noble Lord said: I am sure that Members on all sides of the Committee are determined to seek the best solution for a persistent and serious social problem. In moving the amendment, I shall speak also to the amendments grouped with it which cover a very wide
512
area. I hope that Members of the Committee will forgive me if I take a little time in dealing with so many amendments in my address.
I outlined my broad criticisms of the Bill on Second Reading. But it is necessary, first, for me to look at the provisions of the Bill in more detail. I shall follow that by outlining, perhaps more constructively, an alternative framework which I commend to the Committee in the hope that it provides a better solution to the problem than that contained in the Bill. Unhappily, the Bill was rushed into the legislative programme and received very little proper consideration and very little proper critical appreciation in another place. I must express my gratitude to the noble and learned Lord the Lord Chancellor and to Home Office officials for their consideration and criticisms of my original proposals.
Any scheme must take into account a number of matters. First, that the matters of which complaint is made are likely to be otherwise lawful actions on the part of the offender—that is to say, the stalker. For example, walking along the street, standing outside someone's house, sending gifts through the post, telephoning, pestering, and so on, tend to be lawful actions. If the actions were not lawful, there would be no need for legislation. Aggressive behaviour can be dealt with under the ordinary law of common assault, which is frequently defined as a "putting in fear".
We start off by dealing with lawful actions. Any new law which is introduced to deal with the problem is to be measured not by the intention of the offender but by the effect of his conduct on the victim. Therefore, an offender may be doing something which is entirely lawful, without intending harm or insult or to cause fear or apprehension. Indeed, he may be behaving in what I described on Second Reading as a "Freddy" syndrome—in other words, believing that his advances are welcome to the person whom he is addressing. We must hesitate before criminalising such activity.
However, the prime object of such legislation must be to protect the victim. If there is a balance to be struck, it is a balance which must be weighted towards ensuring that people can live their lives unmolested. Whatever framework is adopted by the legislation, it is highly desirable that it should be accessible and that people should be able to obtain a remedy. It should also be accessible in terms of speed, of simple procedures and of cost.
I turn now to my more detailed criticisms of the Bill. The scheme under the Bill creates four separate offences, each of which is to be pursued in slightly different ways. Harassment in Clause 1 is defined as,
"a course of conduct which amounts to harassment".
That is not much assistance to a potential offender in knowing how to govern his actions. Then, as regards actions, the Bill refers to action,
"which he knows or ought to know amounts to harassment".
Moreover, Clause 1(2) states that he ought to know that it is harassment,
"if a reasonable person in possession of the same information would think the course of conduct amounted to harassment".

513
So, I repeat,
"a reasonable person in possession of the same information",
as the offender—that is to say, the stalker.
Is it harassment if a victim is possessed of a vulnerable personality or is ill, disabled or lives alone or in vulnerable circumstances that the offender does not know about? Is it harassment if he does not have the information that the person concerned has that vulnerability? Nevertheless, his actions are to be judged by a "reasonable person" with his knowledge, according to Clause 1, and not simply by the effect of his conduct upon the victim.
In Clause 1(3) we see that there is reference to the fact that harassment,
"does not apply to a course of conduct if the person who pursued it shows",
among other things, that,
"in the particular circumstances the pursuit of the course of conduct was reasonable".
In other words, there is a statutory defence to harassment if the offender can show that in the particular circumstances,
"the course of conduct was reasonable".
One only has to introduce words like "reasonable"—that is to say, what is reasonable and what is not—to observe that there is a huge area for argument and that court cases will be much prolonged by such discussions.
Clause 2 creates a summary offence of harassment so there is an attempt to criminalise the conduct complained of immediately. If you are guilty of harassment, then you are guilty straightaway; in other words, there is no intermediate stage. You have committed an offence and, although you may have believed that what you were doing was, first, lawful and, secondly, reasonable, objectively it was not.
Clause 3 introduces the civil remedy of injunction and compensation and the provision which orders counselling. Once criminal procedures are brought in, the victim will have to consult a solicitor, apply for legal aid, take time to start proceedings, serve the proceedings and will then have the problem of enforcing them. That is coupled in Clause 3 with the offence of breaching the injunction which is triable both ways. It means that for breaching an injunction which has been found on a civil standard of proof to be appropriate, a criminal offence has been committed.
However, what does not appear in that clause is the fact that the defendant can argue the Section 1(3) statutory defence. The criminal court would presumably be bound by the finding of the civil court made on a lower standard of proof. Therefore, under Clause 3, when the defendant who faces gaol comes to court for breaching an injunction, which has been obtained under the civil standard of proof, he is no longer able to argue that his course of conduct was reasonable. That is a defect which must be addressed, even if the scheme as set out in the Bill is maintained.
Clause 4 creates a further criminal offence; namely, that of,
"putting people in fear of violence",
with the statutory defence of what is or what is not reasonable being resurrected. Under the provisions of Clause 4, the defendant is entitled to argue that the pursuit of his course of conduct was reasonable,
"for the protection of himself or another or for the protection of his or another's property".
So a fresh consideration comes into play.
Clause 5 introduces a restraining order after conviction—that is to say, a conviction that is made in the Crown Court or the magistrates' court under Clauses 2 or 4. In Clause 5 the court will stipulate the prohibited conduct. For example, if someone breaches the restraining order made after conviction he will have committed a further offence triable both ways by doing anything which he was prohibited from doing. Again, it is no longer an issue as to whether or not the offender's course of conduct was reasonable because the court has determined that it was not.
The point that I wish to make is that, even if one looks at the scheme as it appears in the Bill, there are weaknesses and flaws about the way that it is put together. Sometimes there is a statutory defence; sometimes there is not. The mixture of civil and criminal proceedings is unprecedented and will make it difficult for people to obtain remedies.
My amendments propose a simpler scheme altogether, and what I hope the Committee would regard as a constructive use of the civil and criminal jurisdiction of one court, that is to say, the magistrates' court. Subsection (1) of the proposed new clause in Amendment No. 1 refers entirely to the effect upon the complainant of the course of conduct of that other person. Subsection (1) of the proposed new clause states:
"If a complainant has just cause for distress, apprehension or fear from a course of conduct pursued by any other person, the complainant may make a complaint to a justice of the peace and may appear before the justice for that purpose".
There we have not a definition of harassment but a reference simply to the effect upon the victim of the course of conduct that the other person has carried out. Harassment is avoided; arguments as to what is or is not reasonable are avoided. It is left to the good sense of the justice to whom the complaint is made to decide whether the matter before him requires his intervention. There is nothing new in putting such a matter in the hands of a justice of the peace. Historically this has happened over centuries. Historically a justice has determined whether to act in his preventative role whenever he has feared a potential breach of the peace. These provisions and the problem we are concerned with here are not far from the breach of the peace position.
The rest of the proposed new clause in the amendment deals with what I have termed an identification order. There is a considerable problem with stalkers in that their identity is frequently not known. It is not possible for an individual person readily to find out who the person is who is following, pestering or telephoning that individual. There is a need to

515
identify at an early stage who is responsible for the problem and, if necessary, to check that person by getting the police involved right at the beginning. The purpose of the identification order is, first, to identify the stalker; secondly, to involve the police at the beginning of the proceedings—which is not possible with a civil injunction; and, thirdly, to provide a statutory power of arrest of that person. The purpose of that arrest is not to bring the person before the court for the purposes of a criminal charge but for the purposes of taking a photograph and requiring that person to identify himself. This is not a matter of creating a criminal offence. It is a case of a policeman saying to someone, "A complaint has been made against you. You will come with me to the police station. I will take your photograph and get your particulars", and that is the end of it. If the stalker refuses to do that, a police officer is given a statutory power of arrest. That is not unprecedented. For example, if a person fails to take a breathalyser test he can be arrested and taken to a police station for the purposes of obtaining that test. Similarly, as regards an exclusion order relating to football hooligans, there is a similar problem of identifying who a football hooligan is. In that case a person can be arrested, a photograph can be taken and he must provide his identification.
The benefit of an identification order is that a person who has a complaint also has a quick remedy. The order can be made on the evidence of the complainant alone. The stalker can be warned about his conduct. There is protection for him in that he may apply for the order to be discharged if he has been wrongly accused. However, most important of all, at the stage of the identification order—when all that has been required of him is that he has his photograph taken and that he provides particulars of himself—his activities are not criminalised. He is not gaining, or adding to, a criminal record by having an order of this sort made against him. That is a first check to a person who is engaging in activity that causes fear, distress or apprehension to another person.
The second proposed new clause suggests a second step. If the identity of the stalker is known, this is perhaps the first step. The magistrate may proceed in his civil jurisdiction to make a harassment order. That is the second sort of order that these provisions set out. As regards a harassment order, the justice in the ordinary way in answer to a complaint will issue a summons for the person who has been identified, or who is known, to attend before him in a magistrates' court. Having heard the case and having heard evidence on both sides, the justice makes a harassment order as defined in the third proposed new clause. That harassment order can provide that the defendant desists forthwith from such conduct as the court specifies. The harassment order further provides that the defendant can be,
"restrained from any conduct likely to cause distress, apprehension or fear to the complainant; he restrained from entering into or remaining in any area for such period as the court shall specify; be hound by a recognizance to attend such course of counselling".
The latter provision is at the magistrate's discretion. He may order such a course of counselling if he thinks it is appropriate. Finally, the defendant can,
"pay compensation to the complainant".
516
There is nothing in the Bill as drafted which provides for the payment of compensation.
At this stage the magistrate can order that compensation be paid in such amount as he considers to be appropriate, having regard to,
"any evidence and any representations that are made"
to him. The harassment order will have effect,
"for a specified period or until further order".
Again, there is a protection in that the person against whom such an order has been made can—on giving undertakings and upon payment of costs, or whatever seems to be appropriate to the magistrate—go to court and ask for the order to be discharged.
Again, however, even the harassment order does not turn the stalker into a criminal. As I said earlier, he is essentially doing something that in ordinary circumstances would be lawful and which he may not believe to be causing distress. He may believe that his actions are welcome. However, he is given a warning by a harassment order right at the beginning. He is warned that his conduct is unacceptable and that he must desist from it. It is only at that point that he becomes liable to criminal proceedings, not as under Clause 2 of the Bill as drafted where he becomes liable to such proceedings right at the beginning. However, having received a warning through the identification order and through the harassment order, the criminality provision comes into play only if he with sheer determination and intention breaches that harassment order and does something which he is prohibited from doing.
The fourth proposed new clause in the amendments creates a single criminal offence which is similar to the offence created in Clause 5 of the Bill of breach of a restraining order. It is of a similar nature. Under the fourth proposed new clause a criminal offence is occasioned by a defendant doing anything,
"which he is prohibited from doing by a harassment order".
Therefore if a defendant follows any course of conduct which the justice has thought serious enough to include within the harassment order and which the defendant is prohibited from doing, he commits a straightforward criminal offence. That straightforward criminal offence can be dealt with either on summary conviction by imprisonment, or by a fine or conviction on indictment. Instead of having four offences, as the Bill has, these amendments, in the framework which we are advancing, create the single offence of breaching the harassment order. It is at that point that criminality comes into it.
There is provision in the Bill as drafted for a statutory tort, a civil wrong. All that is unnecessary. If the courts want to develop a tort along those lines no doubt the courts can do so. If they wish to leave it to people to sue in the civil courts, let the courts develop a civil wrong of that kind and give damages and remedies within the civil courts. But litigation is so expensive and slow that it is not an answer to the specific problem that we seek to address in the Bill.
I put forward a framework of ready access to a remedy. It is a framework which does not instantly turn a person into a criminal but gives him one or two warnings about his conduct, identifies him, involves the

517
police at an early stage, and enables him to check his conduct before he gets into the criminal courts and finds himself threatened with imprisonment.
Members of the Committee will be glad to hear that the remaining amendments are consequential and I do not propose today to address the Committee at length on them. Today we observe in the press the dreadful tragedy relating to Billie-Jo Jenkins which took place recently in London and which is put down to the possible acts of a stalker. It is a problem which is very real and close to us at this time. I ask Members of the Committee to address the issues with all the concern that I know they will feel. I beg to move.
Lord McIntosh of Haringey: The noble Lord will know that I paid great attention to his serious and lengthy speech at Second Reading. In so far as a non-lawyer could follow the argument, I was impressed enough to withdraw my agreement that the Committee stage should take place in the Moses Room in order that we could have the debate that we now have. I would not wish for the noble Lord's amendments not to be considered seriously and, if necessary, at length.
We saw the amendments for the first time on Thursday. I have been able to take some advice on them. The conclusion I have reached is that they do not meet the needs of the Bill; and they certainly would not meet the needs of the case to which the noble Lord referred in closing—the case in Hastings of Billie-Jo Jenkins.
As Members of the Committee may know, last summer I was involved in a marginal way in the development of the thinking on legislation against stalking when I introduced Janet Anderson's Bill in this House as the Stalking (No 2) Bill and, after discussion with and on the advice of the Lord Chancellor, amended it to follow that part of the Family Law Act which was in turn derived from the Family Homes and Domestic Violence Bill. I took the view that the most important point was to establish the civil law position with an offence of breaching an injunction under civil law. But one had to recognise that that did not deal with the problem of the unidentified stalker. For that reason, I follow the logic in this Bill that in addition to the civil law procedures one has to have a more direct criminal route to deal with unidentified stalkers. In that sense I have followed the logic underlying the Bill, having known its ancestry and having understood why various alternative routes were not practicable.
However, the noble Lord, Lord Thomas of Gresford, now proposes a totally different route. He proposes a route which relies on the potential victim, the alleged victim—we cannot say "the victim" without pre-judging the issue—to take all the steps which appear to be necessary to deal with the stalking that is causing harassment. I do not think that the noble Lord would deny that the amendments produce a completely new Bill which applies to England and Wales. Another new Bill would have to be written for Scotland if the amendments were agreed to. If one follows the logic of the noble Lord's Bill, the victim would have to make repeated court appearances. First, the victim would have to seek the additional identification order and, if required, a summons for harassment order application.
518
Then, if the person to whom the order relates applies to discharge the identification order and to have the photograph destroyed, the victim (I call him or her that for the sake of simplicity) would have to take responsibility for opposing the application. Then he or she would have to appear on the hearing of a summons for a harassment order, then on a subsequent hearing of any application which the defendant might make to discharge the harassment order, and on the subsequent occasion or occasions when the defendant is alleged to have committed any defence under the harassment order. That is an extraordinarily long drawn out and repetitive procedure in which the victim has to take the initiative on all occasions. Even if that were not the case there is still no immediate sanction for the serious, urgent case.
Let us consider the case of Billie-Jo Jenkins to which the noble Lord referred. We now learn from the evening papers that it is likely that she was stalked for some period of time. In order to stop that, and to stop the stalking reaching the extent of murder, as it did tragically over the weekend, Billie-Jo Jenkins and/or her family would have had to go to the courts, first, for an identification order because they did not know and do not know who the person is. Then the police would have pursued that person and demanded that he be arrested and taken to the police station to have his photograph taken. Then there would have to be a further application for a hearing of the summons for the harassment order. By that time Billie-Jo Jenkins is dead. I cannot see that the noble Lord's procedures deal with the urgent need.
The procedure which the noble Lord proposes in the amendments involves repeated use of court time, repeated and unnecessary use of police time, copious record keeping and repeated legal costs. With the best will in the world, I do not believe that that is a route on which the Committee should embark.
Baroness Elles: Perhaps I may respond briefly to the opening statement by the noble Lord, Lord Thomas of Gresford. One specific aspect is of concern to me. In the amendment, subsection (2) of the new clause states:
"The justice may, after hearing the evidence of the complainant, make an identification order".
But that must assume that the complainant knew the identity of the person who had been stalking him or her. I do not see how that can work in practice. If the identity is not known, clearly a justice cannot make an identification order which requires a constable to take a photograph of some particular person. From a practical point of view, I simply do not understand how this proposal would work.
7 p.m.
Earl Russell: As the Committee will know, I have tabled a number of amendments which must fall if these amendments are accepted. I should never be more delighted to see amendments of mine fall than in this case.
I shall not rehearse the concerns I had about the original draft. It would mean repeating my Second Reading speech, and I shall not detain the Committee

519
with that. But it seems to me that my noble friend, with great elegance, has solved all those difficulties. He has dealt with the problem of defining the offence; the offence is now simply a breach of the harassment order. He has dealt with the risk which existed under the original Bill of convicting an innocent person. Should the harassment order be used against somebody who was not a suitable target for it, it is no skin off one's nose to be restrained from doing what one did not want to do anyway. Also, there is the vital point that the order will not in any way count as a criminal record.
I exercised my mind very greatly before Second Reading to try to find a way in which, in dealing with conduct that is not otherwise unlawful, we could sort the innocent sheep from the guilty goats. My noble friend has found that way. He has made them self-selecting. I see very little risk under the amendment of any conviction of the innocent. That is vitally important.
The noble Baroness, Lady Elles, raises a serious difficulty. However, it must be a serious difficulty in the way of proceeding by any route against this conduct. There must always be a problem in identifying a person until you can point at him or her. I imagine that the only way in which that could be done—as must be true under the existing Bill quite as much as under my noble friend's procedure—is that a constable would have to be around with a camera and take a photograph when the person appeared. The victim—or as the noble Lord, Lord McIntosh of Haringey, said, the "alleged" victim—indicates that is the person who is concerning him or her. I do not see how else it could be done. However, I do not see that the difficulty is any worse under my noble friend's procedure than it was under the existing Bill, because the person must be identified whatever procedure is used.
The noble Lord, Lord McIntosh of Haringey, mentioned the Billie-Jo Jenkins case. There, the procedure of the identification order would have been absolutely right. It could well have saved life. She appeared to have been aware for quite some time that someone was following her and could have got a constable or somebody at the school to identify him. It has even been suggested, although I do not put too much weight on suggestions in the press, that such a photograph might have led to the identification of the criminal in several other crimes. So an identification order in this case might have done a great deal.
I take the point made by the noble Lord, Lord McIntosh of Haringey, about the need for the victim to make an appearance. But after all, if the offence is being defined—as under my noble friend's amendment it is, and as I believe it should be—in terms of distress caused to the victim, only the victim (or alleged victim) can say that that distress has been experienced. It is a necessary part of the procedure. I do not see how you can get out of it.
In these cases, and very much more so in rape cases, it is a gross hardship to the victim to have to go through the procedure that is necessary for justice to be done. The problem is that, in justice, one must have regard to the interests of both parties. I do not see how that
520
hardship can be avoided if we are to try to get the matter right. It is a regrettable feature of a serious attempt to get at the truth. All good things have some sad part admixed with them. That that is true of my noble friend's amendment simply means that it is in the real world and is grappling with real problems. I very much hope that the Committee will see fit to agree to it.
The Lord Chancellor: My Lords, there is no doubt that the problem with which the Bill deals is a real problem. That is accepted on all sides. Indeed, references made this evening suggest as much. It is also an urgent problem. There is evidence that these are matters that do take place and this House and another place have a responsibility to deal with them. The Bill presently before your Lordships has been developed from the practice in relation to domestic violence cases whereby an order may be tailored to the precise circumstances of the case and then criminal penalties follow.
The difficulty about that approach is the fundamental one that it may not be known who the offending person is. A great number of different techniques are used in stalking; in many of them the identity of the person doing the stalking is not disclosed.
The noble Lord, Lord Thomas of Gresford, was kind enough to discuss his scheme with me before he invented the order in the first amendment proposed. I noted him as saying in his introduction to the amendment that a constable would approach the person once an identification order was made and say: "A complaint has been made against you. Come along to the police station so that I may have the right to photograph you so that matters can continue". The noble Lord pointed to the fact that that can happen in relation to the breathalyser. A person may not have committed an offence, but, if he declines to take a breathalyser test, he commits an offence in respect of which he may be arrested. It applies also to the football hooligan where there is a suspicion that he committed a crime.
The point is that the complainer in most of these cases will not be able to say who the subject of the complaint is. So there is no question of a constable being able to say, "A complaint has been made against you". The precise point is that he does not know. I have concluded that the only reason criminal procedures are required is in order that that matter should be overcome, because a constable does have power to arrest somebody in respect of a reasonable suspicion that he or she has committed an arrestable offence.
It is fundamental that we get this matter right. So far as I can see, the new clause in Amendment No. 1 does not attempt to deal with it at all. I cannot understand how it is supposed to work in practice. I entirely share the difficulty expressed by my noble friend Lady Elles in that respect. The amendment treats the order made by a magistrate on first application as if, miraculously, it had the effect of identifying the person whom the complainer cannot identify. Where does that sudden light come from to identify the person in question? It does not give the policeman any power of investigation or anything of that sort. The policeman is merely supposed to arrest the person who is the subject of the

521
order, unidentified, and then bring him or her to a police station to be photographed. That is the fundamental point; the amendment simply does not work.
The noble Lord had some criticisms of the Bill. I do not know whether I need to deal with them in any great detail. For example, he said that there is no defence to the criminal charge in respect of a breach of the injunction. So far as I can see, in his criminal offence there is no defence to a breach of the order that the magistrate has made.
The second point in that regard is that the magistrate's order would need to have some sort of jurisdiction. The nature of that jurisdiction is completely undefined. That is one of the problems that exists in relation to the present power to bind over, one of the reasons why the Law Commission suggested in their report that it should be abandoned and why it is under attack in Strasbourg. If a person refuses to be bound over, he or she is subject to penalty; if there is no definition of what it is that a person is bound over to do, there is a serious erosion of civil rights. The proposal is imaginative but I believe that it is not one that would work effectively.
The noble Lord seeks to keep all harassment proceedings in one court but at the expense of having damages claims in the magistrates' court, whereas almost universally in consultation it was thought that that matter should not be in the magistrates' court.
The reason why the Government's Bill contains parallel jurisdictions is that it is built on existing practice but deals with the point that a victim would not necessarily know the source of the course of conduct in question. The idea that just cause is itself sufficient without further definition to avoid legal argument would, I believe, be belied by the noble Lord's experience. I do not believe that that phrase is any more immune from the ingenuity of our colleagues in the legal profession than is the phrase that we have used in the present Bill.
There are no specific defences in the noble Lord's proposals for the good reason that there is no specific basis on which the order can be made. That is the inherently unjust and difficult foundation on which his proposals rest.
Those concerned with the matter of stalking point out that harassment can occur without the victim ever seeing the person carrying out the behaviour and having no opportunity to see the person. Sometimes the person eventually discloses himself or herself but it may go on for some time without that happening. I can, if necessary, give a number of examples of that but it may be that your Lordships would prefer to accept it without my doing so.
If the noble Lord's proposals were proceeded with, the police would require to be given powers which they do not have at present in order to deal with this, powers which rest on either evidence of, or reasonable suspicion of, the commission of a criminal offence. Here the police are invoked for the purpose of giving help to one party in what is essentially a civil dispute. It is the fundamental point that I have made which is my main difficulty with what the noble Lord is proposing, subject
522
to the point that it is highly doubtful whether the bind-over provisions on which his submissions are founded will survive. It is difficult to say, but they are under substantial attack at present and the Law Commission took the view that they should be taken out of our law.
That is as much as I can offer your Lordships at the moment except to say that this is a completely new scheme. We consulted on a scheme. It would have been a little easier for me to ascertain the practical outworking of the proposals if I had had an opportunity, for example, to consult with the police authorities and similar bodies about how this proposal might work. If we are to reach a solution to the problem now, I believe that the proposals outlined in the Bill are the way forward—without prejudice, of course, to consideration of other amendments put forward by noble Lords.
I would invite the noble Lord, in the light of what I have said, to reconsider his proposals.
7.15 p.m.
Lord Thomas of Gresford: Perhaps I may deal with some of the points that have been raised; first with those raised by the noble Lord, Lord McIntosh of Haringey.
There is no difference between the number of attendances required by a complainant under my proposals and under the proposals contained in the Bill. In the Bill as drafted it is necessary for a victim to make a complaint. The complaint would be made to the police because the complainant, the victim, would be saying to the police that a criminal offence of harassment had been committed and she would therefore attend at a police station to outline her case. Under my proposals the only difference is that she attends before a justice—not that she is faced by the stalker for an identification order to be made but that she attends personally and explains to the justice what it is that is concerning her. If there were then to be criminal proceedings under Clause 2 of the Bill, she would presumably be the main witness for the prosecution and would therefore inevitably be drawn into those criminal proceedings.
If she were to pursue an injunction as a civil remedy, the civil proceedings would have to be served upon the person who was causing the problem and under the Bill there would then be an attendance before a judge for an injunction to be granted. If the offence was committed under Clause 3(4), the offender having committed the offence of breaching the injunction, the lady would be back in court to prove that.
The position is similar with Clauses 4 and 5. Clause 5, which deals with the restraining order made after the first set of proceedings, envisages a further offence and a further attendance of the victim before the court.
I very much regret the fact that people have to go to court to give evidence in sensitive cases which may cause them a great deal of distress. My point is that no more attendances are required before a court in the presence of a stalker under the clauses which I have drafted than under the clauses set out in the Bill.
The Lord Chancellor: Before the noble Lord passes from that point, I think it is fairly plain in Clause 5 of

523
the Bill that the restraining order is made as part of the decision consequent on the proceedings. It is a not a separate attendance in order to obtain a restraining order, as I understood the noble Lord to suggest a moment ago.
Lord Thomas of Gresford: I am most grateful to the noble and learned Lord the Lord Chancellor. However, I was not thinking of the making of the restraining order but the offence under Clause 5(5) which deals with the case where the defendant does something which he is prohibited from doing by an order under Clause 5. Further proceedings are envisaged for a breach of the restraining order—not the making of a restraining order—at a subsequent time. My point is that that is one further attendance by the victim in order to say that the restraining order has been breached, similar to the position with the breach of the harassment order which I have suggested in my amendments.
I now move to the very difficult problem of identification. It does not make any difference what procedure is adopted; there will always be a problem in identifying the stalker. The scheme adopted by the Bill is that, if it is not known who the person is, a policeman will arrest a suspect. One way or the other he will find out who is the suspect, presumably by involving the victim. The victim has to provide details of the suspect. I fail to see what difference there is between a complaint to the police of a criminal offence under Clause 2 of the Bill so that the police arrest a suspect and a complaint to a justice whereby the best particulars of the person are provided to the police who effect an arrest or execute an identification order.
I take the point made by my noble friend Lord Russell. If one had an identification order where a stalker had been photographed and forced to give his particulars then in some of the cases one knows about, particularly that to which the noble Lord, Lord McIntosh, referred, there would be a photograph of the suspect on police files before anything worse happened. Further, the making of an identification order, the taking of a photograph and the identification of the individual would instantly put a check on his activities without necessarily turning him into a criminal.
Clause 2 of the Bill creates the offence of harassment, which means that the first step that is taken—at that stage one does not know the identity of the person—is to criminalise the activity. It may be lawful. If it is not lawful he may be arrested for other reasons. He may be standing on a street corner, posting something through a letterbox, sending gifts or making telephone calls. There is nothing illegal about that. But under the Bill that would be turned into an offence and he would be turned into a criminal with a criminal record. I am trying to push back the criminalisation of that conduct by the making of an identification or harassment order and checking that person's activity at an early stage.
I turn to the point made by the noble and learned Lord the Lord Chancellor about the problems in Strasbourg in relation to bind-overs. As I understand the report of the Law Commission and the cases that are going to Strasbourg, the bind-over provisions are unacceptable because the person who is bound over to keep the peace
524
or to be of good behaviour does not know what keeping the peace or being of good behaviour entails. The "Strasbourg" problem is that a person is subject to sanctions, which may be criminal sanctions which could send him to prison, although he is simply told that he must be of good behaviour and keep the peace. The distinction between that and what I propose is that a harassment order sets out with particularity what he cannot do. The justice may have a broad complaint from a lady about the way she is being pursued. The justice may look at that complaint and decide that it is too trivial for him to make it the subject of a harassment order, which would be subject to criminal sanctions, but that the lady's second, fourth, fifth and seventh complaints are sufficiently serious for him to make such an order and to say to the offender that he will not do that. That is very different from binding someone over to keep the peace or to be of good behaviour in a broad, generalised way that does not give him any real guidance as to what he should do in the future. The noble and learned Lord the Lord Chancellor is aware that my proposals derive from the historic preventive role of the justice in using the bind-over procedures. But I hope that they develop from that and give the potential offender a guide that tells him exactly what he can do.
The final matter to which I refer is the question of compensation. As my noble friend Lord Meston mentioned to me a moment ago, the tort of harassment is developing. I do not say that it is fully developed but it is developing within the civil courts. In the county court and the High Court damages can be obtained in that way but only by the expenditure of time and money. The noble Lord, Lord McIntosh, was concerned about delay in obtaining remedies. I believe that a magistrates' court that deals with all these matters within the same jurisdiction, and with far greater speed and efficiency than would be obtained within the civil system as it is at present, is the best body to determine the appropriate amount of compensation to award to a person who is the subject of this activity. The alternative is that a lady may give evidence in a magistrates' court under Clause 2 of the Bill and substantiate a criminal offence, but she will not get anything from the magistrates. No compensation will be paid at the end of the day. However, under my proposals she will receive some recompense for her distress and the problems she has suffered.
I will reflect on the various matters that your Lordships have put before me. I hope to return to this matter at a later stage of this Bill. Subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 4 not moved.]
Clause 1 [Prohibition of harassment]:
Earl Russell Earl Russell moved Amendment No. 5:
Page 1, leave out lines 8 and 9 and insert—
("(b) which he knows lacks, or has no good cause to believe enjoys, the consent of the other person.").
The noble Earl said: When listening to my noble friend speaking of the difficulty of understanding the meaning of being bound over to keep the peace, I was

525
reminded of the bizarre story of a man who bit a piece out of another man's nose and was bound over to keep the peace.
I rise to move Amendment No. 5 with great regret. I hope that we have not heard the last of my noble friend's attempts to amend the Bill. I believe that there is room for a good deal of further discussion on that. It is with regret that I rise to move the forlorn hope. Like my noble friend, I was concerned about the risks involved in criminalising conduct which otherwise, taken piecemeal, might be innocent. That is why I have never been happy about the refusal to define the offence in this Bill. If an offence is not defined how can one prove oneself to be innocent of it?
In moving Amendment No. 5 I should like to speak also to Amendments Nos. 16 to 18 and 28. They are inter-connected amendments and all end at the same point. Amendment No. 5 seeks to replace what I have always found to be the least practical words in the Bill. Clause 1(1)(b) refers to a course of conduct that a person knows or ought to know amounts to harassment of the other. If we do nothing else with this Bill we should get rid of the words "ought to know". They are thoroughly unsatisfactory and have a hortatory quality that is more appropriate to the pulpit than the law.
I have thought a great deal about the problem of defining the offence. To my mind, the essence of the offence is that it is conduct that does not enjoy consent, and that is why it is wrong. The problem with a simple definition in terms of consent is that the offender regularly believes that he enjoys consent when he does not. Amendment No. 5 seeks to prohibit a course of conduct which the person,
"knows lacks, or has no good cause to believe enjoys, the consent of the other person".
If he thinks that he enjoyed consent, he will have to say so. In many of the cases about which we have heard, it would be a prosecuting counsel's dream to cross-examine the man on why he believed that he enjoyed consent. If he has any good reason for believing it, he can say so.
Amendments Nos. 16 to 18 take the same principles into Clause 4, where there is an immediate fear of violence. I have been worried throughout about the use of the "reasonable man" test in the Bill. It seems to me that in sexual matters in particular, standards of what is "reasonable" vary so incredibly widely these days that they are rather difficult to use. In Clause 4, I attempt to offer a double test:
"either the conduct was such as to cause a reasonable person to fear violence would be used against him; or … he wilfully continued the course of conduct knowing the other did not consent to it".
The "or" deals with cases such as that of somebody who had previously been a victim of rape. Such people might well fear in cases where other people might not fear. The mere fact that the person does not consent to the conduct, if that is made sufficiently clear to the offending person, ought in civilised society to be a sufficient reason to desist. I hope that that might be something practical for the courts to attempt.
Amendment No. 28 adds to the list of lawful statutory defences the argument:
"that the other consented to the conduct in question".
Again, that defence may be advanced in cases in which it does not belong. But in those cases prosecuting counsel could easily deal with it by cross-examination. It will apply to cases in which there was some good reason to believe that there was consent and where perhaps the charge has been brought as a result of a sudden tiff, as too sadly often happens.
I hope that these amendments might bring some precision to a Bill which I believe needs it, if justice is to be done. I beg to move.
7.30 p.m.
Lord McIntosh of Haringey: As always in these matters, I speak with the utmost diffidence. However, it does not seem to me that the noble Earl's speech relates to his amendment. His speech was concerned with the difficulty of defining the concept or the word "harassment", and yet his amendment leaves the word "harassment" in Clause 1(1)(a) of the Bill and simply adds an alternative phrase for subsection (1)(b).
It is entirely plausible and reasonable—I should not use the word "reasonable" as it is a lawyer's word and has a specific meaning which I probably do not understand—to suggest that lack of consent is or could be a constituent part of harassment. He still leaves the word "harassment" in the Bill and simply adds lack of consent as one consideration in a definition. I had always understood that an extensive definition is difficult because, if something is not in a definition then what is excluded is affected by it. There is a Latin phrase to that effect. But in this case, the noble Earl makes only the first step toward a definition, while leaving the word "harassment" in the Bill. I do not feel that that is an appropriate way to approach the matter.
I was convinced last summer by the noble and learned Lord the Lord Chancellor when he said that molestation—at that time it was the concept of molestation—benefited from not being defined as it was originally in Janet Anderson's Bill because of the risk that genuinely molesting behaviour would be allowed as it was excluded from the list. I fear that the same argument applies even more strongly to the noble Earl's current amendment.
Earl Russell: The noble Lord has confused two different types of amendment. His honourable friend Mrs. Anderson attempted to define by means of a list. That clearly created a risk of exclusion. The noble and learned Lord and I are at one on that point. There was a real risk that things not in that list might get excluded.
I merely attempt to give guidance on how the word "harassment"—to which I made no objection at any stage in my speech—might be understood. The effect is clarificatory and not exclusive. The noble Lord, Lord McIntosh, has confused two totally different types and categories of definition. He is awfully hard to satisfy today.
The Lord Chancellor: The noble Earl's amendment seeks to delete Clause 1(1)(b) and substitute other

527
words. But he has left in Clause 1(2). So there is a subsection left hanging in the air, which I know will be appreciated.
I took the noble Earl's point about lack of consent at Second Reading. Lack of consent may have some importance, but when making a criminal offence some kind of intention has to be associated with it, in order that it satisfies the ordinary criterion. An absolute offence in this area would be going rather too far. Therefore, I believe that some kind of intention is a reasonable constituent of a criminal offence.
Let us forget that Clause 1(2) hangs altogether loose at the moment and take what the noble Earl proposes. The result is that it does not matter whether the defendant ought to appreciate that his conduct will cause alarm or distress—it does not matter whether or not he appreciates that. If it has not been consented to, that is sufficient. The amendment may be intended to restrict or make the ambit clearer, but the result is to create a wider class of offence than is sought by the Bill. I am not sure whether that is the noble Earl's intention.
If anything about intention is taken away, one has an absolute offence type of category and that enlarges the offence. The matter of consent would just play into that situation. Therefore, with the greatest respect, after having considered the matter as carefully as I could—I was attracted to the idea at Second Reading that it might be worth pursuing a little further—I have concluded that if there is to be a criminal offence, some form of intention is required. What is in the Bill is the best so far that we have been able to propose in that connection. It is quite reasonably precise and I believe it provides a basis for dealing with these matters. That applies to the other amendments of the same character also.
Lord Thomas of Gresford: The noble and learned Lord the Lord Chancellor said that intention is an aspect of Clause 1(1)(b) and subsection (2). But I should have thought that it ought to be read as an objective test. What a person ought to know amounts to harassment, defined as what another, reasonable person in possession of the same information would think amounted to harassment of the other, suggests not an intention on the part of the person who is guilty of the conduct complained of but a "reasonable man" test—an objective test—applied to what he ought to know. It seems to me that that intention is missing from that.
There is another point. The vulnerability of the person concerned is a matter of some importance. In a manslaughter charge, it makes no difference that you did not know that a person had an eggshell skull if you strike him one blow to the head and he drops dead. He happened to be a vulnerable person but it is still manslaughter. Although there was no intention to kill the person concerned, he had that kind of vulnerable personality.
Lord McIntosh of Haringey: It is not murder.
Lord Thomas of Gresford: It is not murder either, of course, because it lacks intention. When one is seeking to deal with a problem that arises from the
528
vulnerability of the victim, one is not so much concerned with intention as with the conduct itself which causes distress, and so on. That conduct itself must be intentional but not that the person thinks or believes or knows that it is harassment that he is committing at the time.
The Lord Chancellor: The second point about the vulnerability of the victim is quite important. My view is that this clause, as drafted, and the Bill as drafted, do take account of particular qualities or characteristics or the vulnerability of the person stalked, the victim, if that is known to the person who is doing the stalking: the alleged offender. That is the point. If, for example, you know that the person being stalked has a particular susceptibility or vulnerability and take advantage of that, that is important in characterising the offence. The objective test applies to that in the sense that if the matter is put to the test of the reasonable person with the same knowledge—that is to say, for example, knowing that the victim has a particular vulnerability, that is the test to be applied. When I talk of intention, of course, in the language of this Bill I am talking of it on the basis of the objective intention as signified in Clause 1(2) where the reasonable man's test is put upon what you assume the person's intention was. So the vulnerability point is dealt with, if I might say so, rather well by Clause 1(2).
Earl Russell: I thank the noble and learned Lord for that reply. I am extremely interested in the points that he has made. It is, I hope, possible that further discussion might lead to progress on this matter. Like my noble friend Lord Thomas of Gresford, I have not been entirely clear on the role of intention in this Bill. Like the noble and learned Lord, I prefer to see a test of intention; I prefer to see a requirement for mens rea.
The way my mind was working, I was regarding the continued proceeding in the absence of consent—indeed, it would appear the wilful indifference to consent—as being evidence of an intention to harass.
I will say again to the noble Lord, Lord McIntosh, that I have no objection to the words "to harass". I just want to know how we shall be finding people to have done it. That is all I am concerned about.
If we can arrive at some form of words between us which would allow the intention to be made clear without this clumsy use of "ought to know", there might perhaps in the future be some hope of getting somewhere. Perhaps the noble and learned Lord has a comment he would like to make before I take a final decision. If not, I beg leave to withdraw the amendment, but in the hope that it is not forever.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
7.45 p.m.
Lord Meston Lord Meston moved Amendment No. 7:
Page 1, line 16, after ("pursued") insert ("solely").
The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 8, 19 and 21 which are identical.
These amendments seek to add the word "solely" to the defences in Clauses 1(3) and 4(3) so that they should now provide that the person who wishes to rely upon those defences must show that his course of conduct was pursued solely for the purpose of preventing or detecting crime or solely under any enactment or rule of law or to comply with a statutory condition or requirement.
I am concerned to remove any possibility of a loophole for those with mixed motives in their course of conduct or for those who may have lawful justification for what they do up to a point but then go too far. I am also concerned about those who may stalk or harass on the pretext of detecting crime. In an article recently in the Sunday Telegraph on 26th January of this year there was reference to one stalker who actually formed his own detective agency to create the illusion of legitimacy.
My noble friend Lord Thomas of Gresford spoke of the room for argument that this Bill, as presently drafted, provides. I hope that these amendments go some way to reducing the scope for argument by a defendant who is truly guilty of harassment. I therefore hope that the amendments add a useful emphasis to the wording of the Bill. I beg to move.
Lord McIntosh of Haringey: I am putting my head into the noose again because this is an amateur comment; but I have to say that I think that the noble Lord, Lord Meston, has a point. I can well imagine circumstances where there is a mixture of motives, there is a mixture of intentions and some part of the intentions and, indeed, the behaviour, could genuinely be described as being for the purpose of preventing or detecting crime; but a very substantial amount could be outside that definition. It would be a great shame if the Bill did not allow those mixed motive activities to be covered by the penalties and by the provisions of the Bill.
The Lord Chancellor: My understanding is that in order for the defence to operate, the defence would have to show that the course of conduct, so far as was objectionable, was pursued for the purpose of preventing or detecting crime.
I have seen the article to which the noble Lord referred. Indeed, I think there was a rather elaborate scheme developed, according to that, for the purpose of stalking people. But I would venture to suggest to the Committee that to insert the word "solely", as proposed, makes it very difficult to secure the defence at all because it puts an impediment on it which would require the defendant to prove that there was no other intention or purpose whatsoever. In a sensible way of looking at this, the court would have to consider the course of conduct in question and in so far as it amounts to harassment see whether that was for the purpose of preventing or detecting crime. If it had a dual purpose, in my submission, in so far as it was shown to amount to harassment as a result of that secondary purpose, this defence would not operate.
The ultimate test will be whether the conduct complained of was pursued for the purpose of preventing or detecting crime. For example, one could
530
have someone in a particular place regularly because that was his or her beat assignment and yet there may be an element of choice or discretion in where they were at a particular time. If the result of that choice or discretion being exercised was to amount to harassment of someone, then the court would be astute to find, or certainly it would be open for the court to decide as a matter of practical reality, the reason for the conduct in question.
Lord Meston: I am grateful to the noble Lord, Lord McIntosh, for his initial reaction to this amendment and to the noble and learned Lord the Lord Chancellor for his response. It was not my intention in any way to impede a proper defence. The court will clearly have to look at the conduct of the defendant as a whole. The intention of this amendment was to make it easier to separate the different aspects of the conduct complained of, particularly where there are what I have described as mixed motives. However, this is not a matter to be debated at length at this hour. I should like to consider the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 9:
Page 1, line 21, at end insert (", or
() that by reason of severe mental illness he is unable to make a judgment on the matter.").
The noble Lord said: In moving Amendment No. 9, I wish to speak also to Amendments Nos. 22 and 27, which make the same point in Clause 4 and, for Scotland, in Clause 8. Amendments Nos. 9 and 22 were proposed to me by the National Schizophrenia Fellowship, because it was worried that some schizophrenia sufferers could harass others or cause them to fear violence without having any idea what they were doing. I added Amendment No. 27 after checking with NSF (Scotland) that it agreed that that should be done.
Before putting down the amendments, because I was going to be out of London at Second Reading—I am sorry that I was not present—I wrote to my noble friend Lady Blatch to ask for her view of them. My noble friend replied that she understood the reasons for seeking to exempt severely mentally ill people from the scope of the offences and the tort created in the Bill. My noble friend went on to explain how the Government already make provision to safeguard mentally disordered persons from inappropriate prosecution under the Bill or indeed under any other relevant Acts. My noble friend drew to my attention Home Office Circular 66/90 which gives guidance to the courts on this matter. In subsequently discussing the subject verbally with my noble friend, I suggested to her that, as the circular is seven years old, there might well be cases where it had been shown to need amendment to achieve its aims. The Minister said that, if that was so, she would be very happy to consider amending the circular. Accordingly, I have asked the National Schizophrenia Fellowship to

531
advise me on the workings of Home Office Circular 66/90. At short notice, it has provided me with four examples. I shall briefly describe three of them.
A man who had a diagnosis of schizophrenia was arrested on suspicion of criminal damage and burglary. He was homeless, having lost his accommodation because of harassment by neighbours who set fire to his flat. He tried to break into a property which had been his home at an earlier date, apparently not realising that it was now occupied by others. He was remanded to a prison in spite of the fact that a social worker provided full details of his mental health problems to the magistrates. The young man died following the use of restraint. At the inquest, the coroner expressed his concern about the fact that the man had been in prison and had fallen through every available net.
Home Office Circular 66 advises magistrates, at paragraph 4(v) that,
"if his mental state or other factors, such as homelessness, give rise to difficulties in releasing him on bail, arrangements should be made with the health, probation and social services to ensure that appropriate support can be provided such as admission to hospital where his mental condition warrants it, or to a hostel, if the managers agree".
We understand that, in spite of the guidance, magistrates felt that prison was appropriate. That case is an example of the circular not giving firm enough advice on such a point.
In another case—it is ongoing—a young woman of 19 has been on remand in prison for six months after setting fire to her mattress in a psychiatric unit. Because of attempts to hang herself, she has spent considerable periods in a strip cell while she awaits trial on an arson charge. She is receiving neuroleptic medication and the prison doctor has told her family that she should be in a secure unit. Other doctors have diagnosed personality disorder. Circular 66—this is important—does not appear to address the complex issues raised by this case at all.
In a third case a man appeared before a magistrates' court charged with affray, carrying an offensive weapon and setting fire to his car. The pre-sentence probation report had advised ordering a psychiatric report on the grounds that the defendant appeared to be suffering from a mental disorder. In the event the stipendiary magistrate decided that such a report was not needed and sentenced him to two months' imprisonment. Later he attacked children and a teacher with a machete. Serious injuries were inflicted and he is now awaiting sentence in a high security mental hospital.
Home Office Circular 66 draws the attention of magistrates to their powers to arrange for a medical report while an accused person, who appears to be mentally disordered, is on bail, for medical treatment as a condition of bail, and for a remand to hospital—if this seems necessary rather than bail—to obtain a medical report on his mental state. The circular does not suggest that advice to the court from a probation officer, which is what happened in this case, recommending ordering a psychiatric report, should be very carefully considered by the magistrates before being set aside. In view of the sufferings of the victims in this case, and the consequences for the man of not receiving psychiatric
532
treatment at an earlier stage, it would seem that the circular needs review and revision to cover such circumstances.
In conclusion, I can see that my amendments, in seeking to remove severely mentally ill people wholly from the effects of the Bill, are probably going too far. I can see that victims of harassment need to be assured that they can call upon the services of the police and the courts to help protect them from those who cause harassment, whatever the background to the case. However, I hope that my hastily prepared examples—I emphasise that because I feel sure that the Home Office, perhaps even aided by the Department of Health, if they can aid each other, could produce many more examples—of the need for Home Office Circular 66/90 to be brought thoroughly up-to-date to provide the necessary protection for the unfortunate people who are truly not responsible for their actions will encourage my noble and learned friend the Lord Chancellor to give a firm undertaking that a thorough analysis of, and any necessary amendment to, that circular in the light of experience of the past seven years and the possible effects of the Bill will be carried out and brought into effect sooner rather than later. I beg to move.
Lord McIntosh of Haringey: In his admirable speech the noble Lord has provided the answer to his initial argument. However, he is to be commended for bringing it forward in the way that he did. He is quite right in saying that the amendments would go too far and would remove the protection from victims of stalking from people who had severe mental illness. As he rightly said, that cannot be what he intends. The issue is very much wider than stalking. The issue covers people committing all kinds of crime in conditions of mental illness and mental disorder. I am sure the noble Lord is right in saying that we have to bring the guidance we give to the police and to the courts up-to-date and make sure it is adhered to.
The Lord Chancellor: I am grateful to my noble friend Lord Mottistone for indicating to me in advance what he had in mind in putting down these amendments. As a result, I am able to say that my noble friend Lady Blatch has agreed to look into the cases my noble friend brought to her attention by way of example and to reflect on whether amendment to the guidance is required and, in the light of her consideration of that, to make a decision which she will then communicate to my noble friend when that is completed. There is also a civil aspect to this matter. We looked into some of this in connection with domestic violence. The most important aspect is in relation to the criminal law and to the code of guidance which the Home Secretary has issued. I am sure that if my noble friend Lady Blatch needs any help from the Department of Health it will be readily forthcoming. In these matters the Government act as one.
8 p.m.
Lord Mottistone: I am grateful to the noble Lord, Lord McIntosh, for his support and to my noble and learned friend the Lord Chancellor for his assurances on

533
behalf of our noble friend Lady Blatch. The key matter is that harassment must be solved in this kind of way along with the other matters which have been mentioned. It is very difficult to avoid treating wrongly people who do things which they do not know are wicked. These orders are helpful up to a point. However, various other things are happening and I hope that the situation is getting better as we go along. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Offence of harassment]:
Lord Meston Lord Meston moved Amendment No. 10:
Page 1, line 24, after ("liable") insert ("—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or both, or
(b)").
The noble Lord said: As the Committee knows, the Bill, as drafted, provides two levels of primary criminal offence. Under Clause 2 a person who pursues a course of conduct amounting to harassment commits an offence punishable only on summary conviction. Under Clause 4 a person whose course of conduct causes the victim to fear on at least two occasions that violence will be used commits a more serious criminal offence punishable either after summary conviction or on indictment. In the latter case the Bill stipulates a maximum of five years' imprisonment.
The amendment seeks to allow for the possibility of trial on indictment for the lesser offence as well, with a maximum sentence of two years' imprisonment. The cases which have been reported in the press at least suggest that even where there is not an actual act or threat of violence, the powers of sentencing available in the magistrates' court on summary conviction may not be enough. There can be a lengthy, sustained campaign of harassment by an obsessive individual, causing the victim enormous anguish and suffering but nevertheless falling short of the fear of violence on two occasions which is required for the more serious offence under Clause 4. In such circumstances a victim could be driven out of his or her mind with worry and distress and caused considerable panic without actually suffering a fear of violence, without there being a threat of violence or with the threat of violence only having been made on one occasion rather than twice as required under Clause 4.
Conversely, and resisting the temptation to go into the merits of jury trial despite what is in the newspapers today, the allegations in these cases can be made by jilted or spurned partners. It may be that the accused should have the right to jury trial in such a case. For those reasons I hope that the added flexibility of disposal which is proposed in the amendment will find favour with the Committee. I beg to move.
The Lord Chancellor: The theory behind the Bill on this aspect is very much in line with what the noble Lord, Lord Thomas of Gresford, was saying in his introduction of his scheme. The first offence, which this
534
amendment deals with, is intended to be of a fairly low order so that basically the police powers of investigation and arrest for that purpose are made available. If the case becomes a serious one, then of course one gets to the higher level.
The noble Lord will recall that not only is there Clause 4. There is also Clause 5 and breach of the restraining order. The point is that the conduct will be pretty precisely defined by the restraining order—that is the way in which we approach the matter—and there will then be a heavier penalty on the lines proposed. The purpose of keeping the first offence summary is to restrict the matter to as low a key as possible, subject to the requirement that the criminal law has to be involved but making sure that if conduct is prescribed as being harassment, then a severe penalty will follow and also, as regards Clause 4, where violence is involved.
In the kind of case which the noble Lord, Lord Meston, envisaged, we anticipate a restraining order being made on a Clause 2 offence and then, if that restraining order is breached, the full force of Clause 5 will come into effect, even if there was no violence in the sense of Clause 4.
Lord Meston: I am grateful that the noble and learned Lord prayed in aid the arguments of my noble friend Lord Thomas of Gresford. I am happy that he did so. I am a little concerned about the adequacy of the penalties to deal even with the lower level of offence particularly when concerned with persistent harassment which is not quite serious enough to amount to a Clause 4 offence. While I understand the argument that the criminal court, whether dealing with a Clause 2 or a Clause 4 offence, may make a restraining order for which there are further penalties if a breach occurs, it may well be that there will be cases in which, with hindsight, the courts regret that they were not able to act more robustly at an earlier stage.
This is a matter which is not to be pressed at this stage, but I shall reconsider it. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Civil remedy]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 11:
Page 2, line 11, leave out subsection (3).
The noble and learned Lord said: I indicated at Second Reading that I would invite the Committee to remove subsection (3), which would add to the powers of the civil court a power to order a defendant to undergo a course of counselling. What we are all seeking to do in the Bill is to provide the best possible protection for the unfortunate victims of harassment. I would be the first to recognise that some of the people who indulge in this sort of behaviour must be disturbed and might well benefit from outside help—guidance, treatment or counselling—just as someone who falsely accuses another person of harassment might well benefit from similar help. The debates we have had will have served a useful purpose in drawing the attention of

535
people involved, either personally or as advisers in these situations, to the help which may be available.
But it is not, and cannot be, the role of the civil court which has found against a defendant, on the balance of probabilities, in effect to impose a sentence on him in addition to whatever order for damages and/or injunction the plaintiff is entitled to. There is no justification for it and there is no machinery for it.
For these reasons, which I have already tried to explain, we have found it necessary to tackle this difficult problem by having both a civil remedy and criminal sanctions. The two jurisdictions remain distinct although we have tried to make it possible to stay in one altogether if one is sufficiently satisfied with what can be achieved under it. It would be wrong to start giving civil courts power to impose sentences on unsuccessful civil litigants. As we have seen, I believe that it would soon prove wholly unworkable if we were to try. Amendment No. 15 in the name of the noble Lord, Lord Meston, grouped with this amendment, duly draws attention to the difficulties involved.
It is only fair to the noble Lord, Lord McIntosh of Haringey, that I say that in the discussions we had in the summer, to which he referred when he modified the Bill to be only a civil Bill, the Bill had a clause in it of this character. At the time I did not object to the clause. I had looked over the whole Bill and had not seen any particular reason to object. He is well entitled to say that I should have thought of this objection earlier. However, having considered the matter as carefully as I can and in the light of the fact that we have criminal proceedings in the Bill as well, I hope that the Committee will feel able to accept this amendment and to remove subsection (3) from the clause. I beg to move.
Lord McIntosh of Haringey: I am grateful to the Lord Chancellor for what he has just said and shall not chide him for not having made earlier the observations that he has just made.
As the Committee knows, subsection (3) was inserted on a vote by my right honourable and honourable friends in another place. I do not think that this is an issue of great principle or one which should delay the passage of the Bill. Indeed, in a letter to Jack Straw, the Home Secretary acknowledged that the motives of the Opposition in tabling what was then Amendment No. 13 were,
"the best possible … in an attempt to ensure that stalkers who need counselling receive it".
On reflection, I accept that the provision of the criminal offence, in which punishment could be accompanied or replaced by counselling, deals with the major point. I also accept the Home Secretary's point that civil courts could take into account any voluntary undertakings to undergo counselling given by a defendant and that we do not need subsection (3) to achieve that. Although I acknowledge
536
that this is a difficult issue, on balance I accept the assurances which the Lord Chancellor has given and I shall not oppose the amendment.
Lord Meston: My reaction was that subsection (3) had some value although it also contained defects in that it was hard to see how it would be operated by the courts. It was for that reason that I endeavoured to draw attention to those defects in Amendment No. 15. However, in view of what has been said by both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord McIntosh, I shall not press Amendment No. 15 or seek to oppose what is now proposed—namely, the deletion of subsection (3).
Baroness Elles: In view of what has been said by the noble Lord, Lord McIntosh, can my noble and learned friend confirm that, where there is a necessity for counselling, the person concerned will be able to have that counselling—obviously, not under subsection (3) which my noble and learned friend proposes to delete, but under some other provision and under the direction of the police or a judge? Where counselling is required, will the person concerned be able to receive the necessary assistance?
The Lord Chancellor: Subsection (3) provided a power to order a person to undergo counselling. As the noble Lord, Lord McIntosh, said, the Home Secretary made it clear in his letter to Jack Straw that it would be open to the courts to take account of any undertaking to undergo counselling which a party to the litigation may give. Where it is a matter of criminal sanction, the general powers of the criminal court would be available. Conditional orders, for example, could involve a person having counselling and would be within the power of the court to impose if that was thought desirable. My noble friend can be assured that the way in which the matter would proceed would allow counselling to take place, where appropriate.
Lord McIntosh of Haringey: I should like to be clear that I understand this. If, in a civil case, the magistrates think that counselling is the appropriate solution to the problem, would they then proceed to make it a criminal case so as to be able to order counselling?
The Lord Chancellor: I would think that unlikely. The practice in such a case, as in domestic violence cases, would be that if the court were satisfied that counselling was the solution it would decline to make the order but would look to the person in question to agree that he or she should undergo counselling. In practice, the court would say, "We shall not make an order if you are willing to undergo counselling". If there was some real difficulty with that, the criminal course is open. In practice, however, I would expect that if the case started as a civil case, and if the advisers of the person in question thought that counselling would help—or if the county court thought that counselling was the way forward—the court could

537
indicate that to the person in question with the sort of persuasion that a court can operate in such circumstances.
On Question, amendment agreed to.
8.15 p.m.
Lord Meston Lord Meston moved Amendment No. 12:
Page 2, line 15, at end insert—
("() An injunction granted at any stage of proceedings under this section may be expressed so as to refer to harassment in general, to particular acts of harassment, or to both, and may be expressed so as to restrain any harassment whether by the defendant himself or by the defendant instructing or encouraging any other person.").
The noble Lord said: In moving Amendment No. 12, I should like to speak also to Amendments Nos. 13, 14, 23 and 24. I start with Amendments Nos. 12 and 13, which are designed to bring the Bill into line with the drafting of the Family Law Act 1996, which relates to non-molestation orders. The Bill avoids any inclusive definition of "harassment", recognising that it may take many forms. Section 42(6) of the Family Law Act likewise avoids definition and provides that a non-molestation order may be expressed so as to refer to molestation in general or to particular acts of molestation or to both. I suggest that a similar provision would be of use in this Bill so that, as the noble and learned Lord said earlier, the court is clearly aware that it can tailor the order to the requirements of each particular case.
Secondly, the two amendments provide that the injunction or order may be expressed so as to restrain harassment whether by the defendant or by his instructing or encouraging any other person. It imports the wording now commonly used in non-molestation injunctions. It may be that in the county courts, which are already familiar with that jurisdiction, those words would be used anyway. That may not be so automatic in the High Court or the Crown Court where such orders may be made under the provisions of this Bill.
Again, in arguing for the need for such a provision, I am reinforced by the article to which I have already referred in the Sunday Telegraph of 26th January which reported that stalkers are turning to detective agencies and are hiring private eyes to stay one step ahead of their victims' efforts to shake them off. Experts are now describing that as "stalking by proxy".
Amendment No. 13 emphasises that the injunction can be made at any stage of the proceedings and can be made for a specific period or until further order. That adopts Section 42(7) of the Family Law Act and is echoed by Clause 5(3) of this Bill.
Amendment No. 40 provides that in granting an injunction the court can attach a power of arrest in similar terms to Section 47 of the Family Law Act. At Second Reading, I raised, as did other noble Lords, the unusual interrelationship of criminal and civil sanctions for breach and the fear that some victims could fall between two stools, being unable to get legal aid to pursue a quick application for committal for contempt in the civil field and at the same time being unable to
538
get assistance for the prosecution of a criminal offence, each responsible authority relying upon the availability of the remedy in the other field. In response to that, the noble and learned Lord pointed out that a breach was an arrestable offence under the Bill. However, the anxiety remains—in my mind, at least—about what will happen in practice. The remaining uncertainty about which alternative remedy should be available to the victim makes how it will work in practice unclear, at least to me.
Amendment No. 14, in following the Family Law Act providing for a power of arrest, should provide some answer to that problem. The power of arrest provisions in the domestic violence injunction field works well and has indeed been extended under the 1996 Act. When there has been a breach of an injunction with a power of arrest attached, surely it must be better that the first port of call is not the criminal court; in many cases it is plainly much better that the person concerned should be brought back quickly before the same court which imposed the injunction, and quite probably before the same judge. The delay in bringing criminal proceedings, or indeed in bringing formal committal proceedings, may be dangerous and is certainly undesirable. That is not to say that the judge, in dealing with the matter on the power of arrest, cannot act flexibly. Indeed, he may have the ability to adjourn it for other proceedings to be brought. The power of arrest procedure is well tried and tested, and I suggest again that it should be imported into this Bill.
Finally, I refer to Amendment No. 24, which seeks to amend Clause 5. The amendment provides that before making any order under Clause 5—that is a restraining order made by the criminal court, including any order to vary or discharge such an order—the court shall so far as practicable be informed by the prosecution as to the wishes, if any, of the victim of the offence and of any other person mentioned or to be mentioned in the order as to the scope and duration of the order. Of course, in criminal proceedings the victim is not directly a party to the proceedings, unlike the civil arena; but the victim may have specific requirements as to the ambit of the proposed restraining order which are not properly appreciated by the court or indeed by the prosecution. When there is an application to vary, the victim may have precise requirements, such as a new residential address to be covered under the ambit of the order. It is surely right that the court is properly informed of such requirements and of such wishes so that, as the noble and learned Lord the Lord Chancellor said, the order can be properly tailored to the needs of the case. I beg to move.
The Lord Chancellor: Amendment No. 12 is fashioned on the basis of the Family Law Act provisions. The position is that of course the court has an inherent jurisdiction to grant an injunction as a remedy in an action for tort, and the court may (and frequently does) express its order in terms which will restrain a person from a general course of conduct while at the same time specifying particular examples of acts which he must not carry out. The court does not need a special statutory power, as proposed in the first limb of

539
this amendment, to achieve that. I would be reluctant to include any such special provision which did not add to the general powers which already exist, and which was not intended to demonstrate that the powers exercisable in the particular context should be anything less. I do not believe that it is suggested that the existing powers are too wide.
However, the point I make about the Family Law Act is that the background to the equivalent provision in the Family Law Act was somewhat different. The new legislation was replacing an existing, wholly statutory remedy, not the remedy for tort which is here in question, and the Law Commission (whose recommendations were being implemented) had stressed the need to ensure that the dual capability was preserved in the new legislation setting out the statutory power. We were giving the courts a statutory power and if they were to use it in more than one way, then it was right that the statutory power should be expressed in that way; whereas in this case we are giving the court the statutory tort that is created; the court then has the ordinary powers that it would have in respect of such a tort in addition to other powers that are given. So the ordinary flexibility that the court has in relation to injunctions would apply here.
The second limb of the amendment is not, so far as I am aware, based on domestic violence legislation, but draws attention to the possibility that the defendant against whom the injunction is granted may seek to involve some other person who is not a party to the proceedings and cannot therefore be a subject of the injunctive order. This is using others. The defendant may avoid doing the prohibited act personally, but he may get someone else to do it for him. This is an avoidance well recognised and provided against in the very common wording of injunctions whereby a person is restrained from acting not only personally but also "by" his agents. Although the other person would not of course have been named in the court's order, he would nevertheless be in contempt of court if he knew of the order and aided and abetted the defendant in its breach. Of course, the defendant would also be in breach if he did it not personally but by an agent.
The second limb of the amendment could be taken as a confirmation of the court's power to make an order restraining the defendant from acting either personally or by using an agent. But it could be taken as meaning something more, so that the defendant could be expressly restrained from encouraging some other person to join in, regardless of whether that other person was willing to do so. I doubt therefore whether it is necessary for this part of the amendment either, in view of the basis on which this is now put.
I now turn to Amendment No. 13. It may well be that in a particular case of harassment there is some special reason why it appears necessary to restrain the defendant from particular conduct for a specified period only, perhaps until some other anticipated event has occurred. But that is also true of other cases where injunctions are sought, and the powers of the court are sufficiently wide to cater for such situations. Again, the difference with the Family Law Act is that the Act was providing the actual powers. There was no other basis for them, and
540
therefore the powers required to be specified. Where we are basing ourselves on an injunction the ordinary powers that the court has for making an injunction would apply.
Turning to Amendment No. 14, we are certainly wholly in sympathy with the reasons of the noble Lord, Lord Meston, for seeking to give the court jurisdiction to attach the power of arrest to injunctions granted in certain circumstances, indeed to raise a presumption in favour of attaching such power in those circumstances. Courts granting injunctions have no inherent jurisdiction to attach a power of arrest, and can therefore only do so when a statutory jurisdiction has been conferred. That is the case in the Family Law Act. But in this situation we have a power of arrest because the breach of an order is itself an offence and therefore it amounts to an arrestable offence by virtue of subsections (4) and (7) of Clause 3 and the provisions of the Police and Criminal Evidence Act 1984. It is therefore not necessary for the court to consider whether the particular plaintiff or charge would be adequately protected without making special provision to ensure that the defendant can be arrested if he is in breach of the order which has been made against him. The statutory provisions here have that effect automatically.
Those are the main matters that the noble Lord has raised, and I hope that in the light of my responses, he may see that what he is proposing is accomplished sufficiently under the Bill.
Lord Meston: Before I respond, I wonder whether the noble and learned Lord has any views on Amendment No. 24.
The Lord Chancellor: I should have mentioned that. I am sorry. The present position, as the noble Lord said, is that the victim in a criminal matter has no locus himself or herself. We have set up some pilot schemes at present in some areas of the country which allow the prosecution to include the views of victims in the case papers for consideration in relation to sentences.
It would be unwise to anticipate the outcome of those or set up a specific provision for this offence only. But when the results of the pilot schemes are available, we can consider them and consider how to make a general provision for victims. Although this case is important, it is not the only one in which victims' views might be important, particularly in relation to the effect on them of the conduct in question, which is the primary matter here. One would not ask for the victims' views about how the court should exercise its powers except, I suppose, by drawing attention to the effects which various courses of conduct might have on the victims.
I hope that the principle behind Amendment No. 24 will be overtaken by a more general provision in due course when the results of the pilot schemes are available, if the pilot schemes tend to show that that is an exercise which will have beneficial effects sufficient to justify the work involved in doing that.
8.30 p.m.
Lord Meston: Perhaps I may deal with the last point first. I understand and appreciate what the noble and learned Lord says about a pilot scheme and an increased sensitivity to the views of the victims of crime generally. But surely this Bill is unique, or if it is not it is almost unique, in providing not only that the court shall punish in appropriate ways the criminal who is convicted under Clause 5, but in providing also that there may be a restraining order to protect the victim. I believe that that is unknown in other areas of the criminal law. It is for that reason that I suggest that there is a need in this Bill for specific provision to ensure that the precise requirements of the victim and anybody else relevant to the restraining order should be brought before the court by a proper mechanism rather than in the hope that the police or the prosecution have sufficient up-to-date information as to the wishes of the victim.
I suggest that that is reinforced by the perfectly proper provision in the Bill which allows the person who is the subject of the restraining order to apply for a variation which, again, may well have implications for the victim. There should be a proper channel formally written into the Bill for the victim's wishes to be put before the court. It is for that reason, first and foremost, that I stress the importance of Amendment No. 24.
I revert now to Amendment No. 12. I feel a little disappointment in the noble and learned Lord's response. I understand his point about the inherent jurisdiction of the court, but surely this Bill is designed to provide a new code which deals comprehensively with the problem of harassment. If at all possible, the Bill, on the face of it, should set out as succinctly as possible all the available rights and remedies without leaving the lawyers involved, or the court or those who do not have the advantage of legal representation to work out what powers the inherent jurisdiction may provide in addition to what is set out in the Bill. It seems to me that it would look rather odd that this Bill is not written in the same terms as the Family Law Act.
As regards the injunction restraining the defendant, whether by himself or instructing or encouraging any other person, the noble and learned Lord is right to say that that was conventionally covered by an injunction which referred to the defendant's agents. The phraseology which I have included in the amendment is the more up-to-date, user-friendly jargon in the modern form of injunction. The use of servants and agents, in the time-honoured phrase, is now no longer fashionable, and properly so.
Again, I note what the noble and learned Lord said about the power of arrest. It is not strictly necessary for there to be a power of arrest attached to a civil injunction if the breach is a criminal offence. The purpose of the amendment was not to add something which was not otherwise there. But I suggest that whatever the necessity of the situation, it is desirable that, if at all possible, the victim should have a quick remedy and the same civil court which dealt with the matter should have the ability to deal with any breach almost on the spot, preferably, as I said, before the same judge.
542
I shall have to think about how to proceed further with the amendments. But in the meantime, I beg leave to withdraw Amendment No. 12.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 to 15 not moved.]
Clause 3, as amended, agreed to.
Clause 4 [Putting people in fear of violence]: [Amendments Nos. 16 to 19 not moved.]
Earl Russell Earl Russell moved Amendment No. 20:
Page 2, line 43, after second ("of') insert ("lawfully").
The noble Earl said: In moving this amendment, I shall speak also to Amendment No. 26. With the leave and the indulgence of the Committee, I should like to speak also to Amendment No. 6 which I did not move in its proper place because I did not find my place in my papers after speaking to the previous amendment.
These three amendments deal with the statutory defence that the course of conduct was pursued for the purpose of preventing or detecting crime. They seek to make the phrase read, "for the purpose of lawfully preventing or detecting crime".
When I tabled the amendments, I had not heard the example of my noble friend Lord Meston about stalkers turning themselves into detective agencies. But that case fairly exactly illustrates what I was concerned about in this amendment. The clause is drafted for the purpose of defending law enforcement officers; and I have no objection to that whatever. I presume that that would also defend the householder acting lawfully in self-defence against a burglar.
But with vigilante activity, we can get into other activity which we should not like to be used as a lawful defence. I give just one example of what I have in mind: the man who says, "But I was trying to get proof that she was living on immoral earnings". As a defence for a voyeur, I should not find that satisfactory. I beg to move.
The Lord Chancellor: My general answer on Amendments Nos. 6 and 20 is that if it is not lawful it would be subject to being stopped in any event. Therefore, only if it is a lawful activity could it be an effective defence in the circumstances of the present Bill.
The real difficulty, as has been said so often, is that but for the effect on the victim, many of the activities covered by this Bill would be quite lawful. But if the activity is unlawful in any event, there is no need to use this Bill at all. I hope that the noble Earl will feel able to accept that point of view in respect of the amendments.
Earl Russell: The noble and learned Lord is clearly right. There is still a problem, although I believe that the noble and learned Lord is aware of roughly the area where it resides. It is in the type of activity, such as that of a voyeur, which might otherwise be lawful save for the indignation, dismay or distress which it provokes. There is still an undistributed middle. If either of us can,

543
before the next stage of the Bill's proceedings, think of a way of distributing it, it might be worth trying. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 and 22 not moved.]
Clause 4 agreed to.
Clause 5 [Restraining orders]:
[Amendments Nos. 23 and 24 not moved.]
Clause 5 agreed to.
Clause 6 agreed to.
Clause 7 [Interpretation of this group of sections]: [Amendment No. 25 not moved.]
Clause 7 agreed to.
Clause 8 [Harassment]:[Amendments Nos. 26 to 28 not moved.]
Lord Meston Lord Meston moved Amendment No. 29:
Page 5, line 6. leave out from ("appropriate") to end of line 7.
The noble Lord said: This is a probing amendment which I fear is presumptuous because it involves that part of the Bill which deals with Scottish law. However, it raises the question in my mind as to why it is that the application to vary in Clause 8(7) is limited as set out in the Bill. The Bill provides that the court may revoke an order or vary it,
"as it considers appropriate, but not so as to increase the period for which the order is to run".
Surely it is desirable that, where appropriate, an order can be varied without the need to start further proceedings, especially if the court has imposed, as is sometimes thought necessary at the outset, only a limited term order.
At the expiry of the term, the victim may remain apprehensive and may reasonably wish the order to be continued. The restraining order provision in the English part of the Bill provides in Clause 5(4) that the order may,
"be varied or discharged by a further order",
which I take to mean that, where appropriate, the court could extend the term of the order for a further determinate or indeterminate period. As a general rule and with appropriate safeguards, I suggest that the court should have the ability—be it in England or in Scotland—to extend a fixed term order without the need to start fresh proceedings. I beg to move.
The Lord Chancellor: The principle behind the provision which is the subject of the amendment is that,
544
in a criminal context, when the order is part of the disposal of a criminal case it ought not to be extended further. But of course the court has wide powers in respect of the order that it makes in the first instance. The same argument does not appear to me to apply in the civil context. If the noble Lord will allow me, I should like to consider whether there is something that we should do to make the civil remedy more flexible. If I may, I should like to encourage the noble Lord, with his knowledge of the law of England, to look critically at provisions affecting the law of Scotland. Indeed, it is often quite productive, and here is just one example.
Lord Meston: I am grateful to the noble and learned Lord. I said that it was a presumptuous amendment, but I thought that it was unfair for the Bill to go through without any attention whatever being paid to the clause dealing with Scotland, notwithstanding the presence of at least one very distinguished Scottish lawyer in the Chamber. I am grateful to the noble and learned Lord for the indication that he will look further at the matter. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clauses 9 to 11 agreed to.
Clause 12 [National security, etc.]:
[Amendment No. 30 not moved.]
Clause 12 agreed to.
Clause 13 [Corresponding provision for Northern Ireland]:
[Amendment No. 31 not moved.]
Clause 13 agreed to.
Clause 14 [Extent]:
[Amendment No. 32 not moved.]
Clause 14 agreed to.
Clause 15 [Commencement]:
[Amendments Nos. 33 and 34 not moved.]
Clause 15 agreed to.
Remaining clause agreed to.
House resumed: Bill reported with an amendment.

Sea Fisheries (Shellfish) (Amendment) Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at thirteen minutes before nine o'clock.