Lords Sitting of 15 December 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ely.
Lord Trevor Lord Trevor—Sat first in Parliament after the death of his father.

United Nations: Funding
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
By what measures they intend to pursue reform of the United Nations and an early resolution to its funding crisis.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, as the Prime Minister told the General Assembly in September, all parts of the United Nations need proper accountability to go with secure funding, better management and more co-ordination in their activities. We continue to support the United Nations Secretary-General's package of reforms aimed at making the United Nations more modern and effective, and to press the European Union's proposals to put United Nations finances on a sound and equitable basis.
Lord Renton of Mount Harry: My Lords, I thank the noble Baroness for that Answer. However, I find its contents extremely disappointing. I remind the Minister that the words of my Question that the Government should,
"pursue reform of the United Nations and an early resolution to its funding crisis",
are precisely lifted from the gracious Speech. What measures do the Government have in mind to achieve that? Will they be able to persuade the United States to pay up any part of the 1.6 billion dollar deficit that the United States owes the United Nations? Surely, unless the Government come forward now with constructive proposals, they will be guilty of circulating diplomatic hot air—rhetoric, but no substance.
Baroness Symons of Vernham Dean: My Lords, I believe that Her Majesty's Government have been extremely assiduous in pressing the question. It was raised with the United States and other parties to the G8 meeting which took place earlier this year in Birmingham. It was raised three times under our presidency of the EU and most recently by the Austrian Foreign Minister as president of the European Union in a letter to Mrs. Albright on 17th November 1998 on behalf of the EU. That letter urgently pressed on the United States the necessity of paying its arrears. The European Union is also taking an active role in discussions in New York on tougher
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disincentives for member states with outstanding dues. Her Majesty's Government are pursuing the matter at all levels, both bilaterally—as I have had occasion to tell the House before—and through other means available to us such as the G8 and the EU.
Lord Taylor of Blackburn: My Lords, can my noble friend say how long the United States has been in arrears with payments to the United Nations? What steps did the previous government take to try to remedy the default on payments?
Baroness Symons of Vernham Dean: My Lords, my noble friend is right. This is hardly a new problem. I cannot give the exact date of when the problem began, but it has existed for a considerable period. As I have told the House previously, the United States has not moved so far into arrears to attract the sanctions under Article 19. That would mean that the United States had moved two years into arrears. However, the United States is now responsible for 60 per cent. of the total arrears. The matter is urgent. It is being pressed by Her Majesty's Government wherever we can and through other organisations as well.
Lord Steel of Aikwood: My Lords, in view of the considerable personal warmth that exists between the head of our Government and the head of the United States Government, would it not be productive, in addition to the official channels, to make sure that the next time there is a cosy dinner this item ought to be on the agenda between two of the courses?
Baroness Symons of Vernham Dean: My Lords, as I was able to tell the House a few moments ago, the matter was raised at the G8 earlier this year. It was also raised by my right honourable friend the Prime Minister in a speech he made to the General Assembly in September this year.
Lord Peyton of Yeovil: My Lords, will the noble Baroness bear in mind that it is not just a question—
Lord Judd: My Lords—
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I believe it is the turn of this side. I am sure there will be plenty of time for the noble Lord, Lord Peyton, in a moment.
Lord Judd: My Lords, I certainly wish to hear the noble Lord, Lord Peyton. Does my noble friend agree that in the context of the Government's commitment to an effective United Nations—for which adequate financing is obviously essential—it is disturbing to read what the Secretary-General said in his recent speech to the National Assembly in France? He is reported as having said that he was concerned by the trend towards regional action without UN authorisation which seemed to indicate a return to spheres of influence rather than

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shared global responsibility. He suggested that all such action should be authorised by the Security Council. Can the Government reassure us on the point?
Baroness Symons of Vernham Dean: My Lords, my right honourable friend the Prime Minister made the UK's position perfectly clear when he spoke in September of this year at the General Assembly. He urged proper accountability upon the United Nations, secure funding, better management and more effective co-ordination. I believe that proper accountability and effective co-ordination adequately reflect Her Majesty's Government's position on the whole of the United Nations acting co-operatively together.
Lord Peyton of Yeovil: My Lords, will the Minister bear in mind that the Question is far too important simply to clock up speakers and letters sent. It is disgraceful and very disappointing that 50 years and more after the last war the United Nations is still in the palsied state that it is. If another letter is to go to the American Government, perhaps they can be reminded of the enthusiasm with which their elders and betters established the United Nations so many years ago.
Baroness Symons of Vernham Dean: My Lords, I agree with the noble Lord. It is an extraordinarily serious position. The European Union tried to address it in the proposals put forward in 1996 which comprehended a more stringent application of the Article 19 provisions for those falling into arrears. It is important to remember that the problem is not solely focused upon the United States. Because the United States is such a large contributor to the United Nations, in overall terms the United States owes a huge amount of money—indeed, more than 60 per cent. of the arrears. But the fact is that currently 140 states are in areas with their United Nations dues. It is a serious problem across the board which has to be addressed. Her Majesty's Government are doing their best to do so.
Lord Jenkins of Putney: My Lords, while reform of the United Nations is being discussed, is the relationship between the General Assembly and the Security Council under consideration? Is the Minister aware, for example, that the two main parties are in total opposition to each other on the elimination of nuclear weapons? The General Assembly is heartily in favour of the elimination of nuclear weapons; the Security Council, with this Government's support, is not in favour, despite the manifesto commitment.
Baroness Symons of Vernham Dean: My Lords, we believe that the General Assembly should be more focused in its agenda. I do not believe that that will necessarily be an easy task, but it is something the Government would like to see. We should also like to see enlargement of the permanent and non-permanent parts of the Security Council. We support permanent
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seats for developing countries in Asia, Latin America, the Caribbean and Africa as well as for Germany and Japan.
Baroness Rawlings: My Lords, what allowances, if any, will the Government make for the views of the new United States Congress? What indications, if any, do they have that the new Congress may take a different view?
Baroness Symons of Vernham Dean: My Lords, that is an important question in the debate on how to take forward the issue with the United States. Unfortunately, we have not seen sufficient commitment from either part of the American Parliament, if I may put it that way. It is too early to say whether the new Congress will make any real difference. However, we believe it important that Her Majesty's Government, through every means possible, such as the G8 and acting with our colleagues in the European Union, encourage the new Congress, together with the Administration, to work together more constructively in order to make real progress on this important issue.

Prisoners: Educational Provision
2.46 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
Whether they are satisfied with the provision of education in prisons and young offender institutions.
Lord Williams of Mostyn: My Lords, the Government have made education a top priority. Educating prisoners is a key element of the Prison Service's plans for developing constructive and positive regimes which make a cost-effective contribution to the reduction of reoffending. We want to see a Prison Service which gives prisoners the skills needed to turn them away from crime and to open up employment opportunities. That is why we have provided £226 million over the next three years to deliver our manifesto commitment of constructive regimes, including education.
Lord Quirk: My Lords, I am grateful to the Minister for that encouraging reply. Given the crucial importance of remedying this educational deficit if prisoners are to have a hope of a job when they get out, will the Government redouble their efforts, perhaps through such schemes as educational targets for staff and educational incentives for inmates? Will the Government do still more to facilitate the work of the voluntary sector, noting the superb work done at the Feltham Young Offenders Institution by the Society of Voluntary Associates (SOVA) who tell me that given more resources they would happily move out into the less transient populations of mainstream prisons where of course the needs are just as great?
Lord Williams of Mostyn: My Lords, what the noble Lord says is absolutely right. I met representatives of SOVA in the past few weeks. They do admirable work,

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as do their colleagues in the voluntary sector. The present story is lamentable. Of all prisoners, 67 per cent. are below or at level one in numeracy, which is very modest indeed; and of young offenders and juveniles—the noble Lord specifically refers to them in the Question—82.4 per cent. do not get above level one.
The noble Lord makes a good point, I suggest, about targets. We intend that, by the year 2001, 50 per cent. of prisoners with six months or more to serve in prison should achieve level two competence in basic and key skills. So we have targets in mind; and we intend to deliver.
The Earl of Longford: My Lords, does the Minister agree that one of the saddest things about the previous government was that they reduced the total amount of money that went to education in prisons? Can he give some clearer evidence than he has given so far today that that trend is being reversed? To be told that the amount is going to new regimes is one thing, but to be told that the money is going to prisons is another.
Lord Williams of Mostyn: My Lords, the extra amount that is going to prisons as a result of the money obtained by the Home Secretary from the CSR settlement is £660 million. The figure that I gave for constructive regimes was £226 million and rather more than £10 million in the first year for the enhancement of educational provision.
The Earl of Gowrie: My Lords, is the noble Lord aware that the Department for Culture, Media and Sport, through the Arts Council of England, subsidises writers to work in prisons and that that can have a stimulating effect on education generally? Will he encourage this trend?
Lord Williams of Mostyn: My Lords, I was aware of that, significantly, as a result of a specific Question put to me by the noble Baroness, Lady Sharpies. Following that question I did a little more research and found that the writers in residence schemes worked well. I was able, I hope to her pleasure, to provide her with some further material relating to the success of such schemes.
Lord Laming: My Lords, does the Minister agree that recent reports have highlighted the high level of illiteracy among young offenders? Does he agree that at least custody provides an opportunity to give them intensive remedial teaching to equip them to live successfully within the community?
Lord Williams of Mostyn: My Lords, it can provide those opportunities, but one must reflect on the fact that in this country, notionally, children are educated compulsorily at public expense from five to 16. It is a rather depressing thought that children who have been so expensively educated still end up in the prison or young offender system with such low levels of numeracy and literacy. I believe that the work of
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Mr. Blunkett and the Department for Education to improve the educational standards of young people is of great importance.
Lord Gisborough: My Lords, in view of the fact that 50 per cent. of people in prisons reoffend compared with 12 per cent. in military prisons, will the Minister see whether any lessons can be learnt from that?
Lord Williams of Mostyn: My Lords, I do not believe that there are any general lessons to be learnt from the military prison system for the vastly disparate 66,000-plus who are in the rest of the regime. In particular, I do not believe that any helpful lessons can be learned for women prisoners in the prison estate.
Lord Quirk: My Lords, will the Minister be good enough to pursue what he said from the Dispatch Box on 10th December, at col. 1026 of the Official Report, concerning the importance of co-ordinating the work of the Home Office and that of Mr. Blunkett in raising standards in prisons just as in the schools?
Lord Williams of Mostyn: My Lords, I did say that at the Dispatch Box. My noble friend Lady Blackstone and I had an immediate meeting to see how we might co-ordinate our dual responsibilities. We intend to set ourselves particular targets and have already arranged to meet not later than six months from now to see how far we have got. These are not idle offers.
Lord Cope of Berkeley: My Lords, can the Minister tell the House whether part of the strain on the education system in prison arises from the fact that there are more 15 and 16 year-olds in prison now than before in spite of the previous government's building plans for local authority secure accommodation and the fuss that the Labour Party made about that matter when in opposition?
Lord Williams of Mostyn: My Lords, we did make a fuss because it was a disgrace—and it was a right fuss to make. There was a modest increase in local authority secure accommodation but it was overtaken by the number of young persons who were being sentenced to custody. We ended up with a net deficit. But this is not the occasion on which to say who did what over the past 18 years. We have to get on with the task and that is what we are doing.
Baroness Masham of Ilton: My Lords, does the Minister agree that there is a high percentage of dyslexic people in prisons and young offender institutions and that there is a need for specially trained remedial teachers?
Lord Williams of Mostyn: My Lords, I do. I confirm that specific directions are to be sent out to all prison governors by the end of February of next year so that every prisoner on an induction course when entering a custodial establishment will be specifically screened for dyslexia.

Grammar Schools: Ballots and Standards
2.54 p.m.
Baroness Young Baroness Young asked Her Majesty's Government:
Whether the balloting system for grammar schools is consistent with their aim of raising standards in schools.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, increasing parental involvement in education is an important aspect of our drive to raise standards. Enabling parents to make a choice about future admissions arrangements to grammar schools is part of that.
Baroness Young: My Lords, is the noble Baroness satisfied that the very complex—some would say unfair—system of balloting which allows votes for those who are automatically eligible and for those who are eligible only if registered, which includes parents of children under compulsory school age who may well leave the area before their children reach the age of 11, is fair? Does she agree that that will cause not only great concern to parents of children in the grammar schools but also disruption to pupils and staff? Can she justify that as "raising standards"?
Baroness Blackstone: My Lords, the Government have heard the criticisms by the Conservative Party about the arrangements for ballots but consider that these are sensible arrangements that allow those parents who are most likely to be affected by a change in the admissions policies of grammar schools first to sign a petition and then to vote. As to standards and disruption, I am absolutely clear that teachers in grammar schools are more professional than the Question implies. I have no hesitation in saying that they will be able to cope perfectly well with a ballot inviting parents to express their views about admissions policies and that the excellent education that they are providing for many pupils in such schools will continue.
Lord Pilkington of Oxenford: My Lords, I speak as president of the Grammar School Association. In spite of the admiration that she shows for grammar school teachers, does the noble Baroness consider that a policy that subjects schools to five-yearly ballots is governed more by ideology than the interests of education? I refer to the Answer given to my noble friend about the improvement in educational standards. Is it not ideology rather than education that governs the policies that the noble Baroness advocates?
Baroness Blackstone: My Lords, I utterly refute that. This is all about providing an opportunity for parents to exercise choice about the form of secondary education that they prefer. That seems to me to be democratic and utterly appropriate in the circumstances. Moreover, as I said only last week, it is democratic since the electorate
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was consulted on this matter following an election manifesto commitment to consult parents on their views about admission policies.
Baroness Platt of Writtle: My Lords, the noble Baroness said last week that a school would have 20 months in which to prepare for going comprehensive. Does she agree that the minimum size of a good comprehensive school is at least five, and preferably six or eight, forms of entry? How does the noble Baroness envisage that within 20 months a building programme can be planned, the allocation of resources made and the architectural plans arranged to give those non-selective children the education that they deserve in buildings that are ready to admit them?
Baroness Blackstone: My Lords, I do not accept the assumptions that lie behind the question of the noble Baroness. The average grammar school in this country has about 800 pupils. Some 40 per cent. of comprehensive schools have fewer than 800 pupils, so many comprehensive schools operate perfectly effectively with school rolls that are lower than the average for grammar schools. There need be no reorganisation of the kind to which the noble Baroness refers.
Lord Tope: My Lords, will the Minister explain why parents of key stage 1 pupils in a primary school will be eligible to take part in a ballot while parents of key stage 1 children in an infant school will not? Is that fair?
Baroness Blackstone: My Lords, we have gone through the issue of what is an appropriate group of parents to vote on ballots on countless different occasions, including when the Bill was going through this House. The Government believe that they have devised the most sensible and fair system of balloting which could possibly be achieved. We have been criticised by my noble friend Lord Hattersley on the one hand and by the noble Lord, Lord Tope, and the noble Baroness, Lady Blatch, on the other. I suspect that that means that we must have got it about right.
Baroness Blatch: My Lords, the average size of grammar schools is not 800 pupils. I hope that the noble Baroness will look again at those figures. In fact, a large majority of grammar schools have only four forms of entry which, as my noble friend said, means that they are not sufficiently large to be viable as comprehensive schools. Will the noble Baroness tell the House how standards will be raised if those fine schools are removed?
Baroness Blackstone: My Lords, I must contradict the noble Baroness. First, I have in front of me the figures which are provided by statisticians in my department which show that the average grammar school has 800 pupils on its roll. Secondly, I do not believe for a moment that standards will fall. Those schools are not to be abolished; they will continue.

Christie Hospital, Manchester: Funding
3 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they consider that present funding for the Christie cancer hospital in Manchester is sufficient to meet the present demand of people requiring cancer treatment at that hospital.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, in May 1998 an additional £500,000 was allocated to meet the increasing demand for radiotherapy services at the Christie Hospital. Discussions are now taking place with the local health authorities on the level and funding of chemotherapy services at the hospital. A review of specialist cancer services across the north-west region is nearing completion and will make recommendations about the level of service provision at all three of the regional cancer centres.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that detailed reply. She stated that this is the second time this year that the Christie Hospital has had to reduce vitally needed services because of the financial situation. The Government have already declared that cancer is the primary illness to be tackled. Is there not, therefore, something wrong in view of the fact that those services are being cut? Should not the financing arrangements of specialist hospitals such as the Christie Hospital and others be made directly through the department itself and not left to the whims and quirks of the local area health authority, which may act quite differently?
Baroness Hayman: My Lords, I recognise that my noble friend is an extremely effective advocate of the services of the Christie Hospital. The whole House will recognise the quality of those services. It is not a matter of services being cut. Rather it is an issue of more and more patients being referred to cancer units in the north-west, despite the fact that a new unit has been opened recently at Preston.
However, I agree with my noble friend that it is unsatisfactory to have hand-to-mouth funding and to be dealing with those issues as and when they arise. That is why I hope that the regional survey of cancer services will allow for more coherent planning in the future. The Christie Hospital has a national and international profile for research and development, which is funded separately. But given that the vast majority of patients come from the north-west region, as is the situation with other specialist centres in the country, current funding arrangements can be made appropriately. We must just make sure that they are.
Lord Clement-Jones: My Lords, the Christie Hospital is clearly a major cancer centre which is currently lacking resources. Is the Minister aware of the estimate given by Professor Karol Sikora of the World
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Health Organisation and the Hammersmith Hospital that more than £100 million is needed to implement in full the 1994 Calman-Hine proposals which were designed to ensure that there were high quality cancer services across the country? Does the Minister agree with that estimate?
Baroness Hayman: My Lords, I certainly agree that we need to build on the implementation of the Calman-Hine framework for improving cancer services. The Government are committed to that work. As part of that implementation we have been publishing evidence-based guidance on common cancer sites. Guidance has already been published on breast, colorectal and lung cancer. We shall see guidance relating to gynaecological cancer in the spring. We are already building on the substantial funding that is provided to health authorities for cancer services by making available extra funding: some £20 million since 1997 to improve breast cancer services and an additional £10 million to improve colorectal cancer services. We have the prospect of even greater investment when the announcements are made regarding the New Opportunities Fund.
Lord Wade of Chorlton: My Lords, first, I declare an interest as I lead a campaign to raise some £25 million for the Christie Hospital, of which we have already raised about £16.5 million. What role does the Minister believe that private funding of that nature—appealing to the local business community and individuals—should play in providing the high quality and excellent standards that the Christie Hospital intends to provide?
Baroness Hayman: My Lords, I applaud the noble Lord's efforts in that area. There is a fine tradition within the health service of local support and fund-raising, enhancing and providing even higher quality standards of care, particularly in the areas of environment and additional equipment, which has taken place throughout the history of the health service. We wish to see that encouraged. It is exactly that sort of partnership with charitable and local interests that we intend to build on in the New Opportunities Fund programme.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for the extremely detailed Answer which she gave to my first Question. Does she agree with me that one of the worst aspects of this stop-go programme which Christie's has had to undertake is its effect on forward planning for future treatment? It is almost wrecking any prospect of real improvement. As the Minister said, the Christie Hospital is one of the best centres of excellence in the world in relation to the disease.
Baroness Hayman: My Lords, I certainly agree that stop-go funding is not satisfactory. I believe that the trust understands that if the situation persists it may be necessary to open additional beds to make sure that chemotherapy patients receive the treatment they need.

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I understand that an application has been made for emergency pressure funding to do that. We are also looking at ways in which the ambulance service can provide transport for radiotherapy patients who cannot otherwise travel to and from the hospital.
I accept absolutely that we need to provide a sensible regional framework in which the hospital can plan ahead although I should say to my noble friend that, particularly on issues such as communications with patients and providing the most efficient services possible, the hospital must also look internally at what it can do to improve services.

Business
3.7 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lady Hollis of Heigham will, with the leave of the House, repeat a Statement that is being made in another place on the pensions Green Paper.

Sea Fisheries (Shellfish) (Amendment) Bill [H.L.]
The Earl of Lindsay: My Lords, I beg to introduce a Bill to amend Section 7(4) of the Sea Fisheries (Shellfish) Act 1967 in respect of several fisheries. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Earl of Lindsay.)
On Question, Bill read a first time, and to be printed.

Privileges: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That a Committee for Privileges be appointed and that, as proposed by the Committee of Selection, the following Lords together with the Chairman of Committees and any four Lords of Appeal be named of the committee:

L. Allen of Abbeydale,

L. Campbell of Alloway,

L. Carter,

L. Cledwyn of Penrhos,

L. Henley,

L. Glenamara,

B. Jay of Paddington,

L. Mowbray and Stourton,

L. Nathan,

L. Rodgers of Quarry Bank,

L. Strabolgi,

L. Strathclyde,

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L. Weatherill,

V. Whitelaw,

L. Wigoder;

That the Committee have power to appoint sub-committees and that such sub-committees have power to appoint their own Chairman; and
That the Committee have power to co-opt any Lord for the purposes of serving on any sub-committee.—(The Chairman of Committees.)
On Question, Motion agreed to.

Personal Bills: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to consider personal Bills and that, as proposed by the Committee of Selection, the following Lords together with the Chairman of Committees be named of the committee:

L. Astor of Hever,

L. Hogg of Cumbernauld,

L. Meston,

L. Templeman,

L. Wilberforce.—(The Chairman of Committees.)

On Question, Motion agreed to.

Hybrid Instruments: Select Committee
The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to consider hybrid instruments and that, as proposed by the Committee of Selection, the following Lords together with the Chairman of Committees be named of the committee:

L. Brougham and Vaux,

L. Burnham,

L. Carmichael of Kelvingrove,

L. Hayter,

L. Monkswell,

V. Oxfuird,

B. Thomas of Walliswood.—(The Chairman of Committees.)
On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]
3.9 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that this Bill be now read a second time.
The Bill continues the reform of youth justice which we began in the Crime and Disorder Act, and introduces much-needed protection for witnesses and the victims of

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crime. I know that all noble Lords look forward to the maiden speech of the noble Earl, Lord Rosslyn, which is to be made quite soon, particularly bearing in mind his expertise as a serving police officer for many years. I believe that he is presently superintendent in command of a Slough district.
We are committed to the reduction of crime and the fear of crime. If we are to achieve that ambitious goal, which I am sure that all noble Lords share, we must take effective action to deal with young offenders. Our primary aim is to prevent offending by children and young people. However, when they break the law, meaningful punishment is necessary to help young people to take responsibility for their actions, to make amends for their crimes and reparation to their victims and to return to the law-abiding community.
Part I of the Bill introduces a new sentence for young people convicted for the first time; that is, referral to a youth offender panel. The panel will agree a contract with the young offender, which will involve reparation to the victim and measures to tackle the causes of offending. The youth court will set the contract's duration. If a contract cannot be agreed or is broken, the young offender will be returned to the youth court to be sentenced for the original offence.
Panels will include at least one member of the local youth offending team as well as lay members of the community. The parents of offenders under 16 will be required to attend and the parents of older offenders will be encouraged to do so. Victims may attend if they wish. That new disposal therefore provides an opportunity for a great many young people to ensure—this is critical—that their first conviction is also their last.
Part II of the Bill fulfils our commitment to provide greater protection for complainants in rape and certain other serious sexual offence trials. It implements recommendations of the report, Speaking Up For Justice, to encourage and enable witnesses to give evidence who face real difficulty in doing so, whether through disability or intimidation. That report was subject to widespread consultation and was, I believe, widely welcomed.
Chapter I of Part II helps to ensure that the most vulnerable in our society have access to justice. Far too many cases involving the most vulnerable victims have been abandoned, or not even begun, because the victim cannot adequately give his side of the story. Other witnesses are afraid to come forward, or at least reluctant to do so, because they fear reprisal.
Under Clauses 16 and 17, special measures will be available for various witnesses—other than the accused—to help them to give their best evidence. Witnesses will be eligible for those special measures if they are under 17, or if they have a mental or physical disability or disorder, or if testifying would scare or distress them so much that their evidence would be impaired. There will be a presumption that complainants of sexual offences are eligible unless the court is satisfied that that is not necessary.
The court will determine in each case whether, and what, special measures should apply. Clauses 22 to 29 set out protective measures which may be authorised:
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first, putting up screens to prevent the witness seeing the accused; secondly, using a live television link to give evidence; thirdly, clearing the public, and occasionally the press, from the court room; fourthly, removing wigs and gowns; fifthly, using pre-recorded video evidence-in-chief; sixthly, using video-recorded cross-examination; seventhly, allowing intermediaries to help disabled witnesses to communicate with the court and, finally, enabling disabled witnesses to use other communication aids such as, for instance, alphabet boards and speech synthesisers.
Chapter II of Part II is designed to protect children and complainants in certain sexual offence trials from the trauma of being cross-examined in person by their alleged attacker. All noble Lords will have been deeply dismayed at the court room ordeals endured by the victims of Milton Brown and Ralston Edwards. They were subjected to prolonged and humiliating cross-examination by their attackers in person. That cannot be right.
Some have argued that it is best left to judicial discretion to prevent any repetition. In cases involving sex, violence or cruelty, defendants are already barred from personal cross-examination of child witnesses. The Government firmly believe that it is necessary to extend that prohibition to certain other serious offences involving child witnesses and to complainants of rape and certain other sexual offences. We owe a duty to the victims of those distressing crimes to ensure that they are not victimised afresh when they come to court. Clauses 33 and 34 are designed to fulfil our duty which, in the past, has not been fulfilled. The Bill also empowers the courts to impose such a ban in relation to other witnesses and in other cases.
We intend that those provisions will not interfere with the defendant's right to a fair trial. Defendants who are barred from personal cross-examination will be able to instruct a legal representative to do that work on their behalf. Where defendants refuse a lawyer, the court can appoint one if that is in the interests of justice.
Chapter III puts limits on the circumstances in which the defence in a sexual offence trial may use evidence of the complainant's previous sexual history. Under Clause 40, no such evidence or questioning will be admissible on the question of whether the complainant consented to sex unless that evidence or those questions relate to a specific incident within 24 hours of the alleged offence or are necessary to rebut prosecution evidence. On the question of whether the defendant believed that the complainant was consenting, evidence of sexual history will be admissible, provided that it relates to specific instances of fact and that the main purpose of introducing it is not to discredit the witness.
I know that some of your Lordships, and some outside this House, have misgivings about some aspects of the provisions. The Bill does not exclude all evidence of previous sexual behaviour, only irrelevant evidence. Taking rape as an obvious example, a complainant's previous sexual behaviour, whether one of wild abandon, tedium or total abstinence, is simply not relevant to the question of whether there was consent on

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the occasion in point; nor should it render a complainant less worthy of belief or less deserving of the protection of the law.
Chapter IV of Part II and Schedule 2 to the Bill reform current rules on reporting restrictions to give clearer protection for certain witnesses. Clause 43 extends current restrictions on the identification of alleged child and juvenile offenders and witnesses to apply from the moment a complaint has been made and to be enforceable throughout the United Kingdom.
The current restrictions on identifying alleged rape victims will be extended to alleged victims of certain other sexual offences and be made enforceable throughout the United Kingdom. Under Clause 45, the court may also order restrictions on the publication of details which might allow intimidated witnesses to be identified.
Chapter V of Part II relates to the competency of witnesses, creating a simple new presumption that everyone is competent to give evidence in court if they can understand the questions put and give answers which the court can understand. The Bill provides for adult witnesses to give evidence unsworn in certain circumstances.
Finally, Chapter VI amends the law on drawing inferences from a suspect's silence to meet the requirements of the European Court of Human Rights in the case of Murray. In future, no inferences may be drawn from silence under questioning at a police station where a suspect has not been given the opportunity to see a solicitor.
Perhaps I may make two comments at this stage about the passage of the Bill. First, we are approaching this with a genuinely open mind. If your Lordships table amendments that are consistent with the theme and philosophy of the Bill, I undertake to give each one decent consideration. I have said that in the past, and we were able to do it, particularly in respect of the Human Rights Bill, the Data Protection Bill and the Crime and Disorder Bill. As I see the noble Baroness, Lady Anelay, in her place, perhaps I may say that we were able, for example, to have extremely constructive discussions with representatives of the Magistrates' Association and the Justices' Clerks' Society which she brought about. Improvements were made to the Bill in those particulars.
Secondly, I repeat what was stated by my noble friend the Leader of the House by letter; that it is our intention, if your Lordships are agreeable, on any Bill of substance, following Second Reading and before Committee, to give all noble Lords and advisers the opportunity, should they wish it, to have discussions with officials and/or Ministers as is thought appropriate in order that questions may be answered informally in order that errors or misunderstandings on either side might be removed. I hope that your Lordships will take advantage of that opportunity because this is an extremely important piece of legislation.
If we can stop today's delinquents becoming tomorrow's recidivists, we will have done a good job for society, for prospective victims, and in terms of
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preventing the endless waste of human life and resource which is seen by anyone who regularly visits prisons, as I do.
We believe that the youth offender panel is an imaginative tool for the criminal justice system. It can step in at the time which virtually all criminologists and penologists know is so critically important, right in the early stages; in other words, it can put first-time offenders back on the right track.
We cannot deliver justice unless victims and witnesses are willing to report offences, to give evidence in court and to have decent, imaginative support, for their needs, troubles and worries. But we have not fulfilled our obligations to a large number of witnesses in the past, regarding them as appendages—sometimes rather inconvenient appendages—to a system which has been focused too much on the criminal trial and not sufficiently on the needs and decent requirements of witnesses and complainants.
We are therefore seeking not only to protect the defendant's right to a fair trial, but to recognise that no right is absolute and that other people have co-terminus rights which need careful regard.
This measure is designed to run in conjunction with the recent White Paper and with the Bill introduced by the noble and learned Lord the Lord Chancellor in your Lordships' House yesterday. We want all our citizens to have equal access to justice. That means that victims and witnesses are entitled to have the care and respect that they deserve. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
3.23 p.m.
Lord Windlesham: My Lords, the first part of the Bill adds another piece to the mosaic of youth justice which is being assembled following the passage of the Crime and Disorder Act 1998. It deals with a new process by which certain young offenders may be referred by the youth court to a youth offender panel. As an aside, perhaps I may say that the Bill takes many clauses to achieve its simple aim. It is strange to see so much detail incorporated in a statute. I asked a knowledgeable source what the reason could be and was offered one possible explanation. It was that in the Crime and Disorder Act more of a broad brush was wielded and that the Home Office, in its usual conscientious way, sent out guidance, only to be accused of legislating by guidance. Perhaps this time no chances were being taken. I do not know whether that is a correct explanation. I leave it for the Minister to inform the House or otherwise.
Youth offender panels will be set up by the local youth offending teams, numbering between 150 and 200 in all, throughout England and Wales. They are currently being piloted. This part of the Bill will not apply in Scotland where there is already a separate system of children's hearings which has previously been commended to the House. Those of your Lordships who had the privilege of knowing Lady Faithfull will recall that she frequently referred to the Scottish practice in debates on criminal justice issues.

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Four of the pilot teams are in London. In order to inform myself in advance of the debate, and in co-operation with the Inner London Probation Service, I had an opportunity this morning for a discussion with the manager of the youth offending team in West London. These teams consist of representatives of all the relevant local services: social workers, probation and police officers, and education or health staff. They are genuinely multi-agency in composition. When a youth court decides to make a referral order under Clause 1, following conviction for the first time of a young person not less than 10 nor more than 18 years of age, a panel will be set up to prepare a programme in the form of a contract designed to reduce the prospect of reoffending. Those present at the panel are expected to be the offender and his or her family, if available; the victim and friends or family, if willing; a police officer; a member of the youth offending team, probably drawn from the social services, and, most importantly, the magistrate who conducted the proceedings who may be a stipendiary magistrate, or the chairman or a member of the bench of lay magistrates.
Reparation is intended to be a central feature in the process. Details of programmes to influence the offending behaviour of the young person are set out in Clause 8. The first requirement is to make financial or some other form of reparation to the victim. Other provisions are designed to achieve reintegration into the law-abiding community, and to take responsibility for the consequences of his or her offending behaviour.
These are ambitious objectives, but early and appropriate intervention in what may develop into a criminal career is, in the Minister's description, an "imaginative tool". I accept that description and think it is an apt one. However, it would be unrealistic to expect that the objectives will always be met. Some, perhaps many, of the young people will inevitably relapse into further offending and make further court appearances. But referral to a youth offender panel represents a constructive alternative to entering on a cycle of persistent offending, which has been one of the most serious, harmful and widespread of all criminal justice issues.
The characteristics of youth crime—or the "blight" of youth crime, if that is not too strong a word—are only too well known. Within the family, if there is one, they are parental criminality, poor parental supervision and family conflict. At school, if they attend, there is widespread truancy and disruptive behaviour, in some instances leading to exclusion. In the community, there is disorganisation and the availability of drugs. As regards the individual, the characteristics are his or her temperament; alienation; early involvement in problem behaviour; lack of any occupation; no qualifications or skills; no work experience; and unemployment or low income. Finally, and perhaps most important of all, there is a lack of victim empathy. This is common among young offenders, especially persistent young offenders.
The relevance of that last factor—lack of any empathy with victims—takes us back to the youth offender panels. Their success or failure, I submit, should not be judged solely on the basis of the extent to which they do or do not prevent offending. The focus
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should equally be on what can be done for the victim or relatives of the victim, who are so often overlooked in public responses to crime.
I turn to the latter part of the Bill which includes significant new measures to provide better protection for witnesses and victims. For too long, vulnerable people have been unable to achieve protection through the courts. That may be because they are uneasy or fearful about giving evidence. Children, rape victims and witnesses with physical or mental disabilities are only three examples of categories that call for special protection.
I should perhaps have declared an interest earlier. I am president of Victim Support. I have had the privilege of working in that capacity for many years. It is a large, voluntary organisation which, last year, offered help to more than 1 million people who had suffered from criminal offences ranging from burglary to the murder of a relative.
The Crown Court Witness Service, provided by Victim Support in every Crown Court in England and Wales, has in the past year helped nearly 100,000 victims or witnesses who have attended criminal trials, including approximately 2,500 children under the age of 14. I say to the noble and learned Lord, Lord Bingham of Cornhill, who is due to speak in the debate, and to the House in general, that Victim Support owes a great deal to his predecessor as Lord Chief Justice, Lord Taylor, for the encouragement he gave in the establishment of the Crown Court Victim/Witness Service. One of the last public engagements that Lord Taylor fulfilled before his early retirement on the grounds of ill health was at Newcastle Crown Court at an event organised by Victim Support.
Much remains to be done, especially in extending victim/witness services in the magistrates' courts. Victim Support is currently working in co-operation with other organisations and on court-based initiatives in some 130 magistrates' courts. Full national coverage is needed and I believe it is now within reach. The funding is under discussion with the Home Office. I hope that the Minister—whose heart 1 am sure is in the right place on this issue—will take the message back and say that we keenly await an early and favourable decision.
In conclusion, this Bill, and the emphasis it gives to reparation in Part I, and the special measures including screens, television links, video recorded evidence and other facilities in the latter parts, should make a substantial contribution towards furthering the interests of victims of crime. Of course, the rights of the accused in a criminal trial are also of high importance. But in view of the time—there is important business later today—I shall leave that aspect of the Bill to others better qualified to speak about it than myself.
3.35 p.m.
Lord Dholakia: My Lords, it is a great delight for me to follow the two noble Lords, Lord Williams of Mostyn and Lord Windlesham. They care so passionately about our criminal justice system, as do many of us in your Lordships' House.

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The White Paper, No More Excuses, included a range of proposals to improve the effectiveness of the youth court in preventing offending by children and young people. I am delighted that this is the principal aim of the youth justice system. For that reason, it will certainly carry the support of this side of the House.
Last Monday, in a supplementary to a Starred Question, I said that it cost more than £75,000 for each of the 15 to 17 year-old male offenders in custody. Yesterday saw the publication of Wasted Lives, a research project conducted by NACRO, which I now chair. I am delighted that the previous chairman, the noble Lord, Lord Christopher, is sitting opposite me. That report also had the support of the Prince's Trust.
With 2,500 young offenders in custody nationally, the total cost of their offending is at least £190 million. That figure is supported by KPMG, who looked at the costing in terms of this particular process. The message in the report is clear and simple. Early intervention means fewer crimes, fewer victims and less work for the courts and prisons. I do not think many of us can disagree with those principles.
I welcome the broad thrust of the Bill. Almost all criminal justice agencies have identified causes of many youth crimes. It has its roots in severe family and educational problems. Disadvantaged groups are still to be found disproportionately among the poor, the unemployed, the homeless, those who have never worked, those who are stopped and searched, those who underachieve in schools and many families which shuttle between penal and mental institutions and their homes.
Part I of the Bill is an imaginative development which will have a number of advantages over the current youth court procedures. The purpose, in terms of the juvenile offending teams and the special panels, has been spelt out clearly. The provision requires youth courts to refer the majority of juveniles who appear in court for the first time and who plead guilty to a youth referral panel. The young offender and his or her parents would be required to attend the panel. Others, such as a teacher, could do so if that were appropriate, and victims would be able to do so if they wished.
The youth panel and the young person would have to draw up a contract which would involve the young person in appropriate activities, such as reparation to the victim or the community, and in work designed to tackle the cause of offending. If the young person did not comply with the contract, he or she would be returned to court to be sentenced for the original offence. If he or she completed the contract successfully, paragraph 5 of Schedule 3 of the Bill provides for the offence to be spent for the purposes of the Rehabilitation of Offenders Act 1974. So far so good.
First, as one who has sat in a magistrates' court for a long time and also in the youth court, perhaps I may say that in the more formal proceedings of the youth court today the young offender and the parents often fail to understand fully what is happening, and the legal procedures can hinder the process of getting young people and parents to speak and contribute fully to the
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discussion. The proposed panel would be better able to involve the young person and the parents fully in discussing the offence, its impact on the victims and the steps that should be taken to make amends and to ensure that there is no repetition.
Secondly, when victims wish to be involved, the procedure would enable them to do so. Experience of restorative justice—for example, with cautioned young offenders in this country or in New Zealand's family group conferences—shows that in appropriate cases face-to-face meetings with the victims of crime can have a salutary effect on young offenders and that many victims appreciate the opportunity to bring home to the young person the degree of distress that the offence has caused them.
Thirdly, in a panel setting the drawing up of a contract can concentrate on the best course of action to prevent reoffending, including attention to the welfare needs of the young person and his and her family such as family counselling, educational measures and help in relation to drug abuse. While courts can invoke welfare-related measures—for example, when passing a supervision order—they can only do so when the offence is regarded as sufficiently serious to warrant such a sentence. As a result many young people appearing in court for the first time miss out on welfare intervention which could help to steer them away from further trouble.
Fourthly, the provision for the offence to be regarded as spent if the contract is completed successfully will provide a positive incentive to the young person and a constructive outcome, enabling him or her to make a fresh start without the stigma of a criminal record. This seems to me to be the most significant approach to youth crime and must be welcomed.
Of course, we have some very detailed reservations and I shall certainly take up the Minister's offer that we shall be able to discuss these between Second Reading and the Committee stage.
Perhaps I may explain one of our main reservations. It relates to the nature of sanctions for failing to keep a contract which has been agreed in a non-court setting and is therefore not subject to the full limits of proportionality which normally apply in sentencing. It is true that the referring youth court would have taken proportionality into account in specifying the length of the contract, but the intensity of programmes of intervention of the same length can vary a great deal.
It does not seem right that a failure to abide by a contract agreed in a non-court setting should be subject to the full range of youth court penalties, including custody, especially as the referring court must have decided that the original offence did not merit custody before making the referral to the panel. We will therefore seek to amend the Bill on this point in Committee.
Many of us would like to go further than the Bill in dealing with young offenders through non-criminal procedures rather than in criminal courts. That is the case in Scotland, where most young offenders are dealt with in welfare-based children's hearings. I am delighted that my noble friend Lord Mar and Kellie is

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to contribute on that particular point. Such orders can have a tremendous influence on young people. It is also the system in many European countries where young offenders are dealt with in civil family courts rather than in criminal courts as in this country. However, the provisions in Part I of the Bill are a welcome if small step in the right direction.
Perhaps I may commend the report, Wasted Lives, which I mentioned earlier. It should be bedtime reading for all members of the youth referral panel. It identifies six key points that need to be addressed. The most significant risk factors are absence from school; friends involved in offending; family conflict; unstable living conditions; and other family members involved in crime. The average number of risk factors for each offender is six. More than half of the juvenile offenders questioned by researchers in the report had some contact with the social services, usually as a result of family difficulty. Almost one-third were described as being in children's homes and one-quarter claimed to have been in foster care. Around half of those interviewed came from a violent family background. Almost all of those interviewed had experienced long absences from school. These are the issues which we certainly need to address in different settings.
The second point in the Bill which interests us is the protection of witnesses. I commend much of what the noble Lord, Lord Windlesham, had to say on that point. There should be wider use of live video links; screening witnesses from the defendant's view; excluding specified people from court during witnesses' evidence; removing wigs and gowns; using video recordings for evidence-in-chief and, in some cases, using video recordings of cross-examination and asking a witness questions through an intermediary. These are all sound judgments and ought to be supported.
However, there is a strong case for strengthening the protection of child witnesses, vulnerable or intimated witnesses and the alleged victims of sexual offences. There is no doubt that in the past the trauma of giving evidence has led to the collapse of all too many cases involving serious offenders who have walked free as a result. It has also often inflicted a double trauma on victims who have already suffered greatly as a result of serious offences. In many cases members of minority ethnic groups have been subjected to sustained harassment, intimidation and violence. The fear of reprisals against anyone giving evidence has made it difficult for prosecutions to be brought with a reasonable chance of success. Therefore the Government should be applauded for their determination to tackle those particular problems. Equally, we hope that some judges will refrain from stupid comments on rape cases which can do a great deal of damage to the confidence of the community in our courts.
Finally, I need to tackle two issues which have been brought to my attention. These matters relate to people who have mental health problems. There is a need to look very carefully at Clause 31. That ensures that, where it is thought to be necessary, the judge will give a warning to the jury that the use of a special measures direction should not prejudice them against the accused. However, there is also potential for a special measures
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directive to prejudice the jury against a witness by giving his or her evidence less weight than if it had been given it without the aid of a special measure. That is likely to be particularly true of people who have mental health problems, given the stigma and discrimination that they often face and the stereotypes that members of a jury are likely to hold.
At this stage I do not wish to comment on the right to silence. But in conclusion I wish to draw the attention of the Minister to the statistics on race and the criminal justice system. I refer to the Home Office publication under Section 95 of the Criminal Justice Act 1991. I would not wish to repeat the gross over-representation of black people in our penal institutions, but suffice it to say that we would certainly wish to ensure that the outcomes of the youth justice panel are ethnically monitored and publicised on a regular basis. There is no excuse not to do that at this time.
3.48 p.m.
The Earl of Rosslyn: My Lords, I have been a police officer for 18 years, serving, first, with the Metropolitan Police and now in the Thames Valley as a superintendent in command of the Slough and district police area. I am very proud to have had an association with both these organisations and I am grateful to my own chief constable for allowing me to speak here today, mindful of the requirements of police regulations that a police officer should not play an active part in politics. While arguably as anxious a moment as any I have experienced while on duty, I hope to be sustained this afternoon by the quiet encouragement which this House offers to maiden speakers and to which I have often been a silent witness.
The Explanatory Notes issued with the Bill make reference to three principles to be applied by youth offender panels: restoration, reintegration and taking responsibility, which are collectively referred to as "restorative justice". This, I believe, is as significant a statement of intent as that contained in the Crime and Disorder Act, which defined the principal aim of the youth justice system as being,
"to prevent offending by children and young people".
Significant and welcome, it contrasts with the experience of many that, while the existing process of youth justice revolves around the offender, offenders rarely have to account for their behaviour and there is little community or victim focus. The process is, too often, slow and expensive, concentrating on punishment and blame rather than repairing the harm which has been caused.
Since 1997, our force has applied the principles of restorative justice as the standard response to early offending among young people and in particular when cautioning young offenders as an alternative to court proceedings. Traditionally, a police caution involved little more than the admonishment, by a uniformed police officer, of a young offender, in the presence of his parent or guardian. In applying the principles of restorative justice, many such cautions are now delivered as part of what is called a "community conference". This relatively new approach has in fact

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ancient roots—the model having been adapted from the Whanau conference first practised by the Maori people. It involves bringing together victim, offender and others affected by the offending behaviour, with a trained police facilitator guiding them through a discussion of how the crime occurred, how it has affected their lives and how the harm caused can be repaired.
The conferences provide victims and others with the opportunity to confront the offender, to express their feelings, ask questions and have a say in the outcome. Facilitators need considerable skill in managing the intense emotions which can arise. Central to their task is to keep the focus on what the offender did and how his unacceptable behaviour affected others, rather than whether the offender is a good or bad person. By making this distinction between the unacceptable behaviour and the potential for good in the person, the conference offers the possibility of social reintegration. Enough shame is required to bring home the seriousness of the offence, but not so much as to humiliate or exclude.
There is already some evidence that conferences, if planned and implemented well, can satisfy victims to a greater extent than the traditional justice system, with victims considering justice to have been better delivered and offenders held more accountable. Victims also reported a greater sense of healing and were found likely to receive more compensation than that ordered by the courts. There is, however, much evidence that victims are often more satisfied with symbolic reparation than material compensation. Only 6 per cent. of victims who attended a conference left fearing that they might become victims again, compared with almost a fifth who went through the courts; 74 per cent. received an apology from the offender, as compared with 14 per cent. in the court system; and 79 per cent. of offenders felt ashamed of their actions, compared with 66 per cent. who attended court.
There is also some emerging evidence that this new approach can lead to lower rates of repeat offending. Perhaps I may end my speech by giving your Lordships one example. On 1st May 1998, two 13 year-old boys broke into an unoccupied building in Slough where a new mosque was shortly to be built. Before leaving they turned on a gas supply and, shortly afterwards, an explosion and a fire occurred. While fire fighters struggled to control the blaze, the main ceiling collapsed and the safety of a number of officers was at risk. The two boys were arrested and admitted their part in the incident. From contact with other agencies, it was evident that both had a number of educational and domestic problems which were contributing to their offending behaviour
In October, I took part in a community conference attended by those boys, their mothers, other members of the family, fire officers (including one who had been present on the night) and three trustees of the mosque. We frequently exhort young offenders to accept responsibility for their actions but rarely do we require them to confront so directly, as these two boys did, the consequences of what they have done. For the boys this was at times profoundly uncomfortable, but it was also
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the beginning of a process of strengthening their network of support and guidance. And what of the victims? Many had feared that the motive for this crime was racism or religious intolerance and it was not until this meeting with the two boys that the anxieties of the Muslim community were assuaged.
Community conferences are a new and evolving approach to justice and we must be careful not to claim too much too soon. But there are encouraging signs that they can be an effective intervention within the criminal justice system. I do hope that the youth offender panels will play their part in further developing this potential.
3.55 p.m.
Baroness Carnegy of Lour: My Lords, on behalf of the whole House, it is a very great pleasure for me to thank the noble Earl for his contribution and to congratulate him on a really fascinating maiden speech. I know that the noble Earl's enthusiasms include music and historic buildings, but it is his life's career since university as a policeman, starting on the beat and now rising to the extremely responsible post of superintendent, that fits him particularly to contribute to the Second Reading of this Bill.
Any noble Lords who have read the White Paper upon which the Bill is based and have wondered what the word "mediation" means in the context of the legislation have now had a very good example from the noble Earl. Indeed, he has illustrated it beautifully. I wonder whether the Minister knew that the roots and ethos of the Bill are, in fact, to be found in the Maori culture. The noble Lord is shaking his head. I believe that the noble Earl has told him something that he did not know—and that is quite something. I am sure that we are all very glad to have heard the noble Earl. We hope that the constraints of his profession will not prevent him joining our discussions again—and as soon as possible.
Like the noble Earl, I should like to speak briefly on Part I of the Bill. I have two specific questions for the Minister. It seems to me that the system proposed is, to use the Minister's own word, "imaginative" and that it should be practical. However, I say that with one proviso; namely, that the right people can be attracted to serve on the youth offender panels and that they are properly equipped to do the job.
Some features of the Bill—I believe that the noble and learned Lord, Lord Mackay of Clashfern, who knows both systems so intimately may agree with me—have in fact been well proven over the years in the long-standing children's hearings system, which was mentioned by my noble friend Lord Windlesham. Of course, it is clear that this is a very different arrangement from the Scottish system and that it is set in a very different legal context. I note with some relief that Part I of this Bill steers well clear of the knotty problems which, despite a good deal of recent amendment and updating, still beset children's panels north of the Border.
The separation of the function of the court and of the panel works in Scotland, although it does so differently. I believe that it will work under this Bill. Both schemes

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share one very important element: the atmosphere that can be created at a panel meeting as opposed to in a court. That can involve a two or three-sided discussion, and looking together at what the offence was, who was hurt by it, why a price has to be paid for offending, what that price should be, and how the child or young person can best be led to alter his or her behaviour in future.
A third important benefit of this scheme is, I believe, missing in Scotland. The procedure proposed will be absolutely clear and simple to understand for a young person, for parents and for anyone else involved. If you are a young, first offender and choose to accept the sentence of referral to a panel, you and your parents, where appropriate, will know and understand precisely what will happen. You will be asked to discuss with the panel members what you have done wrong; you will know and understand that the panel will, with you, draw up a list of certain things you must do or must not do over a period, which has already been set, of between three and 12 months; and you will sign a contract, an agreement. If you stick to that agreement, that will be the end of it as long as you do not get into trouble again. If you break the agreement or decide not to sign it, you go back to the youth court.
That procedure should be simple to understand for all concerned, but of course whether it succeeds depends largely on how the panel does its job. It depends on the skill of the members of the panel in identifying from what they see and hear the likely root causes of the offence. Is the cause lack of parental supervision, the keeping of bad company, truanting, drugs, drink, or lack of a job? The success of the procedure depends on the skill of the panel in identifying the sort of programme that has the best chance of changing that particular young person's bad behaviour. Would being kept away from a particular peer group help or hinder? Would being kept at home at certain times help or hinder? It may do either. Would meeting the victim help or hinder? Would a particular course at school or college help? Those are very difficult matters. They require not just commonsense, but knowledge and skill, as the many noble Lords who have been magistrates, or who are magistrates or judges, know very well.
Can the Minister give us some idea of how the Government see the panel members being recruited and trained? Each panel will consist, as he said, of one member of the relevant youth offending team and two others. How will those others be selected? We are told in Clause 6(4) that it will all be defined in regulations. I suggest that we need to know a lot more than that. From where will panel members be drawn? Will people be asked to volunteer? How will they be vetted? Will training be compulsory? What will be the time commitment? These are not the usual routine questions about the nature of proposed regulations in a Bill; they are questions that go to the heart of this scheme—questions about the people who will, quite simply, make it succeed or fail.
Panel members in Scotland find this work hugely satisfying, but they have to be special people with special knowledge and skills. Can the Minister let us into the Government's thinking on this matter? The framework of the scheme seems so promising, but to
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assess its chances of success we need to know more about the people who will operate it. I hope that the Minister will be able to enlighten us.
My second question arises from the note which some noble Lords have received from the Law Society, which welcomes the aims of Part I and is reassured that legal advice will be available in the essential early stages at the police station and at court, where a decision has to be made about the correct plea. I wonder whether, at any time after referral to the panel, a young person or his parents may or may not be entitled to seek legal advice about, for example, agreeing the nature of reparation to a victim or the amount of a fine.
Keeping the court and the panel separate make it desirable that lawyers should stay away, out of the system, but I know that in Scotland, where the legal profession never has a place at panel hearings, there is anxiety now that this conflicts with the European Convention on Human Rights and that it will cause a problem under the new Human Rights Act. Can the Minister tell us whether his assurance on the front of the Bill that its provisions comply with the convention means that lawyers will or will not be capable of being involved in the panel procedure? It is a very interesting scheme. I look forward to hearing other speakers, to the Minister's reply and to the later stages of the Bill.

Business
Lord Hoyle: My Lords, before we move to the Statement on the Pensions Green Paper, I remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.
The Earl of Clanwilliam: My Lords, before the Minister sits down, can he say whether the Green Paper will be available? Apparently it is not available in the Printed Paper Office at this minute.
Lord Hoyle: My Lords, we are rather astonished on this side, but I shall certainly look into it.

Pensions Green Paper
4.7 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, with the leave of the House, I shall now repeat a Statement given in another place by my right honourable friend the Secretary of State for Social Security. The Statement is as follows:
"With your permission, Madam Speaker, I should like to make a Statement on pensions, as part of our modernisation of the welfare state.
"All our reforms are driven by the central principle—work for those who can, and security for those who cannot. Welfare reform is well underway. We have launched the New Deal, and announced the

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Single Gateway to the benefits system. We are modernising the tax and benefit system to make work pay, with a new Working Families Tax Credit underpinned by the national minimum wage. We have begun to tackle child poverty, with the biggest ever rise in child benefit. We are reforming the Child Support Agency and we have introduced a national childcare strategy. We are also reforming the legal aid system and student finance.
"Over the past few months I have set out proposals for wide-ranging reforms to disability benefits, along with reforms to modernise bereavement benefits. And, today, I set out far-reaching reform to ensure that the pensions system meets the needs of the next 50 years.
"A pension is the most important asset people have, more important even than buying a house. That is why we want to put pensions on a sound footing, where every individual is guaranteed a decent income in retirement, where people can rely once again on secure and effective private pensions. We are delivering security for today's pensioners—and peace of mind for tomorrow's.
"We are already providing security for today's pensioners: VAT on heating cut to its lowest possible level; a winter fuel bonus; help with bus fares; free eye tests; and higher pensions. With this new Labour Government Britain's pensioners are £140 a year or more better off. Real security for today's pensioners.
"And, for future pensioners I am publishing our proposals in a Green Paper, which sets out a new insurance contract between the state and individuals. It is a new public-private partnership for better pensions. Copies are available in the Vote Office and a summary of these proposals is being sent to every Member of this House.
"Why do we need to change? There are three overwhelming reasons for reforming pensions. First, if we do nothing, one person in three could, by 2050, be retiring on income support. Under the current system, you can work hard all your working life and still retire on an income so low that you will depend on benefits for the rest of your life. Secondly, many middle and higher earners want to save more, and should save more, but have lost faith in the pensions system because of the scandal of pension mis-selling. Up to 2.5 million people, including nurses and teachers, may have been sold the wrong pension and have had their peace of mind in retirement shattered. This Government, unlike the previous government, have not turned a blind eye to their plight. We have already toughened up the regulation of personal pensions and taken firm actions to ensure that those who lost out get proper compensation. And for those who do not have an occupational scheme, too often there is not a good place for them to put their savings. Thirdly, the current system gives a poor deal to the millions of mothers and carers who have career breaks and find that they are penalised.
"The principles driving our reforms are clear. Everyone who can save for their retirement has a responsibility to do so. In turn, the Government have
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a responsibility to provide security in retirement for those who cannot save enough. Today, I am announcing a radical new pensions policy. It is radical because it guarantees a decent income for all pensioners. For the first time ever, a lifetime's work will not lead to dependency on means-tested benefits in retirement. Our reforms create a new insurance contract combining the price-linked basic state pension with a minimum income guarantee that we will aim in the long run to increase in line with earnings. It is a contract that rewards thrift and savings instead of penalising them. It is radical because for the first time it helps mothers to get a decent pension despite career breaks. It is radical because it will for the first time give carers a right to a decent pension. It replaces SERPS with the new support and a new state second pension to help those on low and middle incomes. It is radical because it builds a completely new privately funded pension that is simpler to understand and has lower charges. These proposals will put the trust back into pensions.
"I turn, first, to the minimum income guarantee. Today I can announce that we are building a new insurance contract between state and individuals. In the past the basic state pension has been the sole focus of the Government's deal with pensioners. The basic state pension will remain a universal, contributory non-means-tested benefit. But the basic state pension alone cannot provide, and has never provided, everyone with a decent income in retirement. This Government will do better. In future, there will be a new contract. The state will guarantee that anyone who retires in poverty will receive a minimum income guarantee well above the current level of income support—beginning at £75 for a single pensioner and £116 for a pensioner couple. We expect that minimum income guarantee to rise in line with earnings.
"The complaint I hear more than any other from the pensioners I meet is that the country gets wealthier but they do not share the gains. That is something this Government will remedy. Today I can announce that our intention is to give the poorest pensioners the chance to share in the rising wealth of the country. Consistent with proper management of the country's finances, our aim is that over the long term the minimum income guarantee should rise in line with earnings. We are also consulting on the best ways of changing the rules so that we reward savings even more.
"I turn now to second-tier provision. People, after a lifetime in work, should not have to rely on the minimum income guarantee in retirement. We want to ensure that they can do better than that guarantee. We want to ensure that low earners in work on less than £9,000 a year and people whose work is interrupted to look after children or sick relatives, as well as moderate and higher earners, have a higher income than the guarantee. So we need to do more. Low earners in work currently depend on SERPS for a decent pension. But SERPS is income or earnings related. If you earn little, you get little. SERPS does not give sufficient help to low earners.

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"So today I can announce that we will replace SERPS with a new scheme, a SERPS Mark II—the new state second pension. This will deliver a dramatic increase in the value of pensions. The new state second pension will be worth at least double what SERPS currently pays for people earning less than £9,000. Up to 5 million people stand to benefit. Under the current system, a person earning £6,000 a year would get £13 a week from SERPS, but will get £46 per week from the new scheme—£33 a week extra. That is real security for today's low paid.
"We also promised in our manifesto that we would do more for people caring for children, or for sick or disabled relatives, and for people who have worked but now cannot because of disability. So today I can also announce that we will end the unfairness where someone who gives up waged work to care does not have the chance to build up a second pension. This means that a mother, who takes two years off work to look after her two young children, will no longer lose out on her pension. Our reforms will for the first time provide security for 2.5 million carers, by helping them with pension contributions, enabling them to build up a second pension as of right. They will be credited into the new state second pension. Parents of nearly 200,000 disabled children and some 1.5 million people with a long-term disability and interrupted work record will also gain from this proposal.
"The problems of the current system do not just affect those who earn less than £9,000 a year. Too many people earning more than £9,000 get a raw deal. Our plans will change that. Middle earners will get more help. And they and higher earners will have decent products in which they can invest. That is why our long-term ambition is that everyone earning more than £9,000 should be in a secure funded private pension.
"Stakeholder pensions will be attractive because they will be more secure. Independent trustees will ensure that the rights and interests of scheme members are put first. They will be cheap. On average personal pension charges can eat up to 25 per cent. of your savings. Under stakeholder pensions we expect a substantial reduction in charges as a result of simpler regulation. They will be flexible. If a member does not contribute for a period—for example, a mother who is at home bringing up children—no charges will be levied that eat up savings. Similarly, if you change jobs, you will not lose out. Stakeholder pensions will also be of higher quality. We will protect consumers by building quality into the system. We will require all stakeholder pension schemes to meet specified benchmark standards. They will be simpler to understand. Pensions are complicated. Private pensions are often a nightmare to understand. We intend stakeholder pensions to be simpler and more transparent.
"Our proposals for stakeholder pension schemes will give up to 5 million people who today are without a funded second pension the chance to build up a secure, decent income for their retirement. Everyone earning between £9,000 and £18,500 will
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receive better pension rights. The Government expect to spend £500 million a year on increased payments for those who join funded schemes. For many, this will make joining a new stakeholder pension scheme more attractive. Someone earning £12,000 a year could increase their stakeholder private pension by almost £1,000 a year in retirement. And, once stakeholder pensions are up and running, we will reshape the system to make private-funded pensions the only sensible option for those above £9,000.
"I strongly believe that those incentives are fairer and more effective than increasing compulsion. I do not think it is the Government's job to make life harder for the person on £12,000 with two children and a mortgage to pay. I want to help middle earners, not penalise them. But I do want them to know where they stand. So I also want to provide another kind of incentive for people to save.
"Today, I can announce that, for the first time, we will provide an annual pensions statement for every working person in the country. It will set out how much private and state pension people are likely to get on retirement. Everyone will know where they stand. And they will know in black and white the consequences of them not saving more. We will work with employers and the pensions industry to make the statement as effective as possible.
"Other options for reform have been urged on us. Some have suggested that we introduce compulsion for all. Some have suggested privatising the whole system. We have looked closely at those proposals. Today I want to tell the House why those options would not work. We already compel more than 20 million employees to save now. So the question is, should we compel them to save even more?
"For low earners, no amount of extra compulsion will help. They simply cannot afford the amounts they would need to save. So anyone who backs compulsion for all has to justify that kind of burden on low earners. I am not willing to do so.
"There are some groups, however, such as the self-employed, who could afford to save more and are currently not saving enough. We are consulting on letting the self-employed join the new state second pension in return for their contribution. We believe it is not right to compel them before stakeholder pensions are properly established. But we will keep under review the case for compulsion once stakeholder schemes have a proven track record, if people fail to save what they need.
"Others have urged us to privatise the whole system. That would be no help for millions of low earners who could not afford to save enough. It would cost £150 billion, even after the costs of disruptive changes to the tax system. The last government's plans would have meant massive up-front costs, the loss of tax relief and the abolition of the state pension. Alternatively, some have suggested using private schemes that would take money from the private pensions of middle and high earners to give money to the low paid. That is not practical. Nor do I think that would be acceptable. Our proposals are, by contrast, manageable, affordable, and workable.

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"By extending individual pensions, and by a better combination of the state pension and the minimum income guarantee, we will provide better pensions and also reduce significantly the share of state spending on pensions in the long run.
"The overall amount spent on pensions will go up, but private pensions will take an increasing share. Instead of 60 per cent. state and 40 per cent. personal provision, that will become 40 per cent. state and 60 per cent private. The reason that this is important is that people live longer—often for 30 years after they retire—creating new demands on the welfare state, such as long term care. Our plans will mean we can afford to tackle those challenges.
"Our radical new contract for pensions will ensure security for those who cannot provide for themselves, and encourage those who can save for their retirement to do so. It will lift many more working people, mothers and carers off means tested benefits. Our plans will help low earners find security for the first time in retirement. They will give a boost to middle earners, with a new secure private pension and money to invest in it. And they will help everyone—no matter what they earn—by proving better regulated and more secure private pensions. Good news for today's pensioners, peace of mind for tomorrow's.
"I commend these proposals to the House."
My Lords, that concludes the Statement.
4.23 p.m.
Lord Higgins: My Lords, the House would wish to thank the noble Baroness the Minister for repeating the Statement made in the other place. I must declare an interest, as I am chairman of a company pension fund.
The Statement and Green Paper have been long awaited. They were originally promised in the first part of 1998. The Government have at least managed to produce a Statement inside 1998. It is extremely complicated and important. Its process of gestation has involved the sacking of a Secretary of State and the resignation of a Minister of State. Quite extraordinarily, the latter part of the Statement largely consists of a rebuttal of their views. Indeed, that is something that in many respects was not expected or even leaked to the press in advance.
The theme that those of us on this side of the House have been following is that the Government have been consistently undermining the contributory principle and moving more towards means-testing. To a considerable extent, the Statement and Green Paper move in the same direction. In one respect, it is not so much a question of means-testing benefits; the contributions also will be very much income-related. At present, people who have not yet retired pay on a so-called pay-as-you-go system for those who have already retired. In addition, they make contributions to their own pensions. As I understand it, people who have not yet retired and who are above the income levels that the noble Baroness mentioned will in addition contribute one way or
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another—perhaps the noble Baroness will tell us whether by some form of taxation—to the pensions of others who have not yet retired.
It is not clear that the Statement or Green Paper do anything for existing pensioners. Will the noble Baroness make it clear that the basic national insurance pension will, as the Statement said, remain and be means-tested? So far, the Government's commitment extends only to the present Parliament. Will the noble Baroness make clear whether this is to be taken as a statement for all time as far as the basic national insurance pension is concerned?
It is noticeable that the Statement makes no mention of future uprating of the national insurance basic pension. Is it the Government's intention that uprating shall continue in future, as it has for many years past?
A number of aspects of the Statement are welcome. I may not have understood this correctly, but the position with regard to carers extends only to those who take up caring on a basis that interrupts their normal working lives. Am I correct in thinking that that arrangement does not extend to full-time carers in a single-earning family? The proposal does not apparently cover all carers. My understanding is that those who care part-time on a temporary basis, then resume work, account for only 16 per cent. of the total. Is it the case that all carers will benefit from the Government's scheme?
The Government refer to an annual pension statement. How will that work? We know only too well that pensioners who have recently retired under a defined contributions scheme have suffered badly because of the fall in the stock market and annuity rates. Some pensioners can expect barely half the amount they might have expected a year ago. If the Government are to make an annual pension statement, apparently telling people what they may expect in 20 years, given that such variations can occur in the space of one year, how will the Government produce a statement having any significant value? Will the Government guarantee in the far future they are forecasting that they will ensure in some way that people receive the pensions shown on their pension statement?
As to the so-called "stakeholder pension", it was generally supposed that that would be a government stakeholder pension. It now seems that it is a private system. In addition, it would replace SERPS. I am not entirely clear how that will work. The noble Baroness referred to it in an impromptu remark that does not appear in the Statement as "SERPS Mark II".
Baroness Hollis of Heigham: My Lords, I made that reference in connection with the state second pension, not the stakeholder pension.
Lord Higgins: My Lords, as I say, as regards the stakeholder pension, we appear to be talking about simply an enhancement, with greater regulation—that, of course, is welcome—with regard to the private provision of pensions. The Statement makes a number of assertions with regard to the fact that people will receive double what they would have received under

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SERPS. Are we to understand that there will be a greater subvention, and, if so, how will that work? Will it work by way of rebate or in some other way?
The most important point is that all of this concerns the future. We are told that it will be some time before the stakeholder pension is up and running, or indeed that the provision for those on incomes below £9,000, or between £9,000 and £18,500, will come into operation. Can the Minister give us some undertaking as to when that is likely to come into operation? In particular, can we be sure that the extra amount which people will pay in will ensure that they receive a pension—having made the sacrifice of paying in—which will be higher than the level of a means-tested benefit at the relevant time? That is a crucial point because the indications are that one would have to have a high pension indeed before that is likely to be the case. We have debated on many other occasions the problems as regards prudence and the ability to save.
This is a highly complicated Statement which we shall want to pursue in much greater detail. I hope that it will be possible for your Lordships to debate the matter when we have had more time to assimilate precisely what is involved in the Statement.
4.31 p.m.
Lord Goodhart: My Lords, we on these Benches can give the Statement a rather less grudging welcome than it was given by the noble Lord, Lord Higgins. Indeed, there is much in it that we welcome warmly. However, there are certain respects in which it does not go far enough. We would have liked a somewhat more ambitious scheme.
I start by mentioning the proposals in the Statement that we particularly welcome. We strongly welcome the minimum income guarantee as a way of ensuring, without excessive expense, that everyone will have an acceptable basic pension on which to live in retirement and will not have to rely on income support as at present. We believe that, certainly at first sight, the replacement of SERPS by the state second pension is an ingenious idea and a good one which will get over some of the previous problems of the interface between those on basic pension and those earning just a little over the lower earnings limit who would have had difficulty in building up anything adequate in SERPS or through a stakeholder pension. We therefore believe that that measure is to be welcomed.
We again warmly welcome the idea of improved provision for those who are unable to take paid work because of their caring responsibilities. We also warmly welcome the introduction of the stakeholder pension. It is clearly desirable that the Government should use their muscle to negotiate acceptable terms with the providers of stakeholder pensions which will enable the contributors to obtain much better terms for their pensions than would be possible if they were to take out individual pensions, with all the charges that they involve. Clearly, the Government can ensure that the terms on which stakeholder pensions are granted involve the minimum necessary level of costs. We also welcome the idea of accreditation for occupational pensions.
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I now mention some criticisms. First, we think that the Government should have gone fully, rather than partially, back to the pre-1988 system under which an employer can require an employee to belong to a scheme if it is accredited. We believe that the mis-selling disaster of the late 80s and early 90s was almost entirely due to the deeply mistaken action of the Thatcher government in allowing unrestricted opt-outs. Where there is an accredited scheme, because of the contribution which the employer makes it is frankly almost impossible for an employee to be better off outside that scheme. We therefore think that in general there should be a right for an employer to insist, in the employee's own interests, that the latter be a member of the occupational scheme.
Secondly, we think that the availability of stakeholder pension rebates should go up to the upper earnings limit and not stop at £18,500. This is intended to be a benefit for middle earners and what is called the "upper earnings limit" is really fixed at a level which certainly could not be said to be anywhere remotely near the "fat cat" level. We think such a measure would be an improvement as it would give people better rebates to invest in stakeholder schemes if the availability of the rebates went right the way up to the upper earnings limit and did not stop, as now, at £18,500.
We believe that the Government have "chickened out" of the essential element in stakeholder pensions, which is a compulsion to take one out. One can see problems in the marginal area; namely, that people who are earning a little over £9,000 should not be compelled to switch into stakeholder pensions, particularly when their incomes are variable and they sometimes earn less than £9,000. But for anyone above, say, £12,000, it would clearly be very much in their interests to switch into a stakeholder pension. We believe they should be compelled to do so because—this is a vital element—we think that employers should be required to contribute to stakeholder schemes, along with employees. Unless there is compulsion on employees to contribute, that simply is not possible. Clearly, enormous pressure would be exerted not to take out stakeholder pensions by employers on employees if that meant that an extra burden would be placed on the employer. However, we believe that all employers should either have their own occupational pension scheme or be required to contribute to an employee's pension scheme, whether a stakeholder pension or a personal pension. We believe that that could be phased in over a period of, say, five years without there being an unacceptable burden on employers who find that their non-wage costs increase.
We note that the Statement largely ignores the self-employed who are merely going to be the subject of consultation on further planning. We believe that every self-employed person should be required to have their own stakeholder pension, once he or she rises above a certain limit of earnings. Certainly, the position of the self-employed at the moment with regard to national insurance is highly anomalous. We believe that the position of the employed and the self-employed should be brought closer together. One element in that would

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certainly be the requirement for the self-employed—again, those earning above a certain limit—to take out a stakeholder pension.
We realise that this is a complex scheme. We shall have to consider it with considerable care and in much more detail than we have been able to do so far. We believe that it offers many improvements over the present scheme. To that extent, we give a warm welcome to it and congratulate the Government on coming up with some sensible and ingenious ideas in the scheme. However, it has not gone far enough and the various elements I mentioned are matters that we wish the Government had taken on board.
4.40 p.m.
Baroness Hollis of Heigham: My Lords, I thank the noble Lord, Lord Higgins, for his comments and accept the welcome given by the noble Lord, Lord Goodhart. First, I wish to apologise to the House in regard to the Green Paper. I asked my noble friends to check on the situation: apparently, the Stationery Office could not deliver it in time because a skip was parked in the way. Unfortunately no one managed to tell the Printed Paper Office. However, the Green Paper arrived at around 4 o'clock so I apologise to your Lordships. I realise how exasperating it must be, with a complicated and detailed Green Paper, if people do not have enough time to read it properly.
Although I wish to address the points raised by the noble Lord, Lord Higgins, I start with some wider remarks. We all accept that the partnership with the private sector has produced a pensions success story for those in secure and well paid jobs. That is undeniable and people have benefited from it. However, the lowest earners now cannot afford a pension because they do not have the income. Those in unwaged work are at the moment ineligible for pensions and those with a broken work record cannot have continuity of pensions provision. Of those who are self-employed, half are not covered by a second pension. Those who have moderate earnings and have taken out a personal pension have been hit by high charges. They have a well founded mistrust of the whole enterprise. So there is currently much that needs to be addressed, particularly for those who are low paid, self-employed, have intermittent earnings or are carers.
The noble Lord, Lord Goodhart, was generous in his recognition that the main thrust of the Green Paper seeks to provide security and opportunity for pensions provision for the low paid. For those who are well paid, there is no problem; they can afford to save and they do so. Perfectly proper tax privileges are associated with that.
The problem is that those who most need a decent pension to float them off poverty in old age are those who can least afford to pay for it. That is what we seek to do by a SERPS Mark II through the state second pension.
The noble Lord, Lord Higgins, asked whether we were moving to means-testing. No, on the contrary. The second state pension, SSP, will lift hundreds of
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thousands of people off means-tested benefits in their old age. If we did nothing, between one in two and one in three of all people now in work would find that when they retire in 2025 they will be on a means-tested benefit. Hundreds of thousands of those will now be floated off that by a second state pension. Those who need to remain on a means-tested benefit with the minimum income guarantee will find that the safety net is far more generous than currently. It is a safety net that we expect and aim to raise in line with earnings.
The noble Lord asked about funding costs. As noble Lords will see in the Financial Memorandum attached to the Green Paper, the initial cost is about £100 million a year. As he will know, with pension schemes the full cost builds up slowly over time. We expect there to be an additional cost of around £5 billion by the year 2050. To put that in its context, the noble Lord probably knows about the new inter-generational study comparing the US with the UK. What really matters is whether one is in a decent, adequately paid job, whether inflation is under control and whether productivity has been enhanced. If that happens and as a result the country's growth is secure, pensions can be well afforded. The inter-generational study estimated that deficits of that order could well be funded within modest expectations of economic growth.
The noble Lord asked whether we were committed to not means-testing the state old age pension. I can only repeat what was said in the Statement: it will remain a universal, non-means-tested benefit. It will therefore rise at least in line with prices, but if we add the income guarantee, we expect the total package to rise in line with earnings, as resources allow.
Lord Higgins: My Lords, I am grateful to the noble Baroness for giving way. The phrase is qualified by the use of the expression "over the long term". What does that mean?
Baroness Hollis of Heigham: My Lords, it means that we expect it to rise as earnings rise. In other words, we expect it to be a forecast. What we cannot do—and what I am unable to do at this stage—is to guarantee that every year it will be actuarially increased by whatever the earnings gap was the previous year. We expect it to rise broadly in line with earnings. There is no commitment to the equivalent of the Rooker-Wise amendment. The Chancellor makes those decisions and the expectation is that it will rise in line with earnings in the long term.
The words are clear in the Statement: we expect—the aim is for—the minimum income guarantee to rise in line with earnings so that pensioners will share in the general and increasing prosperity of the country. That is in the Statement and has been repeated today.
The noble Lord then asked about carers and whether they will be covered. All carers who are recipients of ICA, who are caring for people who have AA or DLA and who qualify for home responsibilities protection, or who are carers of children under the age of five will be credited into the scheme. In broad terms, the carers will receive about £1 a week in pension for each qualifying year of caring. There will be no limit on the number of

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years of caring which are treated in that way. I believe that that answers the noble Lord's question. In other words, a carer need not have been in the labour market if he or she has been caring throughout the whole of his or her working life. Under those conditions such carers would receive an appropriate credit. However, of course, in practice most carers are likely to be in and out of the labour market with rather more fluidity than that.
The noble Lord asked about full annuity rates. As he knows, those full annuity rates reflect the market and the market's expectation of medium to long-term interest rates. We know that the best guarantor of those is a low rate of inflation and tough control on inflation.
The noble Lord asked how the stakeholder pension would replace SERPS and in what ways it would be different from SERPS. The stakeholder pension will probably bring into its orbit the top two-fifths of current holders of SERPS, with the bottom three-fifths holders of SERPS likely to go into the state second pension. The stakeholder pension will be different from SERPS. First, it will be funded. Secondly, people can add to it as and when they wish to, including putting in other savings, possibly putting in an ISA or whatever is appropriate. If people are unemployed for up to five years, they can continue to pay in, perhaps through their savings or through a contribution from their spouse. It will be a money-purchase scheme, so it will be linked to the equity market which could and should in time give a good return. It may attract employers' contributions above and beyond the national insurance rebate. So in all those ways we believe that the stakeholder pension should, in the longer term, offer a better deal, above SERPS, for most people with earnings over about £9,000 to £12,000.
Finally, the noble Lord asked whether people would get a pension and whether we guarantee that the pension—I presume he means the state second pension—would be higher than a means-tested benefit? That would be true provided people had a full working credit, a full working record, but clearly their entitlement to the state second pension will depend on the number of working years. If they have only a modest number of working years, they may still be dependent on means-tested benefits, as now.
The noble Lord, Lord Goodhart, asked about compulsion and why we were not going back to the pre-1988 situation in which employers could require employees to become members of occupational schemes. That has been considered. As this is a Green Paper, it is a point that can be made again as part of a consultation exercise. However, most of us recognise that occupational pensions may not always be the most suitable pension package, particularly for temporary staff, contract staff, part-time staff or mobile staff. For them, a stakeholder pension may be a more appropriate alternative. We are determined that employers in that case, particularly small employers who may not have a decent occupational scheme, shall ensure full access to a stakeholder pension for their employees.
The noble Lord, Lord Goodhart, also asked about the self-employed. He is right that currently at least half of all self-employed people are not in any pension scheme.
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They can be vulnerable. We know that a proportion of self-employed people are very prosperous, but many others, about two-fifths, are on very modest incomes. Effectively, they pay themselves to do work with an average income of only about £8,000 to £10,000 a year. We are consulting on whether they should become eligible for the state second pension with appropriate adjustments to national insurance contributions as a result. But, for many, their business may be their best retirement pension and we do not want to imperil their cash flow by requiring them to make compulsory contributions at the expense of the survival of their business.
It is a difficult issue. As I am sure would the noble Lord, we would like to see all self-employed people with a secure old age. It is not immediately clear that compelling those who are on very low self-pay to pay into a pension is the right way to ensure that. However, we are consulting on the matter. If there is consensus that that is the way we should go, we shall.
I hope that your Lordships will welcome the Green Paper. Apart from a minimum income guarantee safety net which is more generous than we have had in the past, we suggest offering those on an income of £9,000 a year a state second pension which would be twice as generous as they would currently receive on SERPS. Anyone between the lower earnings level and the £9,000 figure would receive a flat-rate state second pension as though they were earning £9,000 a year. So there is a significant increase in pension provision for those between the lower earnings limit and £9,000; and a more generous scheme which gradually tapers out between the £18,500 and £20,000 figure.
Secondly, we are ensuring a stakeholder pension to make good the gap between on the one hand occupational pensions, which are relatively less flexible, and the insecurity and risk of personal pensions on the other.
Finally, in the Green Paper we are ensuring that those who remain within the more traditional occupational pension will have the flaws of the 1995 Pensions Act—I put it another way: the amendments which the noble Lord did not accept at the time—reviewed in terms of regulation, consideration of a central discontinuance fund, consideration of the minimum funding requirement, and the like, and increasing the strength of the role of trustees, including putting a pensioner on the board of the larger pension schemes.
I hope that your Lordships will welcome the Statement which proposes a more generous safety net, a good lift out of poverty for those on low earnings, an increase in pensions for those on moderate earnings and better regulation for those on higher earnings. I think that we have done something here that is really important and valuable to our people.
4.52 p.m.
Baroness Castle of Blackburn: I am sure the Minister will be the first to agree that this is a detailed and complex Statement. Therefore I must not be accused of being begrudging if I approach it cautiously, in particular, as, to coin a phrase, the devil is in the detail.

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I have had the detail put in front of me in the form of a Green Paper only a few moments ago. I know that the Minister has tried hard to be as frank and honest with the House as possible. But many doubts and questions must linger in our minds until we have had time to discuss matters more thoroughly and to think over the implications of some of the remarks she made.
Perhaps I may give one or two examples. Let us take the earnings link. I am glad that the Government have recognised the strength of our argument that to uprate a pension in line with prices, and not with earnings if those are leaping ahead of prices, is to condemn that pension to a slow death. So we are glad to know that the minimum pension guarantee is to be linked to earnings. Its uprating is linked with the movement of average earnings. However, the noble Baroness must forgive us if we are a little less than over the moon because she qualified the Statement with phrases such as "our aim is" and "we expect to". There is no exact chronology, and no exact commitment on a large number of these matters.
The fact then remains that the basic state pension—we are told that it remains a universal non-means-tested benefit—is not to be uprated in line with earnings but may be with prices. In other words, it is intended deliberately that it shall wither on the vine and disappear; and we shall be left only with the means-tested pension. That is one of the Government's aims. I am sure that the Minister, who is an honest and honourable person, will accept that that is what will happen.
My second worry in a number of queries is about the "stakeholder" pension. The word is somewhat dazzling. It sounds so noble. We all have a stake in the community, and that kind of thing. But what exactly what does it mean? I am still not clear how it is to be financed. I agree with the Minister that those who have a good occupational pension scheme are lucky people; and that firms should be encouraged to cover their employees with such a scheme. We always said so in drawing up the original SERPS policy. If the scheme is to be a form of occupational pension scheme for those who do not happen to enjoy one at present, presumably the employer and employee will share the funding. Is the noble Lord anxious to interrupt me?
Lord McIntosh of Haringey: My Lords, I am very reluctant to interrupt my noble friend. However, she has taken four minutes out of the 20 minutes allowed for all Back-Bench questions and answers. I must ask her to come to an end.
Baroness Castle of Blackburn: I am just explaining why some of us will be cautious in our reception. Others have had a good fling and I do not see why I should not do so as well. It is not my fault that you limited us to 20 minutes.
I wish to know how the proposal is to be funded. If it is to be funded, as Margaret Thatcher always visualised people funding their contribution to personal pension
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schemes, by generous rebates from the national insurance fund, you are undermining the finances of the fund on which SERPS depends.
I have one final query. We are told that there is to be an annual pensions statement. Can there therefore be a statement of clear choice to put before the people of this country: keep alive the state pension scheme on a pay-as-you-go basis, and tell people what they would have to contribute to obtain a defined benefit. We are not told that the stakeholder pension will be a defined benefit.
I leave those questions with the Minister with the promise that I shall return again to the matter.
Baroness Hollis of Heigham: My Lords, I shall try to be brief. I realise that other noble Lords wish to speak.
Apart from many other achievements, my noble friend was responsible in 1978 for introducing SERPS. The difficulty with SERPS, as we know, is that because it is earnings-related, those who earn the least receive the least. That is why with the state second pension we seek to rebalance very heavily in favour of those earning under £9,000 and, more generally, those earning under about £12,000 or £15,000 a year.
My noble friend's specific question on the old age pension was why we were not effectively linking that with earnings. If we did so, those who were poorest would receive nothing because it would come off their means-tested benefit. Those who were more generously off, including, I suspect, most Members of your Lordships' House, would gain every penny. I do not believe that that is necessarily the most appropriate public expenditure.
My noble friend's second question was how the stakeholder pension was to be funded. The stakeholder pension will be available to those employees for whom an occupational pension is currently not available. It is primarily an alternative to a private pension. It will be financed by more generous rebates, and, we hope, also by employers' contributions. Research suggests that between one-third and one-half of employers say that they are willing to contribute to a stakeholder pension. It will be based on affinity groups. It will be cheaper, better regulated and within the framework of trust law, unlike personal pension schemes now. I hope that my noble friend will recognise that the Green Paper meets a real problem in the pensions world.
Finally, my noble friend asked whether the statements to go out to people will offer a clear choice between the state second pension, which is pay-as-you-go, and the stakeholder pension, which is a funded scheme. Clearly, people will have that choice. I shall ensure that my noble friend sees the papers as and when they are available. Obviously, a good deal of this will be part of

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the framework to be set out in legislation in due course. My noble friend will no doubt then be able to move amendments to that effect, should she so choose.
Lord Clark of Kempston: My Lords, while everyone agrees that any incentive for a second pension is welcome, can the Minister explain when either the stakeholder pension fund or—
Lord McIntosh of Haringey: My Lords, how much of the Statement did the noble Lord hear? He was not here at the beginning of the Statement.
Lord Clark of Kempston: My Lords, I apologise for that.
Lord McIntosh of Haringey: My Lords, I do not believe that the noble Lord should intervene when he was not here for the Statement.
The Earl of Clanwilliam: My Lords, the noble Baroness, Lady Castle, has asked the question that I would have asked. First, is it the case, as the answer suggests, that the stakeholder pension will be compulsory and will have to be provided either by the employer or the employee or both? Secondly, where the sums are under £6,000 a year, from where will the money come? I assume that the money is to come from the national insurance contributions—yet another compulsory contribution. Thirdly, how will the ISA compete with the stakeholder pension?
Baroness Hollis of Heigham: My Lords, there is no greater compulsion in what we propose than under the existing arrangements, except that there will be more and it will be better. At the moment, anyone who is in work who pays national insurance contributions if his earnings are above the lower earnings limit can either use his rebates to enter a private pension scheme or come within SERPS. That basic structure remains. But for those national insurance rebates we shall offer a better quality scheme, whatever the income, and a more generous scheme, particularly for those who earn less than £18,500 a year. Stakeholders will be subject to as much or as little compulsion as with any other pension scheme that is now on the market. If one is in work and pays national insurance, one pays for one's pension.
As to the relationship with ISAs, stakeholder pensions are not in competition with them. The ISA may be a more appropriate savings vehicle. For example, one could put one's ISA money into a stakeholder pension if one wished particularly during periods of unemployment. We see these as complementary products in the marketplace.
Baroness Pitkeathley: My Lords, the noble Baroness and I have worked so long together on this issue that she will know with what pleasure I rise to welcome the recognition that the responsibility for caring, which I remind noble Lords is given willingly and with love, works against the ability of carers to provide for their own old age. Enabling carers to share in rising prosperity is proof that the Government recognise the
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enormous economic contribution that they make and the loss of income that they suffer as a direct result of their caring. This is good news since carers are in the lowest income group and in future they will find themselves in a more beneficial situation. That, together with the national strategy for carers on which the Government are working, will make a real difference.
I also welcome the emphasis on telling people where they stand because the mysteries and complexities of pension provision create huge difficulties. Will my noble friend assure the House that in addition to the consultation programme that I am sure she will undertake with carers' organisations and those for people with disabilities, she will involve them in providing information about the new situation? Carers are notoriously reluctant to claim anything. It is extremely important that we let them know that the new provisions are available to them.
Baroness Hollis of Heigham: My Lords, I am very glad that my noble friend was able to be here and to make a contribution. She has done so much to bring the situation of isolated carers out into the light so that we recognise the quality of their unwaged work. For the first time, we are now able to do that. At the moment, people can get credits on their basic old age pension, but they cannot take them into SERPS. As a result of what we propose today, they will be able to take those credits into the state second pension. We expect about 2.5 million carers to begin building up credits from the inception of the scheme, which we expect to be in April 2002. By the year 2040, at least 4 million people, mainly women, will have their pensions augmented by the carer's provision. We expect the gain to be almost £50 a week in today's terms, which represents a very significant increase. Carers who have given up the opportunity to work will not port poverty into their old age.
My noble friend asks whether we will be able to work with the voluntary organisations to ensure that carers have full knowledge of all the options open to them. I am very happy to confirm that not only do we want to do that, but we need to work with those organisations, particularly the Carers National Association, to make sure that carers know what they are entitled to get and that they claim it.

Youth Justice and Criminal Evidence Bill [H.L.]
5.4 p.m.
Second Reading debate resumed.
Lord Warner: My Lords, as chairman of the Youth Justice Board for England and Wales, I start by saying that the board strongly supports the reforms to the youth courts set out in Part I of the Youth Justice and Criminal Evidence Bill. In his excellent maiden speech, the noble Earl, Lord Rosslyn, drew attention to the pioneering work on restorative justice by Thames Valley Police.

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That work has been led by the noble Earl's chief constable who is making a distinguished contribution to the work of the Youth Justice Board.
The creation of the new referral order will provide an opportunity to undertake positive interventions to prevent offending with those youngsters who appear before a court for the first time and plead guilty. At present it is difficult, if not impossible, for youth courts to develop individually-tailored packages of interventions designed to stop offending.
By using the new referral order, the youth courts will be able to get the new youth offender panels to agree detailed programmes for change with young offenders and their parents. The embodiment of those programmes in a contract means that young offenders will have to face up to their responsibility for the harm that they have caused to victims. They will be committing themselves to change. Often this is difficult for some young offenders. There will be opportunities for victims to play a part in this process if they wish. Some victims will find it helpful, as I believe the experience on restorative justice within Thames Valley has shown.
The new contracts are no soft option. Clause 8 of the Bill makes it absolutely clear that youth offender contracts are likely to have many demanding provisions. The contracts can last up to a year. If youth offenders decline to reach agreement or fail to stick to them, they can be sent back to the courts for sentencing. That is as it should be if the new arrangements are to maintain public credibility.
It is right that the new arrangements should start with young offenders who appear in court for the first time and plead guilty. But if they are successful, as I expect them to be, we should not shy away from extending them to other young offenders. I welcome therefore the provision in Clause 2 that gives the Home Secretary power to extend referral orders to a wider group of young offenders at a later stage.
The Youth Justice Board welcomes the Bill's provision for the leading role to be played by youth offending teams in the work of youth offender panels and the drawing up and supervision of youth offender contracts. These teams are an important part of the new local infrastructure in the fight against crime. They are being piloted in nine parts of the country now and by April 2000 they will be fully operational across England and Wales. The board will produce national standards for the teams and devise arrangements for monitoring and inspecting their performance.
The managers of youth offender teams will be critical to the success not only of the youth justice changes in this Bill but of the wider youth justice reforms under the Crime and Disorder Act. As local areas make their appointments in the coming months, we hope that they will give their managers a high status and direct access to local authority chief executives and other chief officers so that the services and measures needed to stop youth offending locally are provided. For its part, the Youth Justice Board has decided that there should be a national training and development programme for all the
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managers of youth offender teams. We shall make sure that that training adequately covers their duties under the Bill.
I now comment on Part II of the Bill, which is concerned with protecting vulnerable witnesses. In doing so, I draw on my experience as a director of social services and of leading a number of inquiries into children's homes and a long-stay hospital for people with learning disabilities. I have had to sack staff after inquiries into the sexual abuse of young people and people with learning disabilities. Those inquiries had a lower standard of proof than a criminal court, but it was often difficult to get people to take seriously the evidence of children and those with learning disabilities. Too often I have seen the same culture of disbelief in the criminal justice system. The painstaking investigations of police officers and social workers can too often come to nothing because of the insensitivity and rigidity of the criminal justice system.
There are particular shortcomings in respect of sexual offences. A significant proportion of rapes and indecent assaults are committed against children. The Home Office has estimated that half of those convicted of rape are convicted of raping a child aged under 16. We know that many paedophiles go undetected for a long time and abuse large numbers of children. Evidence by the charity, Kidscape, in 1995 suggested that each paedophile abused on average about 240 children before being caught. It is also worth bearing in mind that one in three children who reports sexual abuse is under the age of eight, but prosecution in such cases is 5 per cent. or lower.
There has been a disturbing decline in the number of successful prosecutions for sexual offences against children, as Home Office statistics have shown; for example, in 1985, there were 633 offences of gross indecency with children under 14 notified to the police and a 42 per cent. conviction rate. In 1995, the number of offences doubled to 1,287, but the conviction rate plummeted to 12 per cent.; all this in a period when it should have been easier for the courts to use video evidence from child witnesses.
It is nearly 10 years since the Pigot Committee made its recommendations on the admissibility of video-recorded evidence to the noble Lord, Lord Hurd, when he was Home Secretary. But despite legislative action on some of the Pigot recommendations, the criminal justice system has been slow to adopt those important reforms. A Home Office Police Research Group Report in 1996 found:
"There now appears to be considerable reluctance on the part of judges to allow video interviews to be used".
I am only too aware of the impact on an abused child of having to give evidence in a hostile court environment. Imagine what it must be like for a 10 or 11 year-old who has been sexually assaulted to go over that experience again in court and then not be believed at the end of it. If properly implemented by the courts, the measures in Part II of the Bill will go a long way to improve the situation of child witnesses, particularly the provision on admission of video recorded interviews as evidence in chief.

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I know that some in the judiciary do not consider that these measures are necessary and believe that the courts have all the powers they need to intervene to protect vulnerable witnesses. I ask those judges who hold that view to look very seriously at the evidence I have set out of court performance in the past decade and to consider honestly whether the evidence suggests that abused children have had fair treatment as witnesses. Too many offenders have gone free and too many children have suffered unnecessary trauma as a result of the shortcomings of the criminal justice system. Raped women's previous sexual history has been allowed to be trawled inappropriately through the courts.
The measures in Part II will put beyond doubt Parliament's determination that vulnerable children and others who have been abused should be given adequate protection by the courts but without detriment to the rights of defendants. For those changes to work in practice, however, they will need to be supported by effective training programmes that all judges attend to ensure that the will of Parliament is applied in practice.
Some authoritative voices concerned with the protection of children would go further than this Bill. Sir William Utting, for example, made more radical proposals in his 1997 report of the review of the safeguards for children living away from home. However, I believe that the Government have struck the right balance with the measures on vulnerable witnesses in this Bill, provided that the courts use them properly.
Part II of this Bill is about fairness: fairer treatment of abused children; fairer treatment of people with learning difficulties and of women who have been raped. Those groups have often been poorly served by our criminal justice system and that is why organisations like Victim Support, of which the noble Lord, Lord Windlesham, is a distinguished president, have given these measures such a warm welcome. I hope they have the full support of this House.
5.14 p.m.
Lord Bingham of Cornhill: My Lords, there is much in this Bill for which to be grateful. If your Lordships had any doubt about that, I feel sure that it would have been dispelled by the lucid and compelling speech which we had the pleasure of hearing from the noble Earl, Lord Rosslyn, whose informed experience will undoubtedly enrich our future deliberations.
I hope that I shall not be thought ungrateful if I confine my remarks to two sets of provisions which cause me serious misgivings. I fear that neither will cause the Minister surprise. They are both to be found in Part II in Chapters II and III. One of them is headed,
"The protection of witnesses from cross-examination by accused in person",
and the second is headed,
"Protection of complainants in proceedings for sexual offences".
At the risk of stating the obvious, I remind the House of the background. We are dealing with a situation in which a defendant, usually, but not always, a man, is accused of what may be a very serious offence against a complainant, who is usually, but not always, a woman. The situation is by definition one in which the defendant
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says that he did not commit the crime. Therefore, there is a trial in order for the court or the jury, and no one else, to decide whether the defendant did commit the crime.
If convicted, the defendant is likely, if it is at all a serious crime, to go to prison for a very long time because the courts take a serious view of offences such as that. It is plainly right that everything which can reasonably be done to encourage victims to disclose genuine complaints should be done. It is plainly right also that everything which can reasonably be done to minimise the trauma of attendance at court and giving evidence should be done. I suggest that no one questions those propositions for one instant. I certainly do not.
But the paramount concern in that context must be to ensure that the defendant enjoys a fair trial, recently described as the birthright of every British citizen. No doubt the Minister is right to say that that is not an absolute right, but he went on to say that there were others who have rights coterminous with those of a defendant. I suggest that at a criminal trial no one has rights coterminous with those of the defendant because it is he alone who is at risk of being punished by the state.
Clause 33 imposes an absolute prohibition on any person charged with a sexual offence from himself asking any question of a complainant with regard to the offence charged or any other offence. That is usually not a problem. The defendant is offered criminal legal aid, which is almost always free, and the vast majority of defendants, as one would expect, take advantage of it.
The situation with which we are concerned arises only when a defendant has chosen to act in person, perhaps because he distrusts or dislikes lawyers, as many people no doubt understandably do, or perhaps because he thinks he can do the job better himself.
As I have said, that is usually not a problem. Indeed, there are only two cases in which there has been a problem and both have been mentioned by the Minister. In the first, the defendant was named Ralston Edwards. That case, which was, I believe, about two years ago, received very wide coverage and there is no doubt that the defendant abused his right as a defendant representing himself. He dominated, humiliated and abused the complainant in a way that was utterly abhorrent and totally objectionable.
The case received wide coverage and that may have given the idea of emulating this feat to the second individual involved, Milton Brown. He indulged in the same behaviour. The trial judge made great efforts to control the trial and the defendant's behaviour but felt that he lacked the powers to be as robust as he would have wished and was doubtful as to whether the Court of Appeal would support him if he acted in the robust way that he would have chosen.
The defendant was convicted and appealed unsuccessfully. In the course of giving judgment, the Court of Appeal indicated, in what I hope were clear and unambiguous terms, that judges had full power and authority to take command of a situation such as this and prevent the unacceptable treatment of a complainant by using screens and a number of other methods

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discussed in some detail in the judgment. The court made plain that it would support a judge who acted in a robust way unless, of course, an injustice was shown to have resulted. That was in May 1998. There has been no repetition and there are no other instances of what it is here sought to prohibit. I submit that it is surely wise to wait and see if a further remedy is needed before depriving judges of the discretion to control proceedings in their courts—fortified by that judgment—in the way that they think best.
I suggest that the proposed provision has two dangers: unjust conviction and unjust acquittal, both almost equally undesirable. There is a risk that juries may wrongly convict because they have not heard the complainant cross-examined. There is a risk that juries may wrongly acquit because they will feel that the defendant has not had a fair crack of the whip. That danger is not cured by Clause 37, which enables the court to appoint a legal representative chosen by the court to cross-examine the complainant. Of course, it is fine if the defendant, who has been obdurate and intransigent up until then, has a conversion on the road to Damascus and becomes co-operative and communicative with the legal representative appointed without his wishes. But if he maintains his position, persists in his desire to cross-examine the complainant himself and declines to give instructions to the legal representative, the latter's task becomes impossible. The legal representative will not know which parts of the complainant's evidence he should be challenging and he will not know the case that he is intended to put. It is difficult to know what the warning to the jury under Clause 38 will achieve unless it is a simple encouragement to acquit. So, on that point I have misgivings.
I have similar misgivings about the provision in Chapter III. I am sure that your Lordships will know that Dame Rose Heilbron, who brought unrivalled experience of dealing with crime and family matters to the task, chaired an advisory group on the law of rape about 20 years ago. She and her group made a recommendation, which was accepted and enacted as Section 2 of the Sexual Offences (Amendment) Act 1976, applicable to rape trials. The provision states that, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial by or on behalf of any defendant about any sexual experience of a complainant with a person other than the defendant.
That strikes one as a good and well-designed provision. What more is needed? To answer that question, one must look at paragraph 9.64 of the consultation paper Speaking up for Justice. That states that the working group reported overwhelming evidence that the present practice in the courts is unsatisfactory and that the existing law is not achieving its purpose.
If there is such overwhelming evidence, the consultation paper is noticeably reticent in giving the details. It refers to some research carried out nearly 10 years ago which shows that 75 per cent. of applications made under that section succeed. That may mean that
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applications are lightly made and lightly granted, but it may equally mean that applications are cautiously and prudently made and properly granted, in the main.
There is a great deal of anecdote about this, but if one is to add to the mountain of it, I can tell your Lordships that at a Judicial Studies Board seminar for judges who specialise in this field, the suggestion that this provision was disregarded provoked a vocal expression of strong disagreement. The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well—I emphasise "may well"—be relevant. So, to recognise is not to open the door to abusive, insulting, irrelevant cross-questioning, which, in any event, is likely to repel any decent modern jury, but to recognise what many sensible decent jurors would consider a question that may be relevant in some cases.
The Criminal Procedure (Scotland) Act 1995 restricted the questioning of complainants in such cases. Parliament went on to provide that the questioning or evidence could be allowed if the court were satisfied that it would be contrary to the interests of justice to exclude it. That is provided for in Section 275(1)(c) of that Act. In other words, Parliament gave the Scottish judges a limited discretion to be exercised in the interests of justice. It is a melancholy reflection on parliamentary confidence in the judiciary of England and Wales if they are to be denied a similar, very limited and carefully defined discretion.
I hope that the Minister, who has promised to be open minded and has been so in the past, will be willing to think again on both these points.
5.28 p.m.
Baroness Macleod of Borve: My Lords, it is now my turn to follow some brilliant speakers. I also have the honour of following the noble and learned Lord the Lord Chief Justice and my noble friend Lord Windlesham, who was chairman of the Parole Board when I was a member—and a very distinguished chairman he was, too. I should also like to mention the noble Lord, Lord Warner. I listened with great interest to all that he had to say and I shall read his speech.
I must disclose an interest in the Bill. For 20 years I was a member of the lowest tier of the judicial system, the magistracy, dealing with both adults and juveniles. I was a chairman for some time. I apologise to the noble Lord, Lord Williams of Mostyn. I was present below Bar but could not get into the Chamber while he was speaking. I retired from the Bench when I had to move house. I am pleased that I have not been involved in the Bill because it appears to be very complicated and full of repetition. It is so difficult to understand that I fear for those magistrates who must try to implement what is undoubtedly intended to be good and worth while legislation.
Prevention is always better than cure. Part of the Bill is related to the prevention of crime. The way in which parents bring up their children creates adult men and women. If parents allow their children to engage in

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crime, we shall have more and more criminal men and women. Sometimes parents go to court and try to deny the charges brought against their children. I remember only too well a father appearing for the fourth time with his son who was committing burglaries. Indeed, the father had pushed the son through the lavatory window in order to burgle. When the son appeared before me for the fourth time, I asked, "Mr. Brown, what are you doing here again?". He said. "Well, your Majesty, I am trying to keep him out". The father somehow thought that I would be pleased to be called "your Majesty". How wrong he was. If the referral system had existed in those days, we might have kept that young man on the straight and narrow path. It would have been a gamble, but with a father who pushed him through windows in order to burgle it would have been difficult for him to grow up "straight".
I turn to parental advice and the way in which parents bring up, drag up and push up their children, and to local authorities and schools. I dealt with many young people when I was a member of a Bench on the outskirts of London. There were five courts sitting five days a week and it was difficult to keep a proper balance between all the juveniles in the area. It was a good area and on the whole they turned out to be reasonable people. I wish to make a serious comment about the publicity aspect, which has not yet been mentioned. So many parents take great pleasure in going to work following their child's court appearance and bragging about it. They say how clever little Tommy was to have stolen so much money, videos or whatever. If the child's name appeared in the local press the parents would be even prouder. Therefore, it is important that nothing about such a court case is reported. The Bill makes it clear that reports of such cases in the press should not be allowed.
I was interested to hear my noble friend Lord Windlesham say that there were to be four youth offender panels in London. I had not appreciated that. Who will the members be? We have heard that they will comprise a social worker, a policeman and various others, but it is important that local people should know exactly who the members are because they will have great influence on the children who are sent before them. The panels are an excellent idea and have operated in Scotland for some time—not with universal success, but perhaps we shall be able to improve on the system.
The noble Lord, Lord Warner, spoke of reparation. I know that the victims of burglary or theft—you name it and I can tell you about it—cannot bear to see those who have committed the crime. The defendants dislike being forced to go to court and to say they are sorry—of course they are not and they pretend—so the requirement for that kind of reparation is wrong for children.
There is a great deal in the Bill that is right, but there is much unnecessary repetition. I suggest that there is a lack of sound common sense, which is all that we had to go by in my day. I wish the Bill well. When it is implemented it will, with luck—and luck will have to be on our side—be of great benefit to juveniles in this country. I hope that it will be successful.
5.38 p.m.
Lord Mackenzie of Framwellgate: My Lords, first, I apologise for the quality of my delivery tonight. I have contracted a heavy cold—my father would have said that I probably drank from a damp glass last night! I congratulate the noble Earl, Lord Rosslyn. on his maiden speech. In my previous existence as president of the Police Superintendents' Association he was, and perhaps still is, one of my members. I congratulate him on an excellent contribution. I hope we hear from him again in the future.
I welcome the Second Reading of the Youth Justice and Criminal Evidence Bill. The Government White Paper, No More Excuses, was aptly named. For years we have been turning a blind eye to crimes committed by juveniles in our communities. Caution after caution has been given by the police and the word has got around that if you offend and are unlucky enough to be caught, nothing much will happen to you. That is the worst possible signal to send to youngsters who are, quite naturally, testing the boundaries of acceptable behaviour, as, indeed, we all did as youngsters. It is part of growing up.
The youth justice provisions of the Bill follow on from the ground prepared by the Crime and Disorder Act 1998, giving effect to further reforms of the youth court. The new sentence of referral to a youth offender panel is not a soft option and is preferable to the continuing cautioning regime, to which I referred earlier. Anything which makes young people take responsibility for their anti-social behaviour is to be welcomed.
Talking to ordinary people in communities, as I do regularly, one sees that their complaint is not concerned with violent bank robbery, rape or murder. It is more likely to be about the fear caused by gangs of youths blocking footpaths, vandalising property, swearing or generally causing a nuisance. Indeed, the cost to the community of juvenile crime was highlighted this week in the excellent report from NACRO, Wasted Lives, which tells us, for example, that each young offender, on average, has committed criminal activity costing in the region of £75,000. If there are 2,500 youngsters in custody that is something like £190 million. So there is a financial interest in stemming this problem.
In essence, we are talking about bringing discipline into what, quite often, is an undisciplined life. Under this Bill the youth offender panel will work with the offender, as I understand it, and establish a programme of behaviour for him or her to follow. We all work better with a plan, a sense of direction and, of course, pride in achieving goals. The principles governing restorative justice are extremely important because they involve goals: for example, restoration to the victim, reintegration into the law-abiding community and taking responsibility for the consequences of offending behaviour.
I remember the shock many years ago on joining the police of having to make bed packs in the dormitory, drilling on the parade square, attending mock incidents, taking command and being required to give evidence

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about such incidents in the formality of the courtroom before people like the noble and learned Lord, Lord Bingham of Cornhill.
I am sure that those of your Lordships who were in the services will share with me the sense of team spirit, camaraderie, pride and a sense of family that were felt. It is precisely the sense of family and in many cases the fact of family that is missing from many young offenders' lives. It is hoped that the new sentence of referral to a youth justice panel will assist in bringing about self-discipline, so desperately needed by those who stray into criminality.
In my previous life, I continually drew attention to the fact that we do not treat witnesses in courts properly. I am on record as using the analogy of a football match. We can send off a jury member or two, replace counsel or even the judge, but without the witness the game has to be abandoned. That is why it is so important that the judicial system treats witnesses fairly and values them. Many police forces—I think all police forces—have elaborate witness protection schemes in serious cases, which are costly but essential in order to see that justice is done. Justice is just as important in less serious cases. We all know the difficulties encountered by witnesses who are youngsters and those suffering from mental and physical disorders.
I have talked of the special stress of victims who have to confront their assailants in the courtroom, particularly in sexual-attack cases. If a person falls into a particular category, it is right that that is a matter for the court to decide. The special measures in the Bill will help the determination of the truth, which surely is essential to justice.
Finally, I want to comment briefly on the special plight of victims in sexual cases. As I said in the debate on the gracious Speech, the police have improved immeasurably the way in which they deal with alleged victims of sexual attack. I said then, and I say again, that I wish the same could be said of the courts and the lawyers. That is why I welcome the provision in the Bill placing limits on the circumstances in which information on the previous sexual behaviour of alleged victims can be asked for or presented to the court.
A woman is entitled to the protection of the court. Her previous lifestyle or activities not connected to the alleged offence should not make her less capable of being raped or assaulted. In my judgment, that will enhance the provision of justice.
Similarly, rare though such cases may be, surely it is right that the Bill now prevents the accused from cross-examining personally the alleged victim in certain types of cases, particularly those of a sexual nature. We have heard cases of such cross-examination being used further to humiliate and distress alleged victims, who have already been through the harrowing ordeal of the attack itself and relaying the facts to the authorities. I believe that most like-minded people will see that as a sensible move to protect the vulnerable.
The noble and learned Lord, Lord Bingham, said that judges now have a direction and would protect victims in future. That may well be, but it is Parliament's duty,
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where it sees lapses by the judiciary, to put matters right. That was certainly the basis of the Crime (Sentences) Act 1997. I see nothing wrong with Parliament occasionally doing the job that the judges in those cases perhaps should have done. Protection of witnesses is simply too important to be left to chance. Without witnesses, justice cannot be done. I welcome the provisions in the Bill.
5.47 p.m.
Lord Ackner: My Lords, I put down my name to speak in this debate for two short and simple reasons: first, to demonstrate that I can make a short speech and, secondly, to take pleasure in agreeing with my noble and learned friend the Lord Chief Justice, having strongly disagreed with him last night—although I was in good company, as his judges in the High Court and the Court of Appeal also disagreed with him—and I had the support of the former Lord Chief Justice, the noble and learned Lord, Lord Lane.
Turning to the merits of the provisions, I shall deal with the two points raised by my noble and learned friend. The first is the prohibition on cross-examination by a defendant in person. Rape is a terrible crime. It is a difficult crime to prosecute because two features are sometimes forgotten. The definition requires the prosecution to prove that the defendant has had unlawful sexual intercourse with a woman who, at the time of the intercourse, does not consent and at the time he knows that she does not consent to intercourse or is reckless as to whether she consents to it. That introduces a subjective test as to what was in the mind of the alleged assailant.
The majority of rape cases are known as "date rapes"—that is, allegations which concern a defendant who has been on intimate terms with the complainant. It may be that they were husband and wife, boyfriend or whatever the situation was. It is oath for oath. Special rules have been provided for rape cases. First, anonymity is given to the complainant: it is not given to the defendant. Secondly, there are restrictions on questions that go purely to credibility which do not exist as regards other offences. Thirdly, the obligation to give a warning where there is no corroboration has gone. I am anxious that, by implication, we do not reverse the onus of proof.
There has been constant reference to victims of rape. That presupposes that the complainant is right and that the defendant is guilty. That is a danger which inevitably can arise because of the high acquittal rate which occurs with these offences. One overlooks that the onus of proof is very heavy. The jury has to ask itself, having merely heard in most cases oath against oath, "Has the prosecution satisfied me so that I am sure that the offence has been committed?". I have no doubt that the jury is worried by the very substantial period of imprisonment which will be imposed if it convicts. Therefore, I suggest that this prohibition is undesirable.
I suggest that it is an absurdity to say to a man who has lived with a woman for several years and who is faced with an allegation which he considers to be bogus and has been made up out of spite or whatever it may

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be, "You may not ask any questions of your wife or girlfriend". It is an absurdity and a denial of an elementary principle of justice. If the defendant shows that he is going to cause difficulties to the way in which the prosecution is conducted by his attitude to cross-examination, that can be dealt with quite conveniently in the absence of the jury by the judge discovering what exactly are the issues to which the cross-examination is directed and then warning the accused that he must be confined to those issues and that if he does not do so, he will be deprived of the right to cross-examine. But as long as he can cross-examine properly, there is no reason why he should be restricted. In the majority of those very few cases where the defendant is in person that occurs. As my noble and learned friend the Lord Chief Justice pointed out, there have been only two cases which have given rise to this publicity.
I pass to the second category of protection which is to be provided and that is an embargo on the extent to which the court in its discretion may allow cross-examination as to the attitude to sexual relations shown in the past by the complainant. I believe that your Lordships will accept that one of the most experienced practitioners in this field is the noble Baroness, Lady Mallalieu. In the debate on 22nd June 1998, when we were considering the Home Office report, she said,
"If cross-examination by a barrister is insulting, bullying, aggressive or too long, judges can and in my experience certainly do intervene to stop it. Contrary to what has been said, in the 28 years or so that I have been in criminal practice, it has not been my experience that unnecessary or irrelevant cross-examination about previous sexual history is allowed. Indeed, judges today take the greatest care to ensure that the reasons, the nature and the extent of the cross-examination are explained before they will allow any questions of that nature to be asked. I question therefore the need for change in that respect. It is necessary in each case for the specific facts which led to the request for those questions to be asked to be explored by the court".—[Official Report, 22/6/98; col. 102.]
I invite your Lordships to an observation made in the same debate (at col. 103) by the noble Lord, Lord Thomas of Gresford. He said:
"When there is political pressure to restrict the independence and the discretion of the trial judge, there lies danger".
I end with one final reference. I go back to the suggestion that a person be prohibited from cross-examination. I received briefing material for the debate to which I have drawn attention from Women Against Rape. It is headed:
"Re: question from Lady Byford to be debated in the Lords on 22 June proposing to remove the right of defendants accused of rape from cross-examining the witness".
The opening sentence is:
"We strongly oppose this proposal, which was also put forward in the recent Home Office report on vulnerable and intimidated witnesses … This change is not in victims' interests, nor what most victims have demanded".
It continues:
"Removing the right of men accused of rape to defend themselves would not change the way victims of rape are treated in court by barristers, who are routinely allowed to ask irrelevant questions about victims' medical and sexual history … The problem is not who asks the questions but which questions they are allowed to ask".
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The final sentence is this:
"The experiences, needs and demands of rape survivors rather than the agenda of opportunistic and populist politicians and the media must frame the public debate and changes in the law".
5.59 p.m.
The Earl of Mar and Kellie: My Lords, after the scrutiny of the Crime and Disorder Act in the last Session, it is good to be debating this Bill which puts flesh on the bones of what was approved at that time. My interest in the Bill lies in Part I and Schedule 1 and, indeed, in Chapter IV of Part II—or, to be more obvious, the youth offender panel system and the restriction on reporting, which also extends to Scotland.
I was anxious last Session to ensure that useful portions of the Scottish children's panel system were incorporated into the proposed youth justice system. I suspect that, on occasion, I sought to substitute the whole of Part III of the Social Work (Scotland) Act 1968 into the Bill. My excuse for such over-enthusiasm is that I was a social work student in 1968 and that this legislation accompanied me down the slipway into my professional life.
I also acknowledge that the children's panels deal with children in need of compulsory measures of care for reasons other than offending. It is fair to say that that is a far wider remit than the youth offender panels will have. Therefore, I am looking at this Bill with great interest as its provisions are clearly much needed in England and Wales. I am now content with the idea that systems for dealing with youth offending within the United Kingdom can be different—it is part of being a developing, diverse and fair union-state—so long as the systems are effective. This effectiveness has to work both for the young person as well as for the victim, those affected and the health of the community of which the young person is supposed to be part.
I like the emphasis placed on referral orders being imposed on the first occasion that the young person comes before any court. In far too many cases the tendency to be reluctant to put a young person into the court system has led to them being let off too often. That sends an unhelpful message to the young person and may, in reality, be the umpteenth time that he or she has got away with it. So a referral order as part of the first appearance is positive. But I am concerned that the referral order should not be recorded as a conviction. However, I would allow the conviction to be recorded subsequently if there were further offences after the referral order has been completed. It is reasonable to allow some protection to youthful reputation if the effort is made to remedy the situation, and it is also reasonable that that should be forfeited in the event of persistence with offending behaviour.
The time it takes to get a case into court will continue to be critical. There is nothing like a rapid appearance in court to bring home the direct consequences of offending behaviour. At present this is only achieved for those appearing from custody. Here the children's panel wins hands down. A children's hearing can be convened in less than 24 hours. I recall that the Crime and Disorder Act proposes a fast track for young people but

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the insistence on due process, with its preparation time for the prosecution and the defence, builds in unhelpful delay. I see that delay as a deliberate inefficiency.
I acknowledge that a children's hearing can be delayed by the refusal of the child and parents to accept the grounds of referral, but that delay occurs only if the parents take up that option. Most parents accept the grounds of referral and the hearing proceeds to deal with the child's future straight away.
So a referral order has been made and the young offender is referred to the local youth offending team. That professional body will appoint one of its members to be the young person's contact. That adult will also be a member of the youth offender panel for the young person in question and will be accompanied on the panel by two lay members. The professional member will also be the supervising officer and will keep the case records for the whole of the referral order. That is surprisingly different from Scotland's system. The number of people proposed to be involved is substantially reduced and may be constitutionally at fault.
At a children's hearing the child and parents sit round the usually oval table with the three members of the children's panel, accompanied by the reporter to the children's panel and the social worker. It is the position of this latter person—the professional worker—which concerns me. At any meeting of a youth offender panel the professional worker will be reporting to the panel and then making decisions as a panel member about the offender. That is a confusion of the roles: an expert witness will be on the bench. That will be perceived as a structural weakness.
At the conclusion of the first meeting of the youth offender panel, the panel should have reached the point where it has drawn up a contract, which the young person must agree to and sign. I approve of this approach; it guarantees that the young person and his parents will be aware of what is expected of them. I believe to be correct the provision which allows the youth offender panel to be adjourned for a day or so if there is some initial reluctance to agree. This will be an opportunity for informal reasoning with the family and the young person. I just wish that the professional worker who will do that reasoning was not also going to be a member of the youth offender panel.
The opportunity to vary the terms of a youth offender contract is sensible. Variation allows the contract to be kept in focus and up to date, and to be adapted to the needs of the young person as the panel gets to know him or her and as his or her behaviour patterns develop—which they certainly will during one of the longer orders.
There will inevitably be failures and some further offences; the decision-making allowed to the panel, and the courts, seems to be sufficiently flexible to cope with a continuation of the order, or breach proceedings.
When time is up, or, as the Bill says,
"the compliance period is due to expire",
I am pleased to see that there will be a statutory final meeting to wind up the young person's involvement with the youth offender panel. That process is decidedly
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missing from too many community sentences generally. There is a new approach to that conclusive meeting—and one which will be quite mind-focusing for the offender. The youth offender panel must decide either that the young person has completed the contract satisfactorily, in which case a letter will be issued to the young person and the order will be discharged, or the panel will decide that the contract has failed and that offending behaviour has not been terminally abandoned, in which case the young person will be referred back to the court for punishment.
As I conclude my remarks, perhaps I may make one criticism of one feature of the Scottish children's panel system, although this probably constitutes treason for someone of my disposition. Much as I approve of the welfare approach to offending by children and young persons, I do not think that victims, and other persons affected, are well served by the informal approach taken at a children's hearing towards establishing guilt. The saving grace of the youth justice system in this respect is the initial court appearance and establishment of guilt, despite my more substantial fears about delay in dealing with offending behaviour. Having said that, I look forward to playing a committed part in the subsequent stages of the Bill.
6.8 p.m.
Lord Northbourne: My Lords, I congratulate the noble Earl on his speech and thank him for making many points with which I very much agree. I welcome the Bill and wish to refer to Part I, which is the section which interests me. However, the success of Part I will depend entirely on the implementation of the proposals by the youth offending teams and the youth offender panels.
My comments today are probably not relevant to what is on the face of the Bill, but are perhaps relevant to what will ultimately be in the regulations or guidelines. My experience arises from my chairmanship of the children's department of Toynbee Hall and the Stepney Children's Fund, and as a trustee of the Caldecott Foundation, which deals with very difficult and damaged children.
I should like to describe to your Lordships the defendant befriending scheme which we have at Toynbee Hall. It is different from, but extremely relevant to, the proposals before us today. The offenders who come to our befriending scheme are referred by a multi-agency panel, which is made up of professionals in Tower Hamlets who deal with children, whose job it is to decide whether the child should go to court or be given the opportunity to take part in the befriending scheme. The young person decides whether he or she wants to take part in the befriending scheme. If they do so, they will have no criminal record. They must plead guilty to the offence, but they will not have a criminal record.
The process of befriending is a one-to-one relationship. We have a team of 20 or so trained volunteers who undertake to give the young person a minimum of six hours' attention a week for six months, and there is on-going follow-up support if they need it.

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The object is to build-up trust between the befriender and the young person, so that the befriender is in a position to help the young person to build up a new image of himself and, having done so, to build up a new plan for his life.
Under the Home Office criteria of not reoffending within one year, we have had a better than 70 per cent. success rate. The cost, including the costs of the activities, training the volunteers and the part-time volunteer supervisor, works out at approximately £750 per young person supported.
There are two features of our scheme which I am not sure will appear in the Government's proposals. Perhaps the Minister can clarify the situation for me. First, the young person has a choice; they make a positive commitment to join the scheme. This gives them, in a sense, a certain ownership of their own future. That is very important. Will the new scheme give the young person the opportunity to make a choice? The answer will probably be "Yes. By signing the contract, the young person will make a choice." But if they simply feel that they are doing what they are being forced to do, that they have no alternative, they will participate with much less enthusiasm, and that will make it more difficult for the scheme to have the desired therapeutic effect.
Secondly—this is perhaps an even more important issue—in our scheme the young person has the opportunity to make a strong, personal link over time with a responsible older person, who becomes a friend and a mentor. The older person's objective is to persuade the young person to change his or her attitude, both to the community and to themselves, and to provide guidance on the kind of life that they should lead in the future.
Many young offenders who appear in court for the first time have been offending for quite a long time before they become known to the police. They are not necessarily just nice guys, "testing the boundaries". Too many of them, unfortunately, belong to a culture which exists in part of our society today. They believe that there is no future for them in school or employment, and so they might just as well go into a way of life which involves living on benefits, supplementing and spicing them up with illegal activities.
We are not talking merely about punishing an offender, but about changing attitudes, changing the attitudinal landscape of some young people. That is particularly hard when the family might be heavily involved in burglary and shoplifting—or whatever—and when the street culture is pulling them in the opposite direction. I do not think that reparation or punishment will be enough. Will the youth offender panel have the power and the resources to ensure that, where necessary and appropriate, a young person will have a befriender or a mentor? Will he have such a person for a sufficient length of time to enable them to develop an appropriate relationship, which will enable that befriender or mentor to influence that young person for good, to build him up and to encourage him?
If the answer is "yes", there will be a need for a lot of dedicated people who are prepared to give of their time, and a need for enough money to support them in
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doing their job properly. Who is going to do it? Someone will have to walk up the path with the young offender when he goes to wallpaper the house of his victim. I do not think that many victims will want to have offenders doing that, but that is another matter. Who will supervise them? Who will befriend them and act as a role model? That will probably be two different people, the person who is imposing the punishment on the one hand and the person who is becoming a friend and mentor on the other.
Youth services in most local authorities have been cut to the bone. The voluntary organisations are extremely stuck for funds—grants have been cut back drastically over the past years—and the social services are practically completely occupied now in dealing with crises. Who will actually do the job? If we want to avoid wasted lives, as a society we must invest in making this youth offender panel system work. We must invest in prevention.
I spoke, argued and fought with the previous government, but I could not budge them the slightest degree on the issue of investing in prevention. If this Government are prepared to put money into prevention, I ask noble Lords to support them.
6.16 p.m.
Baroness Anelay of St. Johns: My Lords, I would like to speak to Chapter II of Part II of the Bill which tackles the issue of the cross-examination of witnesses in cases of sexual offences.
I tabled amendments on this issue during the course of the Crime and Disorder Bill and I took part in the debate on the working party report on 22nd June. I am grateful to my noble friend Lady Byford for raising that debate as an Unstarred Question. I also thank her for her extensive work on the subject.
I have been in contact with many outside organisations on this matter. Some felt that I had gone much too far and others, such as Women Against Rape, that I had not been radical enough. I am grateful to Women Against Rape for its briefing on Clause 40 matters, to which I will not refer today but I have no doubt it will raise much debate at Committee stage. Today I will confine my remarks to Clauses 33 to 39.
I give a cautious welcome to the fact that the Government are attempting to tackle such a sensitive issue—cautious only in that I am always cautious by nature anyway. Any reservations I may express tonight, or questions which I may pose, are not intended to be hostile but merely to ensure that any changes wrought by this Bill meet the requirements that they are both effective and fair.
The Bill covers some radical new ground in breaching the long-established right of individuals to put questions in person to their alleged victim. It comes at a time when the noble and learned Lord the Lord Chief Justice has made strenuous efforts to make changes by practice direction. It is important to recognise the positive steps already taken by the judiciary to address the difficulties raised by cross-examination in cases of sexual offences. I have listened with great care to the arguments put

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forward tonight by the noble and learned Lord, Lord Bingham of Cornhill, and the noble and learned Lord, Lord Ackner.
In the debate on the gracious Speech, the noble Lord, Lord Mackenzie of Framwellgate, referred to this issue, as he has reminded the House tonight. He said:
"I only wish courts and advocates dealt with victims as sensitively as the police".—[Official Report, 2/12/98; col. 530.]
On that occasion the noble Lord, Lord Thomas of Gresford, pointed out that it was not quite the case that the police are all good and lawyers are all bad. Surely that is the nub of the matter. It is too simplistic perhaps to think in terms of lawyers being insensitive in cross-examination. Not all advocates are monsters—and, as ever, I declare an interest in that I am married to one. All lawyers, at whatever stage of a case, must test evidence rigorously. That is their job. Constraints upon the rights of the accused must therefore be considered in the light of the fact that not all of them are guilty.
It is also important to recognise that the treatment of witnesses has a proven direct impact upon both the level of reported crime and, subsequently, the victim's willingness to give evidence, and to continue to give evidence, throughout what can be a very traumatic trial. The cross-examination of the alleged victim therefore has to be rigorous but fair. The overall question that we will need to consider in Committee is whether the Bill provides a fair balance in the way it approaches all these matters.
I shall leave detailed consideration of the proposals to the Committee stage, but I should like to flag up two of the issues which we may need to address as a result of the mandatory prohibition in Clause 33 upon personal cross-examination of the alleged victim by the defendant. Clause 33 provides that defendants charged with rape or other sexual offences who choose to conduct their own defence may not themselves cross-examine the alleged victim of the offence. It also extends that prohibition to any other offence with which the defendant is charged in the proceedings.
The report Speaking up for Justice recommended that there should be a mandatory prohibition on unrepresented defendants personally cross-examining the complainant in cases of rape and serious sexual assault—Recommendation 58. However, it appears to me that the Bill has significantly widened the net beyond serious sexual offences to encompass "sexual offences" as defined in Clause 57—not only rape or burglary with intent to rape but also indecent assault. Presumably that means any indecent assault of whatever level of seriousness. I ask the Minister for guidance on this point. Would it mean that the prohibition on personal cross-examination would cover cases in the magistrates' court?
Clause 33(b) also puts a mandatory prohibition on cross-examination with regard to any other offence, of whatever nature, with which the defendant is charged. It will be interesting to learn the Government's thinking behind the extension of the mandatory prohibition
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beyond the recommendations in the working party's report. I hope that we shall have the opportunity to examine that point in Committee.
The second issue concerns the work of the lawyer who will be appointed to carry out the cross-examination when the defendant has been barred from doing this personally. Basically, how will the lawyer do the work effectively and meet the high professional standards? Clause 37 makes provision for representatives to be appointed to conduct cross-examination on behalf of, or in the interests of, unrepresented defendants. If a defendant is banned from cross-examination in person, the court will ask him or her to select a legal representative to carry out the cross-examination. If the defendant does not agree to select a legal representative, the court will have to consider whether it is necessary, in the interests of justice, for the witness's evidence to be tested. If it decides that it is, it will appoint a legal representative with rights of audience in the court to cross-examine in the interests of the defendant.
That clause follows very closely Recommendation 62 in the working party's report. However, when one reads the main body of the report, important issues are raised about how effective the role of the legal representative can be. I believe it would be helpful to the House to discuss those issues at the Committee stage. I believe that there are some circumstances in which the role of that lawyer may be so closely circumscribed that he may not be able to fulfil what would normally be considered his professional responsibilities.
All of us throughout the country have a role to play in ensuring that the criminal justice system works as fairly and effectively as possible to protect all the individuals concerned—victim or innocent defendant. I have listened with interest to those in the House who are experts in this field, from my noble friend Lord Windlesham, who has so carefully represented, inside and outside the House, the interests of victims, to those who have played a part in the judicial system. When we come to the Committee stage I look forward to playing my small part in assisting the House in further discussion of the Bill.
6.24 p.m.
Viscount Colville of Culross: My Lords, I am very happy to endorse the many speakers who have encouraged the introduction of Part I of the Bill and have made constructive suggestions about it. I want to concentrate on an area that has not so far been discussed. I refer to the special measures directions to be found in Clauses 19 to 32 and rules to be made under Clause 60. Some procedures there are already familiar. We already use screens on suitable occasions in the Crown Court, we already use the television link and there are many cases where the video recording of the evidence-in-chief of a child is played in court to the jury in the course of the trial. I am not absolutely certain why it is necessary to put these procedures on a statutory basis. If the noble Lord, Lord Warner, is right in quoting a source that says there is judicial opposition to the use of television links, it is certainly not my experience that that is the case. Perhaps the noble Lord, Lord Williams,

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will explain why we need these familiar techniques put into statutory form. But I in no way oppose the proposition in the Bill.
What I wish to refer to is the provision in Clause 27 about the cross-examination and re-examination of witnesses—they will normally be child witnesses—on a video recording. I wondered whether it would be possible to deal with this at the Committee stage, but I think it is so complicated that it deserves a short Second Reading speech. I see that in one line the Law Society opposes Clause 27, but I recall that the provisions in it were recommended by the Pigot Committee and that they have been widely discussed in Parliament since but have never previously been adopted. Therefore, this is an admirable occasion on which to consider the realities of the situation in 1998.
I welcome the provision, subject to what I am about to say, because if a case of abuse of a child is to be tried and the child's evidence-in-chief is given by means of a video recording, there is inevitably a delay. The delay is sometimes far too long. But whatever the delay may be, the child, having immediately after the prosecution has been decided upon given the statement which is recorded on video, sees it for the first time when it is played to the jury at the trial. Counsel and judge will have seen it before but the jury and the child witness see it at that stage.
I have had to deal with a number of these cases. It is not surprising that a good many of the children, when asked questions, say, "It is a very long time ago. I cannot remember", or, alternatively, "Can I possibly see the video again?". And, of course, they cannot. If the Minister would be so kind and has time, I should like him to explain in outline how the provisions in Clause 27 will work and to tell us about some of the contents of the proposed rules. I see and applaud the idea that there should be piloting of this provision and that it should be phased in.
If there is any method of avoiding bringing a child to court, particularly some time after the whole thing happened, that is something I wholly favour. Such visits are not only traumatic for the child, who has had to be taken to the court on a previous occasion to familiarise himself or herself with the procedures and geography of the court, but they are time-consuming for the people to whom the noble Lord, Lord Windlesham, referred from Victim Support who have to make all the arrangements. They do that very well, but it is extremely time-consuming and it would be wholly desirable for everybody if it could be avoided—particularly for child witnesses.
I am glad that under Clause 27(6) there will have to be special reasons for a further cross-examination, after that done on video, to be allowed by a judge. The real intervention that has occurred since the Pigot Report is mentioned in Speaking Up for Justice and is crystallised in the provisions of the Criminal Procedure and Investigations Act 1996 and the rules in the code of practice made under it. That has formalised the preparation of a case. There is a timetable, which is meant to be rapid, after a committal by magistrates to
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the Crown Court. There is primary disclosure, a defence statement, then secondary disclosure. Only after all that is it possible for the defence to cross-examine.
Your Lordships will be amazed to know how many times primary disclosure does not appear fully to have been carried out or, if it was, the defence seems to have lost the documents or never received them. It is amazing how long it takes to get a defence statement for various reasons, and equally amazing is how long it takes to get secondary disclosure. In a case involving a child, time goes by, months pass and the defence case becomes stale—and a child's memory is very short.
I put before the Minister a shopping list. It is not one that he will take down the high street for Christmas. But as he kindly promised to talk to us all in the new year, perhaps we may discuss the list later. Cases where a video link should be used ought to be identified by the Crown Prosecution Service at the earliest possible stage and marked in some way on the file for priority treatment. After that, the CPS case officer must ensure that the police produce and the defence receive all the documents required under primary disclosure. I have heard it said so often, "The tapes have not arrived". There is no explanation, but a check has not been made by the CPS. That cannot be allowed to occur in such cases.
Then there is the defence case. Yesterday, there was an important Bill about those who are to conduct criminal case defences. Whether they be banisters or solicitors, selected or not, there should be a duty upon the advocate who is to act at the trial immediately to grasp the case given to him or her. Admirable guidance was given by the Bar Council on 24th September 1997 about preparing defence statements. I hope that guidance will be enforced and that similar rules will apply to solicitors, who have audits. There must be a conference with the client and other things as well.
If the defendant will not co-operate, the defence must waste no time in coming to the court and seeking a bench warrant to require their client to attend and confer with his or her legal advisers. That is often left far too late. There is a great reluctance by some defendants to come in. If the defendant is in prison, the Minister would greatly assist the process if he could persuade the Prison Service to give priority to appointments with legal advisers to see such defendants to prepare their defences. I do not know whether the noble Lord is aware how extraordinarily difficult it is at Wormwood Scrubs, for example, for legal advisers to get an appointment to see their clients in custody pending trial, which greatly delays matters. The duty of the defence must also be to get statements from the proposed defence witnesses.
As to secondary disclosure, particularly where children are involved, one tends to get into the realm of social services or school reports. Are there to be rules about that? Paragraph 92 of the Explanatory Notes refer to such matters, which I welcome, but I suggest to the Minister that the prosecution should not wait until the defence statement to find out whether social services or educational records exist in relation to a particular child. They should acquaint themselves with those records, so that if and when there is a requirement to put them

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before the court and a necessity to decide whether public interest immunity is involved, they will be ready. So should local authority organisations, which sometimes are not that willing to produce documents. They have to be persuaded by one means or another. Sometimes, the defence goes fishing in those waters and, again, that wastes time—which could be avoided if the CPS were ready.
Only after all that will it be possible for the cross-examination by the defence, properly instructed and properly informed, to take place. If that is to occur on video, it must be done, if it is to be done at all, as quickly as possible. The scheme is ambitious, and I would welcome any further elucidation that the Minister can give. There may have to be more than one plea and directions hearings, and there is no difficulty about that.
As to paragraph 111 of the Explanatory Notes, I am extremely concerned that the Government envisage that either the trial judge or magistrates should not necessarily be present at the video cross-examination. It is extremely important that the defence counsel should be under the control of experienced magistrates or a judge who has a suitable ticket, because there is a tendency to dwell on a point far too long. There is also the absolute necessity, when dealing with video material, to make sure that a child who becomes tired is allowed to rest. That can only be done if the judge is in control of the cross-examination. When the Minister reflects, I do not believe that he will find it at all desirable that the court should not be in control of cross-examination.
Another point that concerns me is technical. It does not relate to cross-examination so much as the evidence-in-chief. Clause 26(3) introduces a new formula for the court to exclude evidence as being prejudicial. I had occasion in a case involving evidence-in-chief recorded on video to have a challenge about editing of the evidence, with the suggestion that some of it should be removed. At that time, the only guidance was Section 78 of the Police and Criminal Evidence Act 1984, which is a familiar scene for most people who administer justice. It is accompanied by an enormous amount of advice from the Court of Appeal. That has always been used. Why is the completely new formula introduced in Clause 26(3)? The only possible conclusion is that Parliament must have meant it to be a different test from that with which everyone is familiar under Section 78 of the 1984 Act. Different rules would have to be evolved and I do not believe that that would lead to the smooth administration of justice. I ask the Minister to look again at that point.
The Minister will now understand why I could not say all that in a clause stand part debate. If he can give me any help with those matters, I shall be much obliged.
6.39 p.m.
Viscount Brentford: My Lords, like other noble Lords, I warmly welcome the main thrust of the Bill. I was impressed with the Explanatory Notes which set out the three principles of restorative justice. I wonder whether there is scope for having a clause at the start of
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Part I to set out the principles or objectives of this part. We move fast straight into referral orders. Has the noble Lord considered whether some kind of introductory clause setting out these principles would be helpful in the implementation of the Act at a later date? Your Lordships' House has on occasion done that before now—against the wishes, I believe, of the former government. It may be valuable sometimes to have such an introduction to set out what that part of the Bill aims to achieve.
The Bill moves straight into referral orders in Clause 1. I seem to remember hearing my noble and learned friend Lord Mackay of Clashfern musing yesterday on the difference between a committee and a panel. I am glad that we have the active and vibrant words of "team" and "panel" in Clause 10. I believe that that is valuable. Perhaps because of all the committees on which I have served over the years which seemed to lead to a dead end, I am not keen on the word "committee". I am glad that the Government have chosen the words I have mentioned in connection with this youth offender work.
I was also glad to hear from the noble Earl, Lord Rosslyn, in his admirable maiden speech more about the Thames Valley Aylesbury Project. I referred to this a year ago when I said in a debate on 27th October, quoting The Times,
"After an 18-month trial, Thames Valley Police said that only 12 petty criminals had committed new crimes out of 350 who took part. Normally about 100 are likely to reoffend".—[Official Report, 27/10/97; col. 952.]
I felt that that was satisfactory. The document No More Excuses refers at page 17 to the Thames Valley scheme. It states that,
"more detailed research will be conducted".
Can the noble Lord, Lord Williams, say anything further about more detailed research during the past year other than what the noble Earl has already told us? I am greatly in favour of such research for a number of reasons. All that has been included in this Bill on that point is obviously welcome to me.
There has been a certain amount of discussion on regulations and guidance. I noticed that my noble friend Lord Windlesham said that he thought that there was a good deal of detail in this part of the Bill. The same thought occurred to me when I studied the Bill. I heaved a sigh of relief that all this was in the Bill and not in regulations. I then started to count how many references there were to "separate guidance" and "regulations". After counting three or four, I decided that I would not complete the task. There is a great deal of work to be done on this. When will the regulations be produced? I suspect that the noble Lord, Lord Williams, will tell us that they will not be available for our discussions on this Bill. However, I should be glad to know whether any of them will be made available at a later stage.
As regards Clause 3, I am glad to see a reference to the home location of an offender. It is important that a court should take that into account. An offence may not be committed in the area where the offender resides. The offender may live 100 or 200 miles away. I am glad

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that in setting up the panel the court must take into account where the offender resides. I was pleased to see that provision.
As regards Clause 5, I was glad to see that "the appropriate person" is defined, where relevant, as either,
"a parent or guardian of the offender".
or the local authority. Can the noble Lord give us any idea of the proportion of cases in which the local authority will be considered the appropriate person and the proportion in which that will be considered to be the parent or guardian? What is the balance as between those categories? We have often talked in your Lordships' House about local authorities having problems as regards young people in their care.
When the noble Lord replies to the debate, will he be able to give us any information as regards Clause 6(4) and the qualifications or criteria that the Government seek for members of the youth offender panel? As subsection (4) states, I am sure that that will be specified in the regulations. However, can the noble Lord tell us anything further today about what he is looking for in that regard?
I appreciate the flexibility in Clause 7(4) as regards the reference to,
"someone capable of having a good influence on the offender".
I am sure that in most circumstances parents are the people who ought to have a good influence on the offender. However, we all know very well that that is not always the case. I congratulate the Government on referring to someone else who could be the good influence. It is good that parents are to be made responsible for their offspring. After all, parents have brought their offspring into this world and they cannot deny that responsibility, although many, sadly—usually the fathers—often attempt to do so. The more they can be made responsible for their offspring, the better. I appreciate the flexibility that has been shown in this regard.
Clause 8 is a good provision. I tried to incorporate the three principles I have already mentioned and references to similar matters in the document No More Excuses into my consideration of this clause. As regards the references to reparation and reintegration into the community, perhaps there is scope here for greater emphasis on a sense of personal responsibility. I believe that one can thus help a young offender to mature. Clause 8(2)(f) comes closest to a reference to a sense of personal responsibility when it states that the offender must "address offending behaviour". However, I believe there is scope for making a young offender adopt greater personal responsibility for what he has done. Here, again, I believe the Thames Valley practice is helpful. For an offender to face his victim, as is provided for in Clause 8(2), is of great help in conferring on him a sense of personal responsibility for what he has done. Perhaps there is scope for more of that to be written into Clause 8.
Finally, I wish to comment on two clauses in Part II. Like the noble Viscount, Lord Colville, I refer to Clause 27 which deals with cross-examination by video recording. Perhaps there is scope for the possibility of a live link, as in Clause 26(9). I went round in circles on
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it and I may have got it wrong, but it seems to me that cross-examination may arise from video recording in court. Would it be helpful—obviously not in the case of small children but with other witnesses being cross-examined—for it to be done via a live link so that they do not face the accused? It could be done instantaneously before the court. Perhaps that would be cheaper than the court having to adjourn for a video link.
I also wish to mention Clause 33. Like the noble Lord, Lord Williams, I was pleased to see the prohibition on some of the dreadful distortions in the previous law, such as rapists putting their victims through the terrible trauma of several days' cross-examination. However welcome the clause, I have two questions. First, can the noble Lord, Lord Williams, confirm that it is not in breach of Article 6 of the European Convention on Human Rights? I hope that it is not. Secondly, should there be any flexibility for the court to permit any such limited cross-examination by the accused within limits set by the court as it considers appropriate? I notice that in Clause 35 there is discretion for the court the other way round—that is, for the court to make directions to prevent an accused from cross-examining a witness in person. I wonder whether there are any circumstances in which the court ought to have a discretion to permit the accused to conduct cross-examination under Clause 33.
By and large, this is an admirable Bill and I am glad to see both parts coming on to the statute book.
6.52 p.m.
Lord Judd: My Lords, if the debate is remembered for anything, I believe it will be remembered for the exceptional maiden speech by the noble Earl, Lord Rosslyn. It is not often in our deliberations that we hear frontline experience of that kind being brought into our discussions. It is not always that one finds heavily taxed professionals able to reflect so deeply on the experience which they gain in their work and the implications for public policy. I believe that the House has every reason to be deeply grateful.
At the outset I must declare an interest, as I have done before. I am the honorary president of the YMCA in England, which works with some 70,000 young people in the course of a year. The YMCA broadly welcomes the Bill, particularly the youth offender panels, the contracts with offenders and the progress meetings. There is a general feeling among those most involved in the association that it is good to have clear procedures designed to operate with as little unnecessary delay as possible and to tailor the remedies to individual offenders. It enables them to develop a sense of identity as the basis for future responsibility.
I hope that local practitioners like those in the YMCA, with their invaluable frontline, realistic experience, can be involved in the implementation of all that. There will also be a great need for follow through after contracts are completed. What I think is often a sadness in the situation is the way that inadequate people are thrown back into society, with no real means for them to be helped to re-integrate and make a success of their lives.

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I hope I may be forgiven in this Second Reading debate for talking around the Bill as well as about it. The Bill comes in the context of the deep concern about dealing with the causes of crime as well as crime itself. Here I was impressed, not for the first time, by what the noble Lord, Lord Northbourne, said. It seems to me that, both in the cause of rehabilitation—which must be the highest priority of all in sound penal policy—and in the cause of good economic sense, prevention cannot be over-stressed as a priority. It is here that it is crucial for the Government to give priority, with the financial resources that can be generated, to supporting practical preventive work.
Let me give a few examples drawn from the experience of the YMCA. There is the work with the young homeless. It is a truly sobering thought to recognise that 42 per cent. of the young homeless with whom we deal in a pretty extensive programme have been in trouble with the police. Then there are the crime diversion programmes, like those in Lancaster and Woolwich, with their motor vehicle projects; or the programmes in places like Bootle, providing alternative education and training for young disaffected pupils excluded from school. There are the successful peer-led schemes dealing not least with solvent abuse. Those are the kinds of projects that need generous government support if we are serious about the causes of crime and prevention.
Then there is the vital pre- and post-release work with those in young offenders institutions. What are some of the practical manifestations of that? They are providing basic skills and vocational training; job search and employment awareness programmes; and, again, ongoing support and care after release, not least to help with training, employment and housing.
I have had the opportunity to refer to the experience I have been privileged to have in my relationship with the association in the past two-and-a-half years. I have had the opportunity on previous occasions, and I hope, therefore, I will be forgiven for re-emphasising something that has made a profound impression on me. It is the realisation that so many of those whom we categorise as young offenders are immensely lonely people, isolated and vulnerable, with none of the support mechanisms that all of us in this House take for granted in the course of our normal lives.
If I have learnt something from the years of working with the association which to me has become increasingly important, it is that if we are serious about rehabilitation and re-integration, we must walk with offenders through the process of rehabilitation. We must manifest practical solidarity with the young with whom we are dealing. Without such a positive approach, all the evidence indicates that prison becomes a damaging rather than a rehabilitating experience. Recent research published by NACRO and the Prince's Trust has underlined the point.
We are also concerned with the issue of parental responsibility. The words roll lightly off the tongue. But do we ask ourselves how adequate many parents in society are to carry out their parental responsibility. In
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the most deprived social areas of our country. are there opportunities to develop the talents and responsibilities of parenthood? Is there an underlying, genuine recognition that socio-economic factors do affect levels of parental support and supervision? It is absurd to pretend that there is no interrelationship between them.
If we are serious about prevention, we must give generous support for schemes which are designed to develop the skills of parenting among those who have least opportunity to develop them.
Schools have their part to play. There has been reference to that. I have immense admiration for the Minister. I have no doubt about the direction towards which he is working and the commitment with which he does so in order to tackle some of the issues I describe. I know that he will say that he becomes most frustrated about the number of youngsters in prison who cannot read or write and are not numerate. Therefore the work of the Department for Education and Employment is highly relevant to prevention. If young people do not have those skills, where is their chance to make a success of life? Therefore, the temptations to go off the straight and narrow increase.
However, I am sure that the Minister will agree with me that one of the difficulties in our education system at present is that, with all the curriculum pressures in recent years, there is not sufficient space for the character building, social policies, social training and social orientation programmes that should be taking place within schools. Perhaps I may be blunt about it. Many of us in this House look at education in terms of our experience. We take for granted the character building experiences that existed in our secondary education. But they do not exist now for many of the people who most need them. The space and resources are not available for teachers to develop those programmes. That factor has to be taken seriously as well.
In addressing the issues which the Bill is designed to tackle in the context of the administration of justice, the Government must continue to develop a social matrix, a policy in which a range of departments is brought together. If we simply rely upon the administration of justice, we shall get nowhere. The administration of justice underpins the necessary wider social policy.
In conclusion—I apologise because I have made this remark previously; and I hope that I shall be forgiven if I make it again in the future, as I am sure I shall—we cannot separate the issue of prevention from the prevailing mores of our society. If what is worshipped and applauded in our society is a kind of success related to greed, as distinct from public service, public responsibility, belonging and sharing, we can hardly complain if those living under immense pressures, with the greatest difficulties, go off the rails. Where is our authority to appeal to them? If we are serious about the issue, we have to redevelop a viable and convincing commitment to decency, integrity, commitment and solidarity in our society. On that basis—the young are often under incredible pressure—we shall have some credibility when talking about their responsibilities. But

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if we tell them what they should do when we appear to come from a world in which those principles do not operate, we have little credibility.
7.5 p.m.
Lord Rix: My Lords, aspirations, words and actions do not always follow each other in quick succession. On this occasion, the aspirations have been around for a long time but I congratulate the Government on coming forward with legislation so promptly after the promises made in the gracious Speech. As chairman of MENCAP, I welcomed the words when I spoke in the debate on the Address. Some few days later, transmogrified into the president of MENCAP, I welcome the action on support for vulnerable and intimidated witnesses in the Bill, in particular those with a learning disability, a group already mentioned by the noble Lord, Lord Warner. Perhaps I may remind your Lordships that those form a constituency of approximately 1.2 million souls in the United Kingdom.
I am sure that fault may be found with parts of the Bill. In the interests of those who at present are denied justice because the criminal justice system presents them with barriers rather than help, I hope that we can give this measure a favourable wind on its journey to the statute book.
Having mentioned my particular concerns before, perhaps on this occasion I may summarise rather than elaborate them. Someone with a substantial learning disability, who has problems with communication, who is not streetwise and whose experiences have not given him a strong sense of his own worth is at particular risk of abuse, in particular abuse by those on whom he or she depends. The vulnerability which brings abuse also brings an enhanced risk of the abuse not being reported, not being detected, and, if reported, then frankly not being believed.
It is a basic test of a civilised society that people whose rights have been infringed should be able to secure justice through judicial process. That has not been happening. People with learning disabilities, who have suffered abuse, who have gone through agonies as a result and who when eventually they seem to see some light at the end of the tunnel, receive little sympathy and help because the criminal justice system has not been geared to meeting their needs, or even recognising those needs. No wonder they are often bewildered, hurt and—who can blame them?—angry too.
I should like to take this opportunity to pay tribute to those who have fought the good fight to secure better protection for vulnerable people and have helped us all to reach the point we are at today. One such person is the late Ann Craft of Nottingham University, who has had a great influence on both thinking and practice in this area. Her death in April last year was a great loss to the work in which she was involved and to her friends and colleagues. It is fitting that the Ann Craft Trust has now been set up to continue her work under her name.
Perhaps better known to your Lordships because of the regular meetings of its parliamentary group in this building is Voice under its chief officer, Christiana Horrocks. I have known Christiana over many years as
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a champion of the rights of people with learning disabilities in her professional Civil Service role. She is the continuing presence of commitment in the midst of all the regular changes of personnel which now appears to be the Civil Service norm and will certainly welcome the generous offer of a meeting with the department already given to us by the Minister.
In addition to its parliamentary role, Voice provides support and information to individual disabled people, their families and carers. Calls to the Voice telephone support line have doubled in the past two years. I suspect that that reflects both the increasing expectation that something should be done and the increasing frustration that justice continues to be denied.
The Youth Justice and Criminal Evidence Bill offers the possibility to process changes that will help a range of people who are disadvantaged by the way things are at present. I have no problem with this generic approach. It seems to me that, provided it delivers the required outcomes, generic legislation often has advantages, not least because it signs up more supporters to the cause of reforming criminal justice. To give evidence in court is an ordeal for many people who have suffered very personal distress, who find that the right words do not come very easily and are intimidated rather than supported by court routines, to the point of wondering whether they are the victims or are in the dock.
As to special measures for people with disabilities, I confess some discomfort about the wording that is adopted in Clause 16. In that provision reference is made to a witness who "suffers from mental disorder", "suffers from significant impairment of intelligence", suffers "from a physical disorder" but has only "a physical disability". I am at a loss to understand the distinction. I acknowledge the convention of drafting statutes in terms that are remote from everyday usage, and I respect the wisdom of parliamentary counsel in these matters. Nevertheless, I question whether we need "suffering from" which seems to imply both immediate pain and eventual cure. Neither fits the context.
I turn from terminology to procedural change. Like other noble Lords, I welcome in particular the possibility of video, live television links and screens being used for vulnerable adults as well as children. This can avoid the need for the person to appear in court and reduce the stress of exposure to the alleged abuser where a court appearance is inevitable. Video as well as a pre-visit would provide a means of preparing someone with a learning disability for a court appearance. I suppose that in the end virtual reality can become part of the process.
I assume that the court building is accessible as a necessary first step to introducing accessible court procedures. I am told that that is a rather rash assumption. I trust that the Home Office will issue guidance on how magistrates and Crown Courts can meet their Disability Discrimination Act responsibilities at the good practice level rather than just the bare essentials level. Technology and furnishings are not a substitute for personal support. That support is needed when someone is considering what help he may need in

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connection with a court case, just as it is needed immediately after the abuse, in the intervening period and after the case is over.
I acknowledge the long tradition of defending the interests of the accused by giving the victim as little support as possible until he or, more commonly, she appears in court, quite often to be mauled by defending counsel. I understand the rationale for that, but I do not believe that justice is either done or seen to be done by this approach. It amounts to making the vulnerable person a double victim: a victim of the abuse and then of the system. If "people" support is to be provided, the people who provide it need training. Training was a major theme of the recommendations in MENCAP's study Barriers to Justice which covered not only support staff but the police, the Crown Prosecution Service, lawyers, barristers, magistrates and judges. I ask the Minister what training is envisaged. Without training the Bill seems destined to be full of significant words but unlikely to have significant impact—strutting and fretting its hour upon the stage but then being heard no more.
I began by commenting on promptness on the part of the Government. I follow that up a little less charitably by inquiring about the timetable once the Bill has become law. When will the pilots begin? Assuming the pilots are successful, when is the full programme likely to be rolled out? Is there any risk that lack of resources may slow down implementation by impeding physical changes or acquisition of technology or training? We all know that justice delayed is justice denied.
I hope that I shall not be thought greedy if I raise one other point. When I spoke in the debate on the gracious Speech I drew attention to the marked discrepancy between the maximum two-year sentence that can be imposed when sexual abuse is tackled under the Mental Health Act as compared with the kind of sentence that may be imposed for the criminal offence of harming a vulnerable adult. Does the Minister agree that it is unacceptable to impose a lighter maximum sentence where the victim is a disabled person than where the victim is not disabled? Does the Minister propose to introduce measures to correct that quite unacceptable anomaly? I look forward to the Minister's response and to the rapid passage and implementation of a new piece of important legislation. It is undoubtedly overdue but nevertheless very welcome.
7.15 p.m.
Lord Thomas of Gresford: My Lords, I add my warmest congratulations to the noble Earl, Lord Rosslyn, on his excellent maiden speech in which his practical experience was so much to the fore. I was astonished by the admission of the noble Baroness, Lady Anelay, that not all policemen were good and that not all lawyers were bad. It reminds me of Dylan Thomas's comment in "Under Milk Wood" that we are not wholly bad or good who live our lives out under Milk Wood. That can be said of both lawyers and police officers.
The noble Earl referred to the community conference and to its derivation which he thought was part of Maori custom. That form of dispute resolution has been
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adopted in New Zealand. I am reminded of a murder case in which I was involved in Oxford some years ago which involved discussion of the tribal customs of the Dinka in Sudan. They had a very similar way of resolving disputes and mediating by calling a village meeting in which the disputants were told how to behave themselves. Oxen were handed out in the proper proportions, and so on. The anthropologist from the University of Oxford who gave evidence said that the introduction of the noose and prison by the British under, I believe, General Kitchener, was regarded as truly barbaric by that tribe.
Today we are discussing youth offender panels which I believe to be very much a step forward in dealing with young people. I was party to the amendment moved by the noble Earl, Lord Mar and Kellie, when this House debated the Crime and Disorder Bill. As I said at the time, our current system of youth justice, with a youth court in which there is the traditional proof of guilt, the finding, the conviction and then the punishment, is not the best way to deal with young people. I was much impressed by the reference of the noble Lord, Lord Northbourne, to the use of youth offender panels involving the youth and the family so that the youth has a stake in his own future and his attitude will change accordingly.
The youth offender panels referred to in Part I of the Bill are limited in scope because they can apply only to first-time offenders, those who have no previous convictions and those who plead guilty. For example, if a person has appeared before the court on a previous occasion and has been convicted and given a conditional discharge, under these provisions it is not open to the court to make an order to refer him to a youth offender panel on a subsequent appearance before the court. I am glad to note that in subsections (3) and (4) of Clause 2 the Secretary of State is given power to extend the scope of youth offender panels as experience in operating those panels grows.
Therefore, I hope that the present proposals are something of a pilot scheme. They will deal only with a limited class of people because first-time offenders who plead guilty are a very small proportion of the number of people who appear in youth courts. I hope that that will gradually extend as people gain experience of that system.
I move now to Chapter I in Part II of the Bill. I welcome any provision which may be made to protect the interests of vulnerable and intimidated witnesses. It is a blot upon the history of the courts of our country that witnesses have been tethered up in some remote corner of the court without any regard to their convenience or their problems.
I had hoped that the Government might take this opportunity to review compensation for victims of crime because there has been no movement to reform the alteration to the criminal injuries compensation scheme which the previous government introduced so that awards of compensation were greatly reduced. But that is perhaps something for another day.
There must be a balance between the right to a fair trial and concern for the needs of witnesses. When one strikes that balance, one must have regard to the ordeal

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that the defendant is suffering in having criminal charges brought against him, to the difference a conviction of guilt may make to him and to his future, and to the ordeal of witnesses who, however vulnerable and intimidated they may be—and I have every regard for their problems—must undergo that very short-term experience. It is an ordeal for both.
There is nothing new in the special measures proposed in the Bill, as the noble Viscount, Lord Colville of Culross, pointed out in his speech. I have personal experience of screens being erected in court. Indeed, it is now so commonplace in the Old Bailey that in some courts, there are permanent frameworks in place so that screens can readily be put up. Similarly, I have personal experience of video links, of private hearings, of video questioning, even of removing my wig and gown in an appropriate case.
But what is new is Clause 27 which refers to the cross-examination and re-examination of witnesses on video. That is new. I do not quite see the point of it. Does it mean that the cross-examination takes place in the presence of the defendant and not at a remote distance, as happens at the moment? Does it mean that it is done a fortnight or three weeks in advance of a trial? There is no difficulty in doing it, but what is the impact on the members of the jury when they see what appears to he something like a television play being broadcast and when all the evidence of a witness—examination-in-chief, cross-examination and re-examination—is simply played to them on film? I really do not see that it is a greater ordeal for a vulnerable witnesses to be cross-examined live than it is to have a film taken of that process which can be shown to a jury at a different time.
My view is that the members of a jury are less likely to be impressed by a video film of something which has occurred on a previous occasion than by a live examination of witnesses which is taking place through a video link with a child or a vulnerable witness in another room. When the Minister replies, perhaps he will give some idea of the policy which lies behind that provision.
The cross-examination of complainants in proceedings for sexual offences is a very difficult area. Complainants may tell the truth; they may lie; they may be inaccurate in their detail; they may be plainly wrong, as happens only too often in identification cases. It may be that when a complainant makes a complaint and goes to court to support it, in the public mind, the burden of proof is indeed reversed, as was feared by the noble and learned Lord, Lord Ackner. It is thought that in some way the defendant must prove his innocence because a complaint has been made against him.
I suggest that the members of a jury, who are chosen by lot, and who are very firmly directed where the burden of proof lies, do not take that stance when they come to consider their verdict at the end of a trial. The noble Lords, Lord Warner and Lord Mackenzie of Framwellgate, referred to the statistics of acquittals and how they have decreased. But juries have heard the evidence. They are not hardened professionals; they know how people live, breathe, work and talk. They are
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there to judge the witnesses. Are those noble Lords saying that all those acquittals are wrong? There is no evidence to that effect. If one has any belief at all in the jury system, one believes that by and large, in the vast majority of cases, juries get it right.
The fact is that the statistics for conviction in rape charges, in adult rape in any event, have decreased because of the introduction of the concept of marital rape and date rape. I do not object to that. But the fact that those types of rape are the most frequent rapes brought before the courts means that convictions are less likely. As the noble and learned Lord, Lord Ackner, pointed out, it is for the prosecution to prove not that the complainant did not consent but that the defendant did not believe that she consented or was reckless as to whether or not she consented. That is a heavy burden of proof. But if you are going to send somebody to prison for eight, nine or 10 years for rape, surely his state of mind is an important feature in the crime. If his state of mind is that the lady consented, however wrong-headed that may be, a punishment of eight or nine years, or, indeed, any punishment, would be quite wrong.
The suggestion that a defendant should not cross-examine a person arises out of two cases, as the noble and learned Lord, Lord Bingham of Cornhill, the Lord Chief Justice, said. In those two cases, one must put oneself in the position of the judge.
Let us take the first case. That was the first time in history, about which anybody on the Bench or the Bar has ever heard, when a person who was conducting his own defence abused his right of cross-examination for days in a disgraceful way. What does the judge do? The judge must have two fears in the back of his or her mind. The first is, that if she—it was a she—interferes too much, the jury will take the side of the defendant and think that the judge is biased. The other fear is that if she interferes too much and stops this unique first-time happening, the Court of Appeal will say that the trial is unfair.
All that was put right because when it happened on the second occasion and the matter went to the Court of Appeal, the Court of Appeal laid down the firmest guidelines in which judges can have the utmost confidence when controlling their own courts in such a situation.
This proposal prevents, for example, a husband asking his wife questions in a marital rape case. He may, rightly or wrongly, believe that if only he can talk to his wife when she is in the witness-box and say, "Now look, person to person, you consented", or, "This was not rape", he will receive a proper response from her, the response that he wants, which he will not elicit through the mediation of the middle-man of a bewigged barrister.
Similarly, a father may feel the same about his daughter. We must bear in mind that not all complaints are true. Sorting out the true complaints from the untrue complaints is the problem. A father may believe that by talking to his daughter in the witness box he can get her to admit what is in fact the truth and that the recollections whisked up from the past by a hypnotist—thoughts that she had buried—are all a load of rubbish.

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We have all heard of such cases. So why should he not be allowed to do it? It is a basic right that a person is allowed to question and test the evidence of a complainant against him.
As regards Chapter III which deals with the protection of complainants in proceedings for sexual offences, there is nothing new in any of the provisions, save for one matter to which I shall return shortly. All that Chapter III does is to set out good practice already followed in the courts of this country. If one is to make an application to a judge in a rape case to include the previous sexual history of the complainant, one hopes that there is a responsible and reasonable basis for making such application. It is not surprising that 75 per cent. of such applications succeed; they would not be made unless counsel appearing in a particular case felt that the complainant's previous sexual history was relevant.
The one additional matter is in Clause 40(3)(b), which refers to evidence of,
"the sexual behaviour of the complainant … alleged to have taken place at the same time as (or within the period of 24 hours before or after) the event".
If one is given permission to refer to previous sexual behaviour, it is limited to behaviour 24 hours before or after the event. This year I have been concerned in a case in which the complainant had a passionate sexual relationship with the defendant. The defendant was sent abroad to serve his country in a difficult and dangerous place. The complainant wrote passionate letters to him over a period of a couple of months saying what she would do to him when his tour of duty was over. When he came back, having had an extremely stressful time, he had some drinks in the NAAFI, and went to claim what he thought was his due, what she had promised she would do. A dispute arose between them; he was convicted of rape, but his appeal was allowed. He eventually obtained damages against the prosecuting authority for malicious prosecution.
Under this clause, such passionate letters written over several months would not have been admissible and the relationship, conducted at a distance, could not have been examined. Inevitably, there would have been a miscarriage of justice in that particular case. I am certain that there are many cases of a similar nature where one cannot confine the relationship between two people to what is happening at one time or within 24 hours of a particular incident. Experience shows that judges are alive to the difficulties of allowing evidence about previous sexual history and that such applications are successful only when they are made responsibly and with proper grounds.
There is much good in the Bill, but many of its provisions simply put good practice on a statutory basis. We shall support it. We hope that it is not trumpeted as a massive new reform to put right what the judges have got wrong, as that would simply be a public relations exercise. We shall have to develop in Committee some of the criticisms I have made.
7.35 p.m.
Lord Cope of Berkeley: My Lords, it would be rash of me to attempt to sum up the expert debate over the past few hours. However, I should like to welcome the contribution from the noble Earl, Lord Rosslyn, and to express the hope that his duties will allow him to contribute to future debates, not only on this Bill but on other matters.
I am grateful for the helpful attitude expressed by the Minister in opening regarding amendments, and for the publication of the new style Explanatory Notes on Clauses. I found them to be helpful, particularly as I have only just picked up this portfolio. I am sure that the memoranda are also helpful to others, not only in this House.
At the same time, I have sympathy with the closing remarks of the noble Lord, Lord Thomas of Gresford. The Bill was "advertised" in the gracious Speech as a Bill to modernise the youth courts and give greater protection for witnesses. That phrase was repeated by the Leader of the House a day or so later. "Modernise" is a spin doctor's word which we have become used to. The Minister was much more accurate this afternoon—which we are also used to—in explaining that the main legislation for the overhaul of the youth justice system was the Crime and Disorder Act. This Bill adds an important new provision of referral to youth offender panels, as well as dealing with protection of witnesses in Part II.
This package flows in part from ideas which were floating about at the time of the previous government and, in particular, the Select Committee on Home Affairs in another place. But, as we have heard today, ideas also come from the Thames Valley, Scotland, New Zealand and, indeed, Sudan. I am glad to see those ideas come to fruition. I entirely agree with the important aims of the Bill—the reduction of re-offending—particularly by early action in the case of first offenders.
In my constituency when I was a Member of the other place was the young offenders centre at Eastwood Park. That has now changed its role and been rebuilt. For a number of years I used to visit the centre. The most depressing part of such visits was to see the prison officers pointing out the youths on their first evening in the centre—they had been there only a few hours—they believed would be regular customers of the Prison Service for the next 10 years, even though they were there for only a few weeks. They were able to say that quite clearly; and it was quite a large proportion as a rule.
Although there is a lot of information in the Bill and the supporting documents, at the moment we know very little about the panels. The quality of the membership of the panels will be crucial to the success of the proposals. We know little about their composition, training or, for that matter, remuneration and expenses. My noble friend Lady Carnegy of Lour and the noble Viscount, Lord Brentford, asked about that. Some information will be contained in guidance and regulations from the Secretary of State, but clearly the House would like more.

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Part II of the Bill deals with the protection of witnesses. We all want to see the protection of vulnerable witnesses, both children and the victims of sexual offences. It is not primarily a matter of looking after the victims properly—although we would all agree that children and others deserve to be looked after better. But if evidence is to be forthcoming and convictions obtained in the courts, proper protection is important. There is clear evidence of witnesses being seriously deterred from giving evidence, which lets the offenders off. At the same time, in the interests of justice, we must accord defendants proper rights. The noble Lord and others have rightly said that it is a question of balance.
Attention has been drawn to Clauses 26 and 27 on the use of video recorded evidence. The Law Society and several noble Lords today have objected to video cross-examination outside the trial, as provided for in Clause 27. However, there is support for video interviews being used as evidence-in-chief, with the proper safeguards. It will be extremely difficult for cross-examination and re-examination to take place on video outside a trial, particularly if it is at any time before the trial. Clearly, preparations for the trial build up to the climax of the trial and if cross-examination or re-examination is conducted at some time before the trial they would take place in a "vacuum".
Attention has also been paid to defendants who represent themselves. We heard with interest the misgivings of the noble and learned Lord, Lord Bingham, and others about the proposal. We heard again today about the two hard cases which gave rise to the provision, which we must examine carefully. Apart from the question of whether the provision is desirable, there is the awkwardness of an unrepresented defendant being resistant to appointing a lawyer, thereby making it necessary for one to be appointed by the court. We recently discussed that matter in the Northern Ireland context where similar provisions are being introduced in respect of terrorist organisations. I was struck again by the phrase which occurs in Clause 37(5) that the lawyer appointed by the court:
"shall not be responsible to the accused".
I realise that every lawyer's first duty is to the court, but in cases where emotions run high, as they would in this instance, the accused would be concerned if he believed that his lawyer was not "responsible to" him. I believe that that is a most unhappy phrase in the Bill.
More widely, there is a potential difficulty with the European Convention on Human Rights in refusing permission to the defendant to conduct his own defence throughout the proceedings. There is a cursory statement from the Minister at the front of the Bill, pointing out that the whole Bill complies with the convention. But that does not conclude the argument and I forecast that during later stages there will be a certain amount of discussion on it.
A great deal of attention has been paid both inside and outside your Lordships' House to the issue of victims being questioned about their previous history, particularly in sexual cases. That requires the leave of a judge, but it is thought by some, including the Government, that judges are too lax in permitting such
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questions. Hence these clauses, which are a criticism of the judiciary in this respect. Today we had evidence by reference, rather than in person, to the noble Baroness, Lady Mallalieu, who takes the opposite view. If evidence is required, why is it being provided for in statute rather than by practice direction or other existing means which might be more satisfactory and flexible in the future? I do not believe that we can entirely solve the problem in the wording of a single statute and we may need to develop that wording. Furthermore, we will need an explanation of the rationale behind the choice of 24 hours as the restriction.
Chapter IV extends the reporting restrictions, referred to by my noble friend Lady Macleod and the noble Earl, Lord Mar and Kellie. Any restriction on the press should be examined carefully. But it is right that the current restrictions should apply from the first allegation of an offence and not just from the beginning of the proceedings. However, I do not know how often newspapers reveal the names of young offenders in particular and whether the mischief needs to be dealt with.
Chapter VI limits the right to silence, which has not been widely referred to today. It follows the Murray case in Northern Ireland. I believe that different circumstances apply in Northern Ireland, but I do not want to get into that argument at the moment. Under the Bill, one can draw inferences from the silence of an accused only if it occurs after his legal representative is present. That will cut out what the accused failed to say at the time of his arrest, or when he was questioned on the spot, or immediately after the offence. Those with more experience than I would be able to judge whether words said at that time are of importance. I believe that the introduction of Chapter VI will require a change to the police caution.
Many provisions in the Bill are left for regulations, guidance and statutory instruments of one kind or another. We do not yet have the advice of the Select Committee on Delegated Powers and Deregulation in that respect. I believe that when many important issues are to be left to statutory instruments, as is the case with this Bill and the Access to Justice Bill with which we dealt yesterday, the case is strengthened for this House to scrutinise statutory instruments more thoroughly. We have no provision to make amendments to statutory instruments—no equivalent of the Committee procedure—and we have a custom of not voting against them. Therefore, the Minister cannot rely too much on the fact that the affirmative procedure provides a parliamentary safeguard. The safeguard is fairly flimsy.
The noble Lord, Lord Northbourne, spoke of the Government spending money on prevention as opposed to cure. I am not sure about spending money. The financial effects of Part I of the Bill are given in the memorandum as a saving of £4.5 million, so no extra money is expected as far as Part I is concerned. In the longer term, it is hoped that the success of the Bill in reducing youth offending will lead to even greater savings. We all hope that the Bill will be successful and will lead to a reduction in youth offending, but it seems to me that the Treasury is, in the literal sense, already counting on that in making its calculations.

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I have skimmed over a large number of questions. I do not expect that we shall hear all the answers this evening. However, I have signalled some issues to which we shall need to return and reflect on in Committee. In general, I support the aims of the Bill and, in the light of today's debate, I believe it was extremely wise to introduce the Bill into your Lordships' House first.
7.50 p.m.
Lord Williams of Mostyn: My Lords, I am grateful for the quality of the maiden speech from the noble Earl and for the reciprocation of the attitude that I put forward on behalf of the Government at the beginning of the debate: namely, that I would approach all these matters with an open mind and that I would genuinely value and welcome any opportunities to hold consultations about particular details. I am referring to the points made by the noble Viscount, Lord Colville of Culross, when we will have an opportunity to meet together with advisers and officials.
I hope your Lordships do not think that I do a discourtesy, but, essentially, the discussion has fallen into two parts: a discussion on Part I, which seems to be approved and welcomed generally, and the detailed questions about the conduct of criminal trials. I shall deal with the observations made and the questions asked in those two categories, if that is convenient.
The noble Lord, Lord Rix, who spoke towards the end of the debate, spoke about timescale. Project management issues and the development of a training strategy are being considered at the moment by the steering group which was established after the publication of the Speaking Up for Justice report, so that report is continuing.
The noble Lord asked specifically—and it is a proper question, if I may say so—about the discrepancy in penalties available for sexual offences against patients as opposed to others. I can assure your Lordships and the noble Lord—I know he has a particular interest in this area—that the penalties for sexual offences generally are already being considered in the wide-ranging review of sexual offences which was announced earlier this year. That is why it is in that category, rather than as part of the Bill.
The noble Lord is quite right in his deep suspicion that "suffering from mental disorder" is a term of art on the part of the parliamentary draftsman. I confirm his worst and gloomiest suspicions.
The noble Lord also asked about good guidance. Again, I take his point. We recognise that we shall need to produce good practice guidance for all working in the criminal justice system. That will form part of the implementation programme. A virtue of having a Bill of this sort is that one has to have, as he said, not simply fine words, but one has to look to a monitored, structured and disciplined implementation.
A little while ago now, the noble Lord, Lord Dholakia, asked whether or not the panel should be regarded as a court. We do not look upon the panel as a court. It is the facilitator of the contract. If there is a
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breach of the contract, it is for the court that made the original order to come to a conclusion as to whether or not the breach has been proved to its satisfaction on the usual basis, and to decide whether to revoke the order or to deal with the offender for the original offence. If the court does the latter, then the question of proportionality, which I entirely recognise, is to be determined by the court.
The noble Baroness, Lady Carnegy of Lour, asked about the details of recruitment and training. Clause 6(4), as she rightly observed, allows the Secretary of State to make regulations governing qualification to be laid down, together with recruitment criteria. I entirely agree that those details will be extremely important and we propose to consult as widely as possible with all relevant, professional bodies to ensure that we set appropriate criteria.
The noble Lord, Lord Warner, confirmed that recruitment is to be carried out by the local youth offending team, with the aim of encouraging the involvement of experienced youth justice practitioners, including magistrates, the police and, importantly, lay people. We shall be turning our minds to the question of national standards for the training required by panel members and those will be issued on behalf of the Secretary of State.
The noble Baroness also asked whether or not there would be legal representation in front of the panel. The answer is no, because it is not a court and we do not want over-formality and the over-legalism of legal representation at that time. I believe that the noble Viscount, Lord Brentford, allied himself with the noble Baroness's question. I can confidently restate that that is not in breach of the European Convention on Human Rights.
The noble Lord, Lord Northbourne, specifically asked whether the young person has a choice. I say yes. That is the whole purpose of this. It is a novel step in dealing with young offenders. I entirely agree with his phrase that it gives them ownership, in part, of their own redemption.
There will certainly be a place for befrienders where appropriate. They may take a role as part of the panel, and the panel could certainly specify them to be in contact with the young person who signed the contract.
The noble Viscount, Lord Brentford, asked whether the Bill should set out the principles of restorative justice. We have tried to imbue the first part of the Bill with those principles as part of the substructure of the Bill.
The noble Viscount asked about those who might be in care. Probably in most cases the appropriate representative of those in the care of the local authority, would be the relevant social worker.
The noble Viscount asked for any distinct news that I could give about the Thames Valley project, which the noble Earl, in his maiden speech, so helpfully described. The results are undergoing independent evaluation by researchers at the Institute of Criminology at the University of Oxford. We await that evaluation and conclusion with keen interest. When pilot projects have been set up, we have tried not to look at the headline

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results, which the noble Viscount mentioned, but to rely on evidence-based practice—the Home Secretary is keen on that—to find out what actually works.
I turn to the questions raised in a number of different ways about unease in court procedures, the protection of vulnerable witnesses and changes in the ability of a man or a woman to represent him or herself. The noble Lord, Lord Cope, is right in the question he alone raised. A change to the police caution is likely to be needed and that will be addressed separately.
The noble Lord, Lord Thomas of Gresford, asked about cross-examination by video link. That is likely to be relatively rare. The advantage of it is that if witnesses are particularly distressed, one can give them a particular time when they can undergo cross-examination on video, as opposed to the endless delays that seem to consume our system at the moment.
In regard to the noble Lord's reference to his client who had the passionate letters, those would remain admissible by virtue of Section 41(1)(b). I can assure him, and any future potential clients, who are unfortunate recipients of such epistles, that they will be admissible.
There is no policy here to reduce the number of acquittals, but I think that everyone concerned with this has to ask themselves why so many allegations of rape are made, so few come to the trial process and the rate of acquittal is low. That is not necessarily wrong. I agree with all noble Lords who have said that. It is not simply what happens in court that matters, or what happened as regards the two headline cases to which the noble and learned Lord the Lord Chief Justice referred. What matters is the genuine fear that we have established—I do not think it can be doubted—that women are reluctant to go to court because they fear the consequences, not of proper cross-examination or of questioning in the interests of a defendant, but of what in the past has amounted to grotesque, humiliating bullying. If women and young children simply will not go to court, it is unjust from the individual's point of view and from that of our society.
The noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Ackner, asked why a man, in the context of marital rape, should not be able to put his cross-examination individually to the complainant. A man accused of raping his daughter of six or grossly and indecently assaulting her, is presently not allowed the "right" to cross-examine. That is our law and it has been since 1991. So this is no new step. One also needs to bear in mind the pressures on the family relationship, which may be deeply distressing and intimidating even to a bona fide complainant.
So we therefore introduce the concept of the independent person designated by the court who may carry out cross-examination. He is not responsible to his client because in the normal sense the defendant is not his client. But he can perfectly ably and professionally carry out cross-examination—for instance, on the basis of the complainant's evidence; on any medical evidence that there might be and on any material which might have been provided by the defendant even though unwilling. He might have made statements to the police which would be the proper basis for cross-examination.
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I do not believe that we shall have more miscarriages of justice. I do not believe that there is any evidence that the prohibition to which I have referred, of a man cross-examining personally the child complainant whom he is alleged to have cruelly mistreated, anecdotal or otherwise, that miscarriages of justice have come about. I fully recognise the points put by the noble and learned Lord the Lord Chief Justice. I promise, as I did before, to reflect on them. But there is still in this country a very strong view, which may well be legitimately based—I believe it is—that women complainants in allegation of rape (they are not proved at that stage) will not properly be dealt with by the criminal justice system. It is not just the two cases, but the belief. I believe that our change in the law will do something to take away that belief.
Clause 38 is designed to avoid the accused being prejudiced by the fact that he is prevented from cross-examining in person. It seems to me that that is a perfectly proper protection for the defendant if the judge explains it and gives a correct direction. The noble and learned Lord the Lord Chief Justice referred to the Scottish experience about there being a "gateway" as it were, which is the interests of justice test. Research into the effectiveness of the Scottish legislation came to the conclusion that that gateway was very widely drawn and that previous sexual behaviour evidence was admitted much more often than intended by Parliament. I am referring to the Scottish Office Central Research Unit research conclusions of 1992 as regards sexual history and sexual character evidence in Scottish sexual offence trials.
One needs to draw the distinction, which the noble and learned Lord, Lord Ackner, did, between the question of consent and belief in consent. If one puts one's mind and eye to the detail of the Bill, that distinction is perfectly clearly drawn. There is no question here of altering the burden of proof; it remains intact. I know of the comments made by the organisation, Women Against Rape. Our conclusion is that it is important to protect women both from inappropriate questions and the inappropriate questioner.
Reverting to the question which I put as part two of our discussions, the noble Viscount, Lord Colville of Culross, asked a particular question about video cross-examination. It will be perfectly possible for the court to direct that a witness's evidence be admitted on video and then to direct that any further evidence, which may well be necessary, or cross-examination, could be carried out on a live link. The noble Viscount asked about video cross-examination. The whole purpose of Clause 27 is to reduce the trauma of giving evidence for vulnerable or frightened witnesses. I take his point about the Criminal Procedure and Investigations Act 1996, particularly his point about pre-trial disclosure. I tend to agree with him that cross-examination would not be able to occur until the relevant material had been disclosed. We would not anticipate courts making directions under Clause 27 until a plea and directions hearing had taken place.

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I totally agree with him that it is for the courts and the Crown Prosecution Service to focus particularly on these questions. Without any further reflection and as an immediate response, I am bound to say that his suggestion that video link cases ought to be prioritised and possibly marked in a special way, is really important. The same applies to his suggestion that judges must manage cases and give priorities for plea and direction hearings. They ought to have the power to make directions, for instance, that the defendant attends promptly for appointments. That is all consistent with the Lord Chancellor's view that we must manage cases and not let the legal system manage us.
Generally speaking, I believe those are the issues that have been raised. There was a particular question from the noble Viscount, Lord Colville of Culross, as regards Clause 26(3). The test is virtually the same as that in the present test in Section 32(4) of the Criminal Justice Act 1988. If the noble Viscount were to look at that he will see that it is virtually identical. The noble Baroness, Lady Anelay of St. Johns, suggested that we went wider than the Speaking Up for Justice recommendations. In fact, the list of offences in Clause 57 is slightly narrower than the list of offences in Part I of the Criminal Justice Act 1991.
Those are the points which struck me as being of significance when we debated these matters. There is no doubt that the concept of the youth panel is capable of being a milestone in the way in which we deal with young offenders. It is critical to get at them immediately. I was pleased to note the general welcome for this concept. If these first steps are successful, the Secretary of State will be able to expand the concept, as the noble Lord, Lord Thomas of Gresford, said. I agree with the thought that the noble Lord put forward. We do not want to stand still on what is bound to be, in the nature of things, a limited category of first offenders who plead guilty.
Certainly, there is a good deal of food for thought in the detailed questions raised about what I can generally describe as court and court-related procedures. I respectfully reiterate the suggestion that if Peers and advisers meet with Ministers, officials and advisers in whatever context or category is thought appropriate, we shall get a better outcome. I am quite sure that many of the fears that have been raised are capable of being assuaged. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

European Parliamentary Elections Bill
8.8 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that this Bill be now read a second time.
This is the sixth occasion that this Bill has been brought before this House so my place, if not in history, but at least in the Guinness Book of Records, is well secured. On every prior occasion the wishes of the elected Chamber were thwarted and they were spurned
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in a particular way. It was the power of the hereditary veto which won on every occasion. I do not know whether we shall see that again tonight. But even if we do, all it will mean is that the Bill will become law a good deal quicker than if we had gone through the stages of this Bill in the normal way. I suppose that that would be what some lawyers call an uncovenanted benefit.
The Bill is perfectly simple. It introduces a system of proportional representation—a manifesto commitment—using a party list system. It is worth bearing in mind therefore that it replicates the system for Northern Ireland which was introduced by the Conservative Government. It puts into the European equation the scheme already adopted in both Houses in the Scotland Act and in the Government of Wales Act. We should bear that fact in mind.
I know that your Lordships will not want me to wander about the Bill any further, because I believe that I have done so on a number of previous occasions. Indeed, there cannot be anyone in the world, let alone in your Lordships' House, who does not know and is deeply interested in the intricacies of whether or not the party list should be open, simple or closed.
The noble Lord, Lord Mackay of Ardbrecknish, said on an earlier occasion that it is different in Wales because it is only part of the electoral system. Exactly so: 20 out of 60. But which 20? If the general election results were broadly the same in the Welsh Assembly elections, it would be the very 20 seats and the only 20 seats that the Conservatives could possibly hope to get. So it is different; it is different, to the advantage of the Conservative Party in Wales. However, I am sure that that is just coincidental.
To assert that this is a principled rejection of a government Bill is humbug. It is most attractive humbug and attractively displayed, as I heard it described this morning on the "Today" programme by the noble Lord, Lord Strathclyde; but it is still humbug. We know what the advantages of the system are: it provides and produces a proportionate outcome. It enables women, ethnic minorities and areas of particular expertise to be more fully and fairly represented. It avoids internal party candidates fighting each other as well as the opposition—the point made by Lord Bethell, which has never been answered. Let us not overlook the fact that voters in this country have never ever been asked to choose between rival candidates for the same party.
Finally, and most importantly, candidate A cannot be elected with fewer votes than candidate B in the same election. On every occasion when I trespassed on your Lordships' past patience I have made those points and no one has ever challenged any one of them on every occasion. The noble Lord, Lord Mackay of Ardbrecknish, has certainly gone on the Scottish and Welsh theme, but he has never challenged any of my propositions.
There are 60 million people living in our country. The wishes of the Chamber elected by that country have been flouted by 700 families, or their present representatives. Mr. Hague's hereditaries—that component of our legislature which he is on record as

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describing as "silly"—have won so far. Mr. Hague has either directed the use of the hereditary veto or he has connived in it on five distinct occasions. That is the true struggle of principle. Is unaccountable power to triumph over elected representatives and their wishes?
I do not intend to say any more. I believe deeply and unshakeably that this continued abuse of entrenched power is a very profoundly wrong thing to do.
Moved, That the Bill be now read a second time.— (Lord Williams of Mostyn.)
8.13 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish rose to move, as an amendment to the Motion, That the Bill be now read a second time, to leave out all the words after "That" and insert "this House declines to give the European Parliamentary Elections Bill a Second Reading on the grounds that it includes an undemocratic 'closed list' system providing for the selection of MEPs by party choice, an approach which would end the historic right of the British people to choose the candidates they wish to be elected, a step for which the House notes with great concern no mandate was sought or given at the last general election".
The noble Lord said: My Lords, I beg to move the amendment standing in my name on the Order Paper.
Perhaps I may, first, congratulate the noble Lord, Lord Williams of Mostyn, on his stamina. I think that two Second Readings in one day is not too bad. Perhaps we can forgive him for the brevity of his speech in introducing this particular Bill. Indeed, perhaps we may also forgive him because we know that the argument in favour of a closed list as against the open list is pretty fragile and that it is much easier to have a go at your Lordships' House than it is actually to debate the issues involved in the Bill, especially the particular issue which your Lordships have felt obliged to debate with the other place.
In moving my reasoned amendment tonight, I am actually inviting noble Lords to bring the issue to a decision now. We could allow the Bill a Second Reading and in January we could go through the various stages and insert our previous amendments, if that was your Lordships' wish, in favour of the open list. Then, some time in the second part of January—but, I suspect, no later—we would get to the moment of decision. We would have to decide whether to insist on our principled stand and, if we did, the Government would have to decide whether or not to use the Parliament Act.
I am inviting your Lordships to advance that decision by a very few weeks. If noble Lords decide to support me in the Lobbies tonight and carry my amendment, the Government would have three choices. They could, of course, drop the whole idea and go back to first-past-the-post. They could come forward with a No. 2 Bill with the open list in it—a Bill to which I would be advising my noble friends to give a speedy passage. Alternatively, as the noble Baroness the Leader
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of the House said to your Lordships on 18th November, they could introduce the Bill "in the next Session", which they have done,
"under the procedures of the Parliament Acts".—[Official Report, 18/11/98; col. 1360.]
So they could in fact use the Parliament Acts.
Indeed, nothing we can do will prevent the Government getting the Bill if they choose to do that. I make no complaint in that respect. I actually believe that, ultimately, the Commons should get their business. After considerable reflection, my view is that we should bring the matter to a head this evening. As Shakespeare said, in what I think one should describe as the Scottish play:
"If it were done when 'tis done, then 'twere well It were done quickly".
I believe that to be the position.
I accept that the Government have a clear mandate on the generality of the Bill. I shall quote from the manifesto, which I keep near me so that I do not stray into error at any particular time. I see in that document the words:
"We have long supported a proportional voting system for election to the European Parliament".
I am not disputing that and I do not ask your Lordships to do so. Moreover, I make no secret of the fact that I am not in favour of proportional representation. The fact that it may advantage my party at any particular time is, dare I say it, a very unprincipled argument. I am surprised that the noble Lord, Lord Williams of Mostyn, advanced it.
The latter is in fact an argument which is dear to the hearts of the Liberal Democrat Party. That party does not seem to understand that someone can actually have a principled belief in first-past-the post. I do. Its members seem to think—and they do so again this evening—that they are the only people with any right to have any principle. Indeed, I am glad to hear that they seem to agree to that. However, ironically, they appear to have modified their stand on proportional representation when it suits them. Perhaps I may remind them of what their honourable friend Mr. Allan said in the other place on 27th October:
"My party's position remains consistent. Our preferred option is neither a Belgian nor a Finnish model, but one closer to home—the Northern Irish model of the single transferable vote".—[Official Report, Commons, 27/10/98; col. 183.]
It seems that the Liberal Democrats have set aside their principled support for the single transferable vote in favour of a closed list. In the light of the Government's manifesto commitment, I am prepared to set aside my principled support for the first-past-the-post system, though certainly not in favour of a closed list but in favour of an open list. The difference is simple, yet it is profoundly important for representative democracy.
We in this country have always voted for an individual, albeit these days the individual carries a party banner, in order to represent us in Parliament. That individual has usually been chosen—indeed, almost always—by the party membership in each constituency. However, that will change next June. We will be asked

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to vote, and only to vote, for a party. Who the winning candidates are to be will be decided by the party; the people, the voters, will have no say, no choice.
In contrast, in the open list system, we would vote for an individual of our choice within the party list of the party of our choice. The number of MEPs for each party would be decided from the party totals in exactly the same way, but which individuals would be elected would be decided by the people who voted for the party and not by the party high command; in other words, the people's choice and not the party's choice.
I have argued the points that the Minister put forward this evening on a number of occasions. Perhaps I may review them; for example, the Northern Irish one: "You Tories used the closed list for the Northern Ireland Forum elections". Yes, we did; but that was for the forum and for the very special circumstances of Northern Ireland where we wanted as many people represented there as possible in order to advance the peace process. It has nothing to do with the Parliament. It was very specific and done for that reason only. No one, not even the noble Lord, Lord Williams of Mostyn, can imagine that the circumstances in the European elections are anything like the circumstances in Northern Ireland, or that the European Parliament would have to do the kind of job that the Northern Ireland Forum was going to be asked to do. Indeed, no one can imagine that.
Moreover, I do not have to look further than the current Prime Minister for support in my case that there is no comparison. On 21st March 1996 in the other place, Mr. Blair said:
"As I am sure that the Prime Minister"—
at that time John Major—
"would agree, the solution on the election process is certainly not ideal".—[Official Report, Commons, 21/3/96; col. 499.]
Given those words, I should caution the noble Lord, Lord Williams of Mostyn, against pretending that the closed list is ideal; otherwise his leader might hear about this contradiction.
Next we have the proposition that some candidates may be elected with fewer votes than other candidates who are not elected. But not within the same party. That is quite important. The electorate will have no trouble with this issue. They will quite understand that a candidate in a party which does not receive as many seats may not be elected yet he may have more votes than a candidate who is elected in another party. That happens at the moment in first-past-the-post elections. I shall not weary your Lordships by quoting the seats in which the second or even the third candidate in one seat gained fewer votes than the first in another seat. The electorate do not rise up in the streets about that. We have a sophisticated electorate who understand these matters perfectly well.
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Then there is the fact that we accepted the closed list for Wales and for Scotland. However, those Bills were about much, much more than the electoral system. They not only sought to enact clear manifesto commitments to devolve power to Scotland and to Wales; but they were also endorsed—although, in the case of Wales, just—in referendums. As the noble Lord, Lord Williams of Mostyn, pointed out in his defence—although I suspect that it is more in mine—the Parliament in Scotland and the Assembly in Wales will have a majority of traditional first-past-the-post members. Those drawn from the closed list will be a minority. That does not mean that I was particularly happy about the systems in those Bills, but they were larger Bills and addressed much greater issues than just simply the election. I warned the Government about the system they proposed, and they turned a deaf ear. In Scotland—I know not about Wales—the Government are panicking. They are proposing to spend vast amounts of taxpayers' money to try to "educate" the population on how those votes are to work.
More importantly, the noble Lord, Lord Williams of Mostyn, should not have reminded me about Scotland. The Select Committee on Scottish Affairs in another place published its report on 18th November. It was looking at what it called the "operation of multi-layered democracy". It looked, among other things, at the electoral system.
The committee voted on paragraph 91. Some members of the committee did not want the last sentence; others did. When it came to a vote two Labour Back Benchers—I do not know whether I insult them by calling them "Blair babes"—voted for the sentence to be removed. Four members of the committee voted for it to be retained. One of them was my honourable friend Mr. Desmond Swayne; two of the others were Labour Back Benchers, Mrs. Irene Adams and Mr. Eric Clarke. Just to cause a little bit of discomfort to the Liberal Democrats, perhaps I may add that the fourth person was Mr. Michael Moore, who I understand is the successor of the noble Lord, Lord Steel of Aikwood, in his Borders seat. They voted in favour of retaining this sentence:
"We feel that an open list would be more in keeping with the principle of trusting the people and giving them the maximum choice".
That was agreed not by the Tories on that committee—because, quite frankly, there are not many Tories on the Select Committee on Scottish Affairs—but by the Liberal Democrat Member and by two of the Labour Members. I shall repeat that sentence so that your Lordships can appreciate that it fully backs the case that we have made about this Bill:
"We feel that an open list would be more in keeping with the principle of trusting the people and giving them the maximum choice".
The final argument that I want to address, in order not to disappoint the noble Lord, Lord Williams of Mostyn, is that the closed list enables a party to get a mix of candidates elected who would not be elected if it were left to the electorate. That is a funny idea of democracy. "Trust the people" is clearly an out-of-date

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phrase in the new Labour lexicon. It is now "the people should trust the party". Shades of 1984—the book, not the year.
Lord Eatwell: My Lords, I wonder whether the noble Lord can help me. I am puzzled by the reference in his amendment to,
"the historic right of the British people to choose the candidates".
Can he tell me of one example in modern times of the electorate at the ballot box being able to choose between alternative candidates of the Conservative Party? In other words, can he give me one historic example of the electorate being able to choose other than from a Conservative Party closed list?
Lord Mackay of Ardbrecknish: My Lords, we have discussed this before as the noble Lord would know if he had attended. The first-past-the-post system is not a "list system" in the sense that we are discussing such a system. It is a "one member, one vote, one person is elected" system. It is quite different. People can make a choice about the individual. They can decide to vote for the individual or not—as, for example, they did in Tatton.
Earl Russell: My Lords, perhaps I may assist the noble Lord. Choice between candidates of the same party was normal in the two-member constituencies which were common until 1950.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Earl for that. I knew that I could rely on him to come to my aid when it came to the history of these matters. That was not too long ago, but the two systems are profoundly different. I am amazed that the noble Lord, Lord Eatwell, for all his brilliance, does not understand the difference between first-past-the-post single-member constituencies and regional lists which will mean a number of members being elected from the one party.
I was about to come to Scotland. The members of the Labour Party in Scotland were not consulted in any way about the European list, let alone asked to take part in any one member/one vote election. A London-dominated selection panel decided. Two sitting MEPs were placed one and two, but when it came to number three—also likely to be elected—the other two sitting Labour MEPs suffered the drop; down they went to numbers five and seven. It served them right, I suppose, because they are Old Labour and they were not on message. In at number three came Kathleen Walker Shaw. "Who is she?", I hear your Lordships ask. "Who is she?", we Scots asked. "Who is she?" the Labour Party in Scotland asked. She turned out to be a GMB union official who works in Brussels. Was she Scottish? A good question. "Yes", she said, "I am Scottish; I was born in Aberdeen". Unfortunately for the young lady, along comes a by-election in the SNP-held Euro-seat of North East Scotland caused by the death of Alan MacCartney, who took the seat from Labour at the previous Euro-election. Kathleen Walker Shaw was parachuted in from London without as much as a "by your leave". But why not? She was born in Aberdeen,
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was she not? She was third on the list. Along comes a nasty newspaper and obtains her birth certificate. Her place of birth? Not Aberdeen; but Stafford. Poor Miss Walker Shaw is challenged. "It is all a misunderstanding", she said, "I was born in Stafford, but I was conceived in Aberdeen". Can your Lordships imagine the 'phone call? "I am having some difficulty, Mummy. I claimed that I was born in Aberdeen to give me a Scottish connection and they have rumbled it. Where was I conceived? Would that be helpful?" I ask your Lordships to imagine yourselves making that call.
Of course, the electorate gave a resounding thumbs-down to this mysterious, unknown lady who did not even know where she was born. The by-election, which was billed to be a two-horse race between Labour and the SNP, turned out to be a disastrous humiliation for Labour. The people dumped their imposed candidate into third place behind the Scottish Conservative candidate, Struan Stevenson. After that experience, I am surprised that the noble Lord, Lord Williams of Mostyn, still thinks that the party knows best.
On a number of occasions, I have drawn your Lordships' attention to the opinion of Labour Members in another place—not their Whipped opinions in the voting Lobbies, but their expressed opinions in debate. Every time this Bill was debated in another place, for every Blair babe dragooned into speaking in support, two or three more Labour Back Benchers came forward to condemn the closed list. Jack Straw defended it in a kind of a way. I am not surprised it was "in a kind of a way" because in 1985, in an article in The Times headed "What's so fair about PR?", this is what he had to say about the list system:
"Where PR is based on a list system with votes effectively cast for a Party and the winning candidates taken, pro rata, from each party's list, power passes from the individual constituency party to those who draw up the list".
That is exactly the point.
I agree with Jack Straw. I invite your Lordships to agree and to say to the Government, "We believe it should be the people's choice who represents us in Brussels not the party's choice. If you want this fundamentally undemocratic system, use the Parliament Act, and may there be lots more Kathleen Walker Shaws to haunt you". I beg to move.
Moved, as an amendment to the Motion That the Bill be now read a second time, to leave out all the words after "That" and insert "this House declines to give the European Parliamentary Elections Bill a Second Reading on the grounds that it includes an undemocratic "closed list" system providing for the selection of MEPs by party choice, an approach which would end the historic right of the British people to choose the candidates they wish to be elected, a step for which the House notes with great concern no mandate was sought or given at the last general election".—(Lord Mackay of Ardbrecknish.)
8.30 p.m.
Lord Jenkins of Hillhead: My Lords, I think we all admire the inexhaustible capacity of the noble Lord, Lord Mackay of Ardbrecknish, to make an endless

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series of ingenious speeches on this issue. It is almost exactly 13 months since I last opened my mouth in your Lordships' House. That is partly because I was rather occupied for much of the time with the commission on the voting system for another place. But it was also the case that I rather firmly believe that when one gives up a leadership one should not be hanging around constantly jogging, or trying to jog, the arm of one's successor. One should let him get on with the job. I must say that I think the noble Lord, Lord Rodgers of Quarry Bank, has got on with the job magnificently and has shown great skill, wisdom and authority in this House.
There is a good deal of discussion at the moment about the need for declarations of interest. I hope I may take the opportunity to declare a non-interest. To my total amazement, I read in the Sunday Times that I was lobbying hard to be made chairman of the Royal Commission on the second stage of the reform of this House. My Lords, I heaved a great sigh of relief when I completed my work on electoral reform at the end of October. The idea that at my age, or indeed at any rational age, I should be looking for another commission within six weeks is frankly farcical. The difficulty with a total perversion of the truth in a Sunday newspaper is that one cannot correct it for seven days—seven days when falsehood has seven league boots and the truth can only limp along slowly behind it. So perhaps your Lordships will permit me to take a minute or so to set the record straight. So far from seeking that job, I would not accept it if, improbably, it were offered. But it is extraordinary what statements, without any foundation, or any subsequent evidence of shame on the part of the authors, one reads in relatively serious papers.
The Bill has had a remarkably tangled history. This applies particularly to the specific issue raised in the very unusual wrecking Second Reading amendment that has been moved by the noble Lord, Lord Mackay of Ardbrecknish, on behalf of the Opposition. I must tell your Lordships that I am in favour of open lists. With the unanimous support of my commission, I recommended them for Westminster, and I take the same view about elections for the European Parliament. In that respect I am no different from other members of my party except that I have had to spend a lot of time studying the different open or semi-open systems applied in some other countries and in trying to see what are their effects.
My main conclusion is that in practice they make remarkably little difference. I very much doubt whether more than one, or at most two, of the 87 Euro-seats would end up in the hands of a different individual if open lists rather than closed lists had been preferred. Nevertheless, I believe that the Government would have been wise to do so on at least two grounds. First, the right to freedom of choice is important even if not all that many people choose to exercise it. Secondly, excessive power for party machines is deeply unpopular. That was perhaps the clearest single message which we received from our consultative hearings around the country. So I regret that this Government in the Commons were so stiff-necked on this issue.
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That being so, I deliberately did not vote in the first couple of stages in the game of ping-pong, but I decisively changed my attitude after that, for three reasons. First, it is a ludicrously narrow issue on which to have one of the biggest and longest running Lords-Commons clashes for decades. Secondly, closed lists are a minor evil. But to lose the Bill and to go on with the old distorted and totally isolating from the rest of Europe system of voting for the European Parliament would be a major evil. The legislative process is essentially based on not allowing the best to be the enemy of the good. Thirdly, and perhaps most importantly, there is the fact that it is simply impossible to take seriously the sudden passion of the Conservative Party for open lists. I have long been in favour of them. I am not aware that the Conservative Party has been. On the Scotland Bill and the Government of Wales Bill, it did not seriously engage. Even at the beginning of this Bill the Conservative Party did not give the issue much priority. It has been a late flowering passion of opportunism. Well, a little opportunism has to be acceptable—it very frequently exists—but it ought to be wise opportunism. When I look at the present state of the Opposition, I am not sure that it has been that.
There is one further point on the Bill itself. I find it impossible to give any constitutional credence to the argument that the Bill is not entitled to what can be called manifesto protection. As I understand it, the argument goes like this. It is admitted that the Labour Party announced in its manifesto that it would introduce proportional representation for the European Parliament but it did not specify whether it should be by closed or open lists. It is argued that, therefore, the House is perfectly entitled to impose its will over that of the Commons on the shape of the Bill. If that central proposition is seriously advanced, it makes nonsense of the Salisbury rules, of the Addison doctrine and of every other convention which has grown up to civilise relations between the two Houses of Parliament.
Of course details of Bills are not specified in manifestos. They never are. But if that is to entitle the Leader of the Opposition, whether he be right or wrong, to dictate the shape of any Bill and to say to the Government, "You can have the Bill but you can only have it in my shape", and in the shape which has been rejected, rightly or wrongly, by the considered will of the majority in the Commons, five, six or seven times now, that is, in my view, a very revolutionary doctrine.
The noble Lord, Lord Strathclyde, is apparently to blood himself this evening in a cavalry charge. In literally a few weeks it will be one hundred years since Omdurman, when the last such charge took place, so perhaps there may be a certain appropriateness. But, before noble Lords take themselves too seriously, they might recall the deflatingly elegant words of Arthur Balfour, Tory leader at the time when Conservative Peers were last getting themselves into a great state.
In July 1911 Balfour wrote:
"I regard the policy which its advocates call 'fighting to the last' as essentially theatrical, although not on that account necessarily wrong. It does nothing. It can do nothing. It is not even intended to do anything except advertise the situation. Their policy may be a wise one, but there is nothing heroic about it and all military

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metaphors which liken the action of the fighting Peers to Leonidas at Thermopylae seem to me purely for music hall consumption. I grant that the music hall attitude of mind is too widespread to be negligible. By all means play up to it if the performance is not too expensive".
Admittedly Balfour ceased to be Leader of the Conservative Party three and a half months after he wrote those deflatingly elegant words. But I suspect—although one never knows until the play is over—that he will stand in history higher than Mr. Hague.
Mr. Hague and the noble Lords, Lord Strathclyde and Lord Mackay of Ardbrecknish, will have their cavalry charge and the Government will have their Bill. I do not know whether the Conservative leadership thinks it will he a humiliation for the Government to have to get their Bill under the Parliament Acts. It will be only the fourth time that procedure has been used. But when one recollects what was the last occasion on which the Parliament Act was used—and by a Conservative Government—which was to force through the ridiculous, unwanted and inoperative War Crimes Bill, it hardly lies in the mouth of that party to talk about humiliation.
8.41 p.m.
Lord Weatherill: My Lords, when we debated this matter last on 18th November, I made the plea that it was wrong for this unelected House to oppose the will of the elected Chamber, the House of Commons, on five occasions—other than on matters of high constitutional principle. I do not think that the Bill falls into that category.
In the few weeks since we last debated the matter, I have visited my former constituency of Croydon on three occasions. On each occasion, I asked a group of old friends who was the MEP. Several of them thought that I was the MEP. The majority of them—and there are sophisticated people in Croydon, as your Lordships will expect—did not have a clue. They have no idea. That is rather bad luck on Mr. James Moorhouse, who has been an assiduous MEP. The truth is that few people know who are their MEPs.
I listened, in common with the Minister, to the noble Lord, Lord Strathclyde, on "Today" this morning. He was asked why his party under Mr. John Major had imposed a closed list system on Ulster but was against it for Europe. The noble Lord replied that the Ulster Assembly was a forum, not a parliament. In my submission, the European Assembly is much more a forum than a parliament in the sense that we understand a parliament here at Westminster. After all, in European elections we are not electing a government. Furthermore, MEPs sit in their parliament by parties, not countries. The European Parliament is much more a forum. Given that so few of the electorate know the names of their MEPs, I have reached the conclusion—rather like the noble Lord, Lord Jenkins of Hillhead—that I have perhaps changed my mind on this particular issue and that there is quite a good case for electing MEPs on the closed list system.
The closed list system will give the Conservative Party increased representation, whereas under the open list system, that party is likely to achieve few seats—and none at all in Scotland, Wales and the north of England.
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Tonight we have a dilemma. If the Government lose in the Lobbies, the closed list system will survive under the Parliament Acts—which might suit them very well. If the Government win in the lobbies, there may follow delay and possible confusion. Nevertheless, as a former Speaker of the House of Commons, I cannot support what may be expedient rather than what is right.
I repeat that we play a dangerous game if we oppose the will of the elected House of Commons for the sixth time. The Bill is not a matter of high constitutional principle and in effectively voting for the Parliament Act, we seriously devalue that coinage. I shall support the Second Reading of the Bill tonight and hope that others will do likewise.
8.45 p.m.
Lord Campbell of Croy: My Lords, on previous occasions noble Lords have criticised the closed list system and expressed their preference for the open list. I agree with them and therefore with my noble friend Lord Mackay of Ardbrecknish.
There has also been criticism that this House sent the Bill back to the other place five times in the last Session. It has been said that this, the second Chamber, must eventually give way to the will of the Commons, which will prevail in the end. I remind the House of an episode of ping-pong when that did not happen because this House was proved to be right and the Labour government of the day had to accept that was so.
On that occasion, the second Chamber successfully protected the rights of citizens. I recall the episode well because I was dealing from the Opposition Front Bench with the Aircraft and Shipbuilders Industries Bill. That Bill to nationalise those industries fell because the House of Lords persisted in rejecting Commons amendments to restore shiprepairing, a service industry that Lords amendments had taken out of the Bill. The main reason for that ping-pong and the insistence of this House was that only 12 shiprepairing firms out of about 100 throughout the country had been selected for nationalisation, using criteria that had not been uniformly applied. That part of the Bill, the Lords contended, was not appropriate in a public Bill and should receive the special treatment applicable to a hybrid Bill, enabling citizens to make their case in person, with their lawyers, to a Committee of Parliament. In the Commons, the option of referring the matter to the examiners to consider hybridity had been ruled out because the government of the day procured the suspension of standing orders with their large majority in a Division.
When the Government reintroduced the Bill in the following Session, clearly intending the use of the Parliament Acts, the Bill was first sent to the examiners impartial lawyers and parliamentary clerks. Their findings proved the Lords to be right. The Bill was declared hybrid before it had gone to either House in that Session. Then the Government withdrew the Bill. The part of a hybrid Bill deemed not to be public legislation is not subject to the Parliament Acts. Another reason must have been that the Government would have had to cope with the lengthy procedure required for a hybrid Bill.

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The Government decided to accept the Lords amendments. They offered a deal to the Conservatives through the usual channels: if the Lords amendments were made and shiprepairing excluded, would the Official Opposition allow the Bill to proceed through Parliament without further hindrance? The answer was "yes". A new Bill excluding shiprepairing was introduced and accepted by both Houses. There was no further argument about the nationalisation, which had been in Labour's election manifesto. Shiprepairing had disappeared from the Bill and the rights of individuals personally to present cases in Parliament had been successfully protected by the second Chamber. That protection of rights was achieved by the ping-pong procedure. In that case, the Commons came back three times and the Lords twice before the parliamentary Session ended and the Bill died. If necessary, we might have batted that Bill back five times in 1977. That would have been justified by the later events and the complete vindication of the Lords' objections to that Bill.
8.50 p.m.
Lord Tomlinson: My Lords, it is quite clear this evening that the main issue is the right of the country to have the votes of the democratic Chamber of Parliament count. That has been expressed far better by other speakers than I can express it myself. However, I speak tonight because in the earlier, seemingly interminable, debates that we had—they were frequently repetitive—we heard constantly the assertion of the noble Lord, Lord Mackay of Ardbrecknish, that this Bill is not supported on the Government Back Benches in principle or in detail. I rise to tell him quite clearly that I support both the principle of the Bill and its detail.
To have heard some noble Lords fulminate against closed lists, one could momentarily imagine that they were a unique device that would put the United Kingdom at odds with the civilised world and with the democratic community. Yet some 70 per cent. of the people of Europe who vote by proportional representation are represented by Members of the European Parliament, who are elected from closed lists.
Change to our electoral system is imperative. Yet the Opposition have flirted with actions in your Lordships' House which could have forced a return to first-past-the-post. That would have been one of the greatest offences to democracy, done in the name of democracy. In no other country in the European Union could a party secure 74 per cent. of the seats on the basis of 44 per cent. of the votes. Yet that is precisely what Labour did in the previous European elections: 44 per cent. of the votes secured 74 per cent. of the seats. Labour did that in 1994, and would possibly do the same in 1999 were the Opposition's flirtation with forcing a return to first-past-the-post successful. That kind of victory would be unfair, unjust, unrepresentative and undemocratic. In my opinion it is an act of great courage for a government or a party to pursue electoral justice when the short-term effect could well be electoral disadvantage.
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I want briefly to mention the alternative that was put forward by the noble Lord, Lord Mackay of Ardbrecknish, on a number of occasions. While he constantly used the word "democracy" he talked about offering electors in multi-member constituencies a single vote. If he was so concerned about full electoral choice, he should have commended the Luxembourg system where for six seats you get six votes. That is a genuine electoral choice. However, to offer in a multi-member constituency of six, eight or even 10 members one vote is really not choice. It is saying that you can have one vote and one choice but 10 people will ultimately represent you. That seems to me to be the antithesis of democracy. I hope therefore that in the interests of the rights of the democratic Chamber but also that of having a proper electoral system based on proper representation, despite the Opposition's wish for their amendment to be carried to enable them to get off the hook on which they are impaled, we shall vote against their amendment and support the Government.
8.53 p.m.
Lord Alton of Liverpool: My Lords, I support the amendment which is before the House this evening. My reasons for doing so are the same as those I have deployed at every stage that we have considered this Bill previously. Those arguments have not changed. Many of them have been rehearsed again tonight. The noble Lord, Lord Jenkins, who joined us in the debate tonight, made a point of saying that this matter is just about the narrow issue of closed lists. It is not. It is about how politics are conducted in our country, how governments are elected and how representatives represent the voters in their constituencies. It is not about games of ping-pong or even about cavalry charges. It is a central constitutional question because if how we elect our representatives is not to be regarded as a central constitutional question, one has to ask your Lordships, what is?
I wish to mention what I think have been three red herrings which have been thrown into the debate again this evening. One has been the role of hereditary Peers. It should be pointed out to your Lordships' House that without the votes of Cross-Benchers on every occasion the Government would have achieved their business. Is the moral of that story that Cross-Benchers are also to be considered for abolition on the basis that they have frustrated the Government's business?
Secondly, one might also reasonably refer to manifesto commitments. The manifesto says nothing about closed party lists, as the noble Lord, Lord Mackay of Ardbrecknish, has reminded the House tonight. Your Lordships' House can just as reasonably vote for this amendment as vote for the Bill and be in accordance with what the Government's manifesto said to voters at the previous general election. I contrast the approach adopted by the noble Lord, Lord Jenkins—who was appointed by the Prime Minister to head an independent Commission to report to Parliament and to be backed up in due course by a referendum to be put to the entire people of this nation as to how the Westminster voting

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system should be structured—with the way in which we are being invited to deal with elections to the European Parliament.
Thirdly, the other red herring is the question of Northern Ireland. It is not the forum which we should consider in this context but indeed elections to the European Parliament, and indeed this very Bill, because in this Bill before your Lordships' House tonight is a provision which was laid before both Houses of Parliament in 1984, 1989 and 1994 by the then Conservative governments and in 1979 by the then Labour government to introduce for European Parliament elections the single transferable vote in multi-member seats. Therefore there are other forms of proportional representation which have been favoured by all parties in this and the other place and which in the context of the European Parliament elections should be considered again in my view.
I have four great anxieties about the way in which this Bill is being tackled. The first concerns what we might call robotic politics; namely, that by the nature of things where you have closed party lists the kinds of people who will undoubtedly come through the list system will not be the bits of grit that have to enter the oyster to bring out the pearl but people who by definition conform. They will not be dissenting voices; they will be the politically correct. That is the way in which centralised systems of politics work. The umbilical link—which we rightly regard as so important in our parliamentary system—between the voter and the person he elects will be severed.
The second point is that this measure crushes dissent and leads therefore to a more elitist form of politics. I think that is highly undesirable. Thirdly, it destroys conscience. This was a widely overlooked question during previous consideration of this Bill. About a month ago 17 academics, Bishops and Archbishops sent an open letter to the Prime Minister urging the Government to think again about the closed party list system. The reasoning behind their argument is that in this take-it-or-leave-it form of politics of closed lists it will be impossible in the future for a voter to be able to decide between different candidates on moral and ethical questions, on issues as diverse as capital punishment and abortion or the sale of arms and euthanasia. Those have always traditionally been issues which have been hotly debated in our parliamentary constituencies, and rightly so. We could take contrary views. But under this system you will be given a list of three or four and it will be a case of take it or leave it. If three take one view and one takes another, it will be impossible to distinguish between those views. When this point was put to the Government, the Home Secretary, Jack Straw, wrote in a letter on 1st December,
"Under a closed list the voter knows exactly what he is getting—he can choose the team of candidates whose views most closely match his own. He can assess which candidates on the list are likely to he elected and make a judgment about how to vote accordingly".
What you do not know, as the Home Secretary asserts, is that you will be getting a list of candidates. How to vote accordingly will be impossible. So anyone who considers the question with any degree of discernment
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will realise, as the recipients of the letter have done, that this is no way of addressing what I think is a fundamental question.
My last point is the effect on voters. There is already deep cynicism and alienation under our existing electoral arrangements in many parts of our country. I have mentioned to your Lordships' House before that in the city of Liverpool, where I contested seven parliamentary elections, in one recent European by-election the turnout was 11 per cent. In the city council elections last May the turnout was 22 per cent. In one local council by-election this time last year, the turnout was 6 per cent. In other words, vast numbers of people, the overwhelming majority, are already staying away from the polling booths. We should do nothing to increase the cynicism and alienation that already exist.
I say to Liberal Democrats who supported the Government because of what the noble Lord, Lord McNally, described as "the deal" which had been made between the two parties that this will also damage the cause of electoral reform. Once new systems are introduced, if it is done without proper consideration and consensus, they can be damaging to the cause, such as that of proportional representation. There are many forms of proportional representation; the closed party list system is the worst. If I am faced with the choice of the closed party list or staying with the first-past-the-post system until something better can be devised, I would stay with the first-past-the-post, and I shall vote accordingly tonight.
9.1 p.m.
Lord Campbell of Alloway: My Lords, I too support the amendment. With great respect to the noble Lord, Lord Tomlinson, if he attended the previous debates he must have realised that in this context we do not oppose PR. With respect to the noble Lords, Lord Jenkins of Hillhead and Lord Weatherill, in practice the question simply does not arise of a lost Bill.
I ask your Lordships: to what honourable end shall noble Lords who are opposed to closed lists sit in this Chamber to nod the Bill through all its stages? Our function as guardian of the constitution has already been discharged to the ultimate degree. To what constructive purpose could we amend, or again insist, to delay the Bill?
As no accommodation may be had on this occasion to the point of deprivation of a basic tenet of the constitution as expounded by Burke—and I know the noble Lord, Lord Weatherill does not think much of it, but some other noble Lords do and I am one—noble Lords may think that without let or hindrance the will of another place should now be done by resort to the Parliament Acts, which enshrine the legitimacy of the amendment.
By supporting the amendment, this House neither defers to another place nor does it indulge in any form of confrontation. In effect we say: "Take your Bill on your own—but this is a matter of constitutional importance upon which we object in principle. We shall have none of it. This facet of the new style of government is unacceptable to us and to the people."

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The principle at stake transcends political affiliation. The oyster and pearl speech of the noble Lord, Lord Alton of Liverpool, put the point far better than I can.
I conclude by removing a misapprehension. The situation of disagreement between the two Houses bears no kinship with the War Crimes Bill. I was concerned in it, and it was whipped. I know, because I went into the Lobby with my noble friend Lord Denham. The objection was concerned with the prospects for a fair trial, an unprecedented assumption of extra-territorial jurisdiction and basic questions of morality. On Rhodesian sanctions, your Lordships' House was not concerned with the derogation from our unwritten constitution, of which this House stands as the sole guardian, which is the concern of this debate.
I was given four minutes and I made it in three.
9.4 p.m.
Earl Russell: My Lords, first I join in the congratulations to the noble Lord, Lord Williams of Mostyn, on the extraordinary stamina he is showing today. In today's proceedings, he is alpha and omega, the beginning and the end. The noble Lord, Lord Mackay of Ardbrecknish, used to be known in this House as "Marathon Man". Now it will be a marathon to see which noble Lord has the right to that title.
It is so long since we had the Second Reading of this Bill in the Chamber that not merely have noble Lords forgotten what I said, I have forgotten myself. I checked and found that I said two things: first, that I wished the Bill to become law; secondly, that I wished it to be amended. So long as those two objectives appeared to me compatible, I pursued both. When they appeared to me to become incompatible, I pursued the primary objective that the Bill should become law.
It is a matter of regret to me that it did not become law in the last Session. In the two-chamber parliament, compromise is essential. Without it, a two-chamber parliament is impossible. I have no desire to see a pantomime contest in which two groups of grown people hurl abuse at each other for refusal to compromise. So I shall merely regret the absence of compromise in the last Session.
However, as it stands now, our power to amend the Bill is nugatory. We may table and carry amendments, but the Bill is sailing under the protection of a naval escort from the Parliament Acts. That means that if there should be disagreement between the Houses it would be presented to Her Majesty bearing only those amendments which had been agreed by another place. That means we could huff and puff and amend the Bill as many times as we liked and those amendments would not be presented to Her Majesty to be made law.
Under those circumstances, it is true to say that our power to amend the Bill is neutered. So there is only one question which the behaviour of this House is capable of determining. That is whether the Bill becomes law in time for the European elections this June.
It is perfectly proper for this House to amend Bills about elections. For us, as for returning officers, it may be true that the onlooker sees most of the game. On the
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other hand, I do not think it proper for this House to come between the voters and an election. That is not as grave as this House rejecting a money Bill, but I think it should be regarded as a younger brother in the same family. After all, what we in this House do not have are elections. Any legitimacy we may possess is a reflected legitimacy granted to us on a precarious tenure by another place. So any representative strength is reflected from there. For us in effect to disrupt an election is, in my opinion, beyond the proper scope of our House.
I know that that election must take place because it is laid down in European law that it shall. But to call the effect of transforming the constituencies, reforming constituency associations, going through the selections again, and reappointing agencies, disruption is, I think, an accurate and mild statement. That, I think, would have the effect of creating chaos. As my noble friend Lord Jenkins of Hillhead reminded the House, it would reintroduce a distortion into the European Parliament as a whole. That, I think, would be a bridge too far for this House.
My objective is that the Bill should become law as quickly as possible. The question is how that should be done. The noble Lord, Lord Mackay of Ardbrecknish, put his speech on his Motion rather in the style in which it is done in another place. He might have attracted a bigger vote for a rather more economical Motion. In drafting Motions, it is a good rule that for every extra word one puts in one loses approximately three votes. According to that rule, the noble Lord has been positively reckless.
On the other hand, I remember a film which I saw when I was a small boy about the breaking of the sound barrier. The central proposition was that at the speed of sound the effect of the controls was reversed. When we vote on a Bill with Parliament Acts in the offing, something rather like that principle applies: if we keep the Bill alive, we kill it; and if we kill it we allow it to be resurrected. I may not be voting for the amendment of the noble Lord, Lord Mackay, but if it were to succeed it would not cause me profound grief.
Lord Campbell of Alloway: My Lords, before the noble Earl sits down, perhaps I may respectfully ask him an important question on the legitimacy of the amendment. Will the noble Earl accept that the amendment derives directly from the Parliament Acts?
Earl Russell: My Lords, as I understand it, the effect of the amendment is to allow the will of another place to have effect. I see no illegitimacy about that.
9.11 p.m.
Lord Beloff: My Lords, with his usual elegant series of convolutions, the noble Earl has managed to delay serious consideration of the issues before us, and not for the first time.
The argument, which has been rehearsed before—we have been reminded of that—as between closed and open lists can be taken at two levels: in relation to these precise elections for the European Parliament; and, as I have pointed out previously, as evidence of this

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Government's intention gradually to exert central party control over the activities of Labour candidates for any kind of assembly or parliament. It is part of an ongoing process which we have seen illustrated in Scotland. We could have seen it in Wales. We are seeing it, as it were in gorgeous Technicolor, in relation to London.
But that is only one aspect. The other is about the coming elections for the European Parliament. On that point I find myself less enthusiastic. I feel that it is merely delaying the day when we shall have to consider whether we want to elect anyone to that body. The noble Lord, Lord Weatherill, reminded us of the complete ignorance of the electorate about the European Parliament, and about his own MEP—no doubt a worthy person. But is it surprising when one has a body about which the things we do know are not universally to its credit? The public knows that the parliament spends vast sums of its money on building palaces for itself in Brussels, Luxembourg and Strasbourg and on parading MEPs and officials and their piles of documents in caravan from one of these centres to another. The word "nomad" used to conjure up the idea of an Arab on a camel; now it brings to mind the picture of an MEP.
In these circumstances, does it really matter? Of course I shall vote for the amendment because in principle I object to the strengthening of all party bureaucracies and at the moment in particular the bureaucracy of the Labour Party. But, however it goes, it is secondary to the question whether the European Parliament is the kind of body that we want to control the activities of the serious parts of the European institutions, in particular the Commission. I believe that that work can be done only by members of national parliaments. A great mistake was made when we resorted to any form of direct election. The sooner we get back to a direct link between these Houses of Parliament and the Commission, the sooner the latter's record of incompetence and fraud will be made manifest in ways that the European Parliament, so-called, has signally failed to do.
9.15 p.m.
Lord Shore of Stepney: My Lords, I believe that at least this measure will have earned a small footnote in the record of contemporary history, in part because of the apparent paradox that a non-elected Chamber has done its utmost to introduce genuine democracy into an elected European Parliament and at the same time the elected House has done its utmost to introduce a system that is authoritarian and hands power to parties rather than electors. That in itself deserves a footnote, but there are other features that we need to explore even at this late hour.
The question one asks—it arose at once from the observations of the noble Lord, Lord Jenkins of Hillhead—is what is the real wish of the House of Commons in this matter? Is the settled purpose, as he claimed it to be, based on the fact that it has been there five times, and now a sixth time, with large majorities in every case? I have had a look at whatever evidence is available on this matter. The only time that the House of Commons had a genuine opportunity to vote on the election system of the European Parliament was under
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the prime ministership of my noble friend Lord Callaghan of Cardiff. I am always glad to sit next to him. My noble friend put to the House of Commons on a free vote whether we should have this particular kind of proportional representation. The House voted it down on a free vote and it was not proceeded with. Therefore, we have the system that we use today. I point out that the system voted down was based on an open regional list. My noble friend, with his usual wisdom, put that before the House of Commons and it was voted down. not because it was an open list but because the House did not want proportional representation in the first place. That provides a little bit of interesting history.
What has happened since then? Has the House had an opportunity to change its mind? No. It has been a Three-line Whip throughout, yet we know that there has been no real shift of opinion in the Labour Party, certainly not among Labour Members of Parliament. No document emanating from the Labour Party can be pointed to anywhere that gives authority to a closed list system. There are plenty of documents which say that we must now have proportional representation but none says that it must be a closed list. We know that an open list is the policy of the Liberal Democrats and is supported, as I understand it, by the Conservative Party. So where is that great majority in the House of Commons in favour of a closed list system?
Then what do we find? There is the sheer embarrassment to which the noble Lord, Lord Mackay, referred, that in the midst of this really taut issue, as it now is, Labour Members on the Scottish Select Committee, on 18th November, deliberately put in words to say that they prefer the open list to a closed list and that that is a better reflection of our commitment to democracy in this country. My goodness, it is quite a story, is it not? It does not quite reflect the view of a settled will of the House of Commons as claimed by the noble Lord, Lord Jenkins.
There are two major questions which we must ask. First, why have the Government persisted in this extraordinary way by coming back five or six times to put forward this particular system? I shall not go into detail on the merits of the matter. We know very well that it is better indeed for the electors to have the right to choose or vote for the people whom they wish to have as their representatives. Of course they prefer that to giving that power to the party.
Who is the party? We know about that because we have been helped by noble Lords who have spoken against this measure. They have told us that the MEPs will be chosen by a committee of 11 wise men: six are members of the National Executive Committee of the Labour Party; two are nominees of that National Executive Committee; and three are regional officers of the party. Goodness me, that really is power, is it not, in the hands of the party leadership? That is unacceptable.
If I thought that those 11 men consisted of people of the reputation and integrity of my noble friend Lord Williams of Mostyn or of my good friend the Home Secretary, if I thought that the 11 were adjudicators of that quality, I should be tempted—I will not say that I should wholly go along with it—to go along with the

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measure. But the 11 men are not people of that reputation or quality. They are 11 party officials of mixed quality and ability who put the party first, as they are expected to do. Frankly, I do not believe that we should give them that power. We are right to resist it.
What other arguments are left? Perhaps I may refer once again to my noble friend Lord Callaghan. He put the point with more force than anyone else that there is that anomaly in the open list system in which it is possible for someone to become a member who has won fewer votes than someone who has won more votes but who does not become elected. But the reason for that is the PR system. It arises naturally under proportional representation.
During the short interval that we have had between the last occasion on which we debated this matter and now, I took the trouble to contact the Finnish Embassy. Finland operates an open list system. I put it to the Finnish Ministers, there in a wholly open way. I said to them, "What is your experience? Do you find that, when someone is elected as an MEP to the European Parliament from Finland who has won fewer votes than a member of another party who is not then elected, that is acceptable? Is there a great fuss and a row?". "Not a bit", they said. "We accept it as being perfectly natural and normal and something that must arise out of the proportional representation system which we in our country support and have no intention whatever of changing it". So much for the anomaly.
What is left? First, the closed list system is in operation in Europe. Seventy per cent. of the member states operate it in the European Parliament. While we have many things to learn from our continental neighbours, and I mean that quite genuinely, we really must not set them up as being superior in experience and wisdom in the matter of the practice of democracy; they are not so. Perhaps I may give examples of what I mean. The great problem for our democratic comrades across the Channel is that the system has resulted in a gap and gulf between the elected representatives and their own people. There is what they call a classe politique; something separate and apart from the people they are supposed to represent. It arises out of the PR system and the closed list.
Perhaps I may give one illustration. On 3rd May, just after that great meeting of the European Council during the British Presidency when the 11 Euroland members were declared, the German Bundestag had before it the proposition that it should join the single currency. The same day an opinion poll taken in Germany showed that the majority of the German people—not for the first time—were not in favour of the single currency. Yet that very day the German Bundestag voted overwhelmingly in favour of joining it. Are we surprised that the gap exists between representatives and people in continental Europe?
I shall add one final point. We may object to it; some people may laugh at it; some people may try to fiddle it; but we are committed at least to a referendum in this country before we join the single currency. Not one of the 11 member states which has become part of
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Euroland has had a referendum of its own people to give it the authority to join and to take this momentous—certainly it is that—and very dangerous decision.
So there it is. Certainly the reason the Government are pressing the legislation cannot be on merit. Why are they doing this six times? It is not on the merits of the case, so why is it? I seriously ask whether there is somewhere here a secret agenda. Is there something going on about which we have not been told? I have looked, naturally, as you would expect me to, at what was going on in continental Europe over the same period. I found three matters of genuine relevance which I believe one has almost a duty to report to the House. First, as part of the Maastricht Treaty there were changes in the clauses in the European Community treaty affecting the election of Members of the European Parliament. It changed the formula into a looser one; that it can go ahead and have a uniform system provided that members are in agreement on common principles.
The European Parliament also changed the treaty to include a clause which greatly stressed the importance and desirability of cross-frontier political parties; multi-national political parties. It then set up an institutions committee, not surprisingly, and it reported in favour of adopting a system. A long resolution was passed on 15th July 1998 before the sequence of votes took place here, the first of which was on 20th October. That was the immediate background.
If we accept the system we shall be committed to it, joining in a common European system from which we cannot withdraw. In addition, we would be committed in principle, though not under an immediate threat, to opting for a system of cross-frontier elections based upon proportionality and the cross-frontier parties: in the parties with the entitlement to additional seats—it is about additional seats amounting to 5 or 10 per cent. of the total—the cross-frontier party managers themselves can allocate who are to be the MEPs. It is not even the 11 good men of the National Executive Committee of the Labour Party, but a number of men, perhaps 11 or so good men, of the European socialist party and the European equivalent of the Conservative Party who will decide. That is not an attractive prospect and I can well understand why the Government would not wish to have this matter brought into the general background of our debate.
I say to my noble friend and to the House that I am amazed that in these long debates—we have had at least six—not once has a Minister in either House referred to the parallel developments occurring in the European Parliament and the European institutions. I say that with considerable emphasis, because in its resolution of 15th July 1998 it included the sentence:
"whereas the Government of the United Kingdom has tabled a bill in Parliament, introducing regional proportional representation for the European elections in 1999",
and it goes on to make recommendations. They knew what was going on here; we did not know what was going on there. I maintain that that is a shock to me and a disgraceful development. It should never have been allowed to happen.

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I conclude with a few words about the lessons to be learnt. One of them is that, in my view, this House behaved admirably. It did its duty, it stuck by its guns and it had every right to do so during the one year which the Parliament Act allows us to return measures we dislike to the House of Commons. It has no reason to be other than proud of that resolution and achievement. However, it is now a different ball game. The Parliament Act comes into effect; we have had our 12 months' delay, and moreover we are in the second Session. We cannot stop the measure. Therefore, I will not vote for the amendment, partly for constitutional reasons but also because it is now the easiest way of helping the Government to get the Bill through. It is only by passing that firm resolution that they will get the timetable which they need. Having said that, I had better sit down.
9.34 p.m.
Lord Inglewood: My Lords, after that pyrotechnic display from the noble Lord, Lord Shore, what I have to say will seem a trifle flat. I hope to be brief and to curtail much of what I might have said, owing to the hour.
Twice in the previous Session I spoke on the topic of open and closed lists. In between the first and the second of those occasions, as I explained on the second occasion, I had been selected as number one on the list of prospective Conservative Euro-candidates for the European parliamentary elections in the North West of England. So that there is no doubt about the matter, I should like to explain to your Lordships that I was born in Carlisle.
I want to reiterate my comments about the closed list, which I consider to be a horrid thing. I had intended to illustrate the matter, but the noble Lord, Lord Shore, has already done so in a manner, with respect to illustrations from his party, which, if he had not been more fastidious, I think he would have described as in the manner of Tammany Hall, and the aura of the closed list is the reek of the stench of the smoke-filled rooms of that building.
In the past, I have always voted on this topic in accordance with my opinion of the merits of the closed, as opposed to the open, list. In trying to understand the nature of proportional representation, it is helpful to liken it to sin. Both of them come in a number of different forms, some of which are much more attractive than others.
The Labour Party's manifesto flags up that party's intention, were it to be elected to government, to introduce a form of proportional representation for the European parliamentary elections. However, it does not specify what that form should be. As the debate has moved on, we have ceased to debate the nuances of the merits of the closed versus the open system. We are now talking about whether or not the system that is necessary to bring proportional representation on to the statute book should be the form favoured by this Chamber or the elected Chamber.
We can—it is our duty to do so—return matters to the other place in order to question them, because we are a revising and amending Chamber. However, I am
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concerned that in the guise of asking the other place to think again, we actually end up by frustrating the underlying project that the other place has in mind. I fear we are moving to the very limits of our constitutional position.
If it is the purpose of politicians fundamentally to frustrate the government of the day, I believe that that should be done on the Floor of the other place. It is the nature of the European Parliament that it sits for a fixed five-year term and, therefore, it follows that in this Government's term of office there can be but one European parliamentary election. If we continually return this matter to the other place under the guise of asking the other place to think again, we could have the effect of fundamentally frustrating that project because the Government will run out of time to implement the proposals.
I believe, like Dicey, that the general rule is that the House of Lords must, in matters of legislation, ultimately give way to the House of Commons. That is one of the best-established maxims of modern constitutional ethics.
As I have already mentioned, I was chosen to be number one on the Conservative list of prospective candidates in the North West for the European Parliament. As I explained on a previous occasion, I received conflicting advice on whether to participate in the debate and the vote. On reflection, I decided to do so. However, on this occasion, although I believe that it is constitutionally correct that the Government should get their business through, I am told by informed and expert commentators on such matters that by virtue of being number one on the list, the Government getting their business through is likely to enable me to achieve something that I want; namely, to be elected to the European Parliament, so I intend not to vote. To vote for the Government is promoting my candidature and, in the particular and peculiar circumstances of this evening, to vote for the amendment has the same effect.
Before I sit down, I hope that your Lordships will allow me to conclude with some points which I believe are very relevant and can be held by all candidates and all those involved in the elections. Proportional representation is unknown political territory on the mainland of this country. The preparations for an election held under it are not straightforward and the necessary pre-election work is complicated, time-consuming and novel. All those matters have had to go on hold during this period of uncertainty. The longer we are all kept waiting, the less effective the various political parties will be in the election which is to be held in June next year which is, after all, only six months' hence.
Traditionally, European parliamentary elections have had a low turn-out. That is not only bad when looked at from the perspective of the European parliament—some noble Lords may find that an attractive proposition—but I believe that it is also bad for the political process and democracy in general. It is particularly so in a world where there is evidence of increasing disillusionment with politics. I have no doubt at all that I speak for everybody involved in those elections when I speak to

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and through your Lordships to Parliament as a whole and say, "Please stop playing games with this matter. Please can we have a final decision so that the uncertainty can be ended?", so that all those who are actively involved in this part of the democratic process can get on with it to the best of their abilities in the wider public interest.
9.41 p.m.
Lord Monson: My Lords, I believe it is fair to say that most noble Lords who have opposed this Bill in its present form over the past months have done so as outright opponents of PR. I readily agree with those noble Lords in maintaining that the first-past-the-post is by far the best system for general elections, given that they result in the formation of a government. And they, ideally, should not have to depend on horse trading or shifting political alliances.
However, none of those elected to the European Parliament is to be granted executive powers. I believe that was a point made in so many words by my noble friend Lord Weatherill. Therefore, PR in some form may well be appropriate for European elections.
But there are at least two things wrong with the form of PR proposed by the Government. The first is multi-member constituencies as such. One of the glories of our British tradition is that MPs take pride in working hard and conscientiously for all their constituents, no matter that the political opinions of their constituents may be the precise opposite of their own. I said our "British tradition", but the same applies to Northern Ireland as my noble friend Lord Molyneaux and the noble Lord, Lord Fitt, would undoubtedly agree were they here. Unionist members are normally assiduous in attending to the day-to-day problems of their nationalist constituents, and nationalist members are equally zealous in looking after their unionist constituents.
The proponents of the multi-member constituency argue that only a Conservative can effectively look after the mundane interests of Conservative voters; only a Liberal Democrat can look after Liberal Democrats and so forth. That is surely a counsel of despair, alien to our traditions.
The second thing wrong with the method proposed is the closed list. So far what has not been pointed out is that the closed list system is much more attuned to the late 19th century than to the late 20th century, and still less to the 21st century. As I believe the noble Lord, Lord Inglewood, implied, it reeks of Tammany Hall, when bewildered, semi-literate men arriving in a strange country after an arduous ocean crossing, were told, "Forget about individuals and names. Vote the straight Democrat ticket year in and year out and the ward bosses will guarantee to wangle you a job and accommodation". Nowadays, partly thanks to radio and television, we have an informed, even streetwise electorate and accordingly most of them are not content to vote the straight party line unthinkingly. They want to be able to fine tune, so to speak, their selection by putting at the top of their list, for example, an anti-abortion Labour candidate, a Conservative who
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hates grammar schools, a Liberal Democrat Euro-sceptic—yes, such creatures do exist—or even an individual, irrespective of party, whom they happen to like and admire as an individual.
In trying to defend the closed list system, the Government argue that it is necessary in order to ensure the election of women and members of ethnic minorities—the implication being that, left to their own devices, Labour voters would be reluctant to vote for individuals in those categories. Is not that assumption insulting to Labour voters? The Government also argue that France and Germany operate closed list systems; indeed, they do. However, France and Germany are the two most élitist nations in Europe. Except when the mob are allowed to take over briefly—as happens from time to time—France is run by "les énarques", while the political class in Germany is so contemptuous of the German man-in-the-street that it refused to consult him over abolition of his beloved deutschmark (he would certainly have voted against abolition had he been given the opportunity). So France and Germany are not very happy examples.
This is one of those rare occasions when the broadsheets, the tabloids and most of the public are as one in declaring that, for today's educated electorate, the closed list system will not do. The stance taken by your Lordships' House in October and November, which was the right one, cannot suddenly become the wrong one in December. The general public would, understandably, regard such a volte-face as totally unprincipled. Accordingly, I contend that all noble Lords who oppose the closed list system should support the amendment this evening.
9.46 p.m.
Lord Selsdon: My Lords, it is always fascinating that the further one goes away from Westminster in a southerly or an easterly direction, the greater the respect and the enthusiasm for our political and parliamentary institutions. In fact, spending much of my time now in central and eastern Europe, I would go as far as to say that we enjoy very considerable respect. People there look at us with some amusement as they see us seeking to destroy the very institutions upon which democracy is based. They say to me, "Watch out for the closed list; watch out for the party".
In the Ukraine the other day, a closed list was defined to me as, effectively, "life Peers" and the open list as, effectively, "hereditary Peers". The open list of hereditary Peers was obviously far more open because you could see what was coming a long way off. The insults that we throw around about each other are wrong. Some of us on this side of the House feel that we are here by accident of birth or even conception; indeed, I was conceived on the beach at Ocho Rios in Jamaica. I happen to be a Peer because of the accident of birth and have never had the privilege of having a vote because my father died young. I feel that it is not a matter of trying to justify one type of Peer rather than the other. We are both illegitimate and, if I had my way, we should all stand for election.

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What worries me is a certain moral dishonesty in the socialist world. The noble Lord, Lord Shore, reminded us that it was in December 1977 that we had the defeat on proportional representation. However, I should like to return to 1st January 1973 when we joined the EEC. I seem to remember that that wonderful Labour Party, with which I co-operate very much on the Council of Europe, decided that the European Parliament was totally undemocratic and refused to send a delegation to it. Therefore, our own delegation, which was desperately short of funds, had to turn to a rather humble couple of people called the Treasurers of the Conservative Group for Europe. We had to go out and raise commercial money from companies, some of which, I note, give donations today to the Labour Party. But, at that time, they had to fund our delegation.
Moreover, two-and-a-half years later the people said, "We are in the European Union [or the EEC] and of course we should participate in the Parliament", but the Labour Party still refused to send anyone. Indeed, it sent people there only after a referendum—and that was two years later.
There is a certain dishonesty about that, but what worries me more today is what my East European friends are saying about the closed list and the party. I suppose we could say, as I was once told, that a communist is a socialist in a hurry. I believe that that goes back to 1926. But, in trying to change things in the way that we are now doing, we should not think just of Europe as it is today; we should think of what Europe will be in the future. We should think of the countries that will join. Where does Europe stop? Where does it end? We should think of the painful process taking place in some of those countries where political power still remains in the hands of the party; where there are still closed lists; where closed committees of 12 appoint people, but only the 13th has the vote—and nobody knows who he is or how long he will remain; where people are not disenfranchised but deselected or possibly disappointed. I do not like closed lists and I do not like the possibility, however remote, that we may see the return of the creeping paralysis of socialism.
9.50 p.m.
Lord McNally: My Lords, as we move towards our 11 o'clock Vote I realise that 25 minutes is not very long to deal with all the issues that have been raised in this debate. It is very strange, coming round this course for the sixth time; it is not long since we discussed it previously. Since then I have felt as though like I have been in an episode of "House of Cards", with all the plots, skulduggery and deals which have been going on.
It is amazing to think how well the present incumbents of the Conservative Front Bench have done out of all this. The present Leader of the Conservatives was of course Chief Whip on the previous occasion. On that occasion he replaced the parliamentary traditions of Burke and Locke by the machinations of Burke and Hare.
I said last time that the noble Lord, Lord Mackay of Ardbrecknish, was an unambitious Scot. I say to the Deputy Leader of the Conservative Benches that I now
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revise my opinion. I now see him as one of those gangsters in those Hollywood B-movies where the number two in the organisation was the real power behind the throne, who kept some innocent dupe—who was usually shot in the last reel—to carry the can for him.
We have had a merry canter round. The noble Lord, Lord Shore, as always, was magnificent. I enjoyed that speech the first time I heard it more than 30 years ago. It will go down well when he addresses it where it should be addressed—a Labour Party Conference—when the Labour Party decides how it wants to select its members for the European Parliament. It is not a speech which is particularly relevant to what is before this House tonight.
Two themes are before the House tonight. The first concerns the merits of closed and open lists. Two points have been best made. First, we should stop this parliamentary pantomime, as the noble Lord, Lord Inglewood, said, and allow these elections to proceed. Secondly, we should recognise that there are demerits in the open list system, not least that it causes competition and rivalry between party nominees rather than presenting a party case to the electorate.
The noble Lord, Lord Mackay, has not responded to the point that a general election presents short lists of one, chosen by precisely those same party machines—Conservative, Liberal Democrat and Labour—as will choose in the European elections. It really is double-talk to pretend that this is something new. These are proposals that have been passed in other legislation and that align us with many other parts of Europe. But most of all, as far as we on these Benches are concerned, they will produce by far the fairest Euro-elections that have yet been held. They will give all parties a chance to be properly represented; they will bring party representation—for Conservatives, Labour and the Liberal Democrats—to parts of the country that have been denied it by the unfair first-past-the-post system.
I do not want to delay the House. I see the serried ranks of the Conservative Benches, probably the death rattle of the ancien regime. There they are, once again about to defy the elected House. It is an abuse of power. It is a vote too far. We will not join them this evening. We will rely, we believe rightly, on the other place to have its will. The House should proceed, I hope fairly soon, to that decision.
9.55 p.m.
Lord Williams of Mostyn: My Lords, my noble friend Lord Shore of Stepney made an important speech. He accused us of being party to a conspiracy and suggested that I had never mentioned it in the past. He is right. I was on the telephone to King Herod only last weekend and he and I have agreed on a massacre of the innocents, directed from Brussels.
Quite a good deal of humbug is still washing about. Every former MP in this House was elected on a closed list of one. All Life Peers got here by the determination and nomination of a party machine, one way or the other. As it happens, if one criticises the present Government, Mr. Blair is the first Prime Minister ever to

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say that he would give up his unrestricted, over-weaning power to nominate Members of this House. None of his predecessors had the nerve and the courage to do that.
The amendment is almost not believable. It refers to,
"an approach which would end the historic right of the British people to choose the candidates they wish to be elected",
as in Northern Ireland, as in the new Scottish parliament and as in the new Welsh assembly. The noble Lord, Lord Mackay of Ardbrecknish, says, "You cannot chide me about that because the Scotland Bill and the Government of Wales Bill were both big Bills". So I assume that his policy is, "When you have a really big issue that matters domestically, don't bother to raise these alleged questions of principle. But if you have a little Bill, then spend hour after hour examining it, dissecting it, putting it back together and kicking it all around Westminster". That is bogus; and we know it is bogus; and the sooner we recognise that, the better.
No one is able to give us any lessons about open and closed lists. The noble Lord, Lord Mackay of Ardbrecknish, said on the first occasion—or was it the second, the third, the fourth or the fifth?—we discussed these matters that he was in charge of the choice of candidates for the Scottish Parliament. He was Lord Blackspot. He could stop them even standing—Lord Blackspot of Ardbrecknish, I beg the noble Lord's pardon. What happened after that with the English Conservative Party, such as it was? It would not even allow the late Nicholas Budgen, who was in fact the grit in the oyster, to stand at all, or Mr. Winston Churchill.
So let us not have any more humbug. The truth is that the principle is as I have always contended it to be. Is it legitimate to continue to assert unelected, unaccountable power against the elected Chamber? On that principle there is no dispute capable. We stand on the principle. I am sorry to say it but those who are playing this ping-pong are deeply flawed and deeply and irremediably wrong.
9.59 p.m.
Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure exactly how the noble Lord, Lord Williams of Mostyn, has advised his troops to vote on the subject of my amendment, but perhaps that will be revealed later on. Perhaps I may say to the noble Lord, as Lord Mackay of the Blackspot, that the Conservative Party in Scotland had an election over the weekend. Its party members were able to come along to a meeting and listen to all the people who put themselves forward as candidates. The party members decided in what order they should be on the list. I shall give way to the noble Lord, Lord Williams of Mostyn, if the Labour Party has done anything even vaguely resembling that.
Lord Williams of Mostyn: My Lords, we have actually. If one studies the way in which parliamentary candidates are chosen, one sees that is a good deal more democratic. Whatever disagreements there may be between the noble Lord and myself, I have never pretended to be the man who could say to a prospective
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candidate, "You may not even stand." The weekend election does not figure very highly in the annals of democratic thought.
Lord Mackay of Ardbrecknish: My Lords, the Labour Party had a selection process in Scotland, to such an extent that it actually blackballed some of its own existing Members of Parliament, so I shall not take any lessons on "the black spot" from the noble Lord.
Lord Williams of Mostyn: My Lords, does not the noble Lord recollect that everyone was allowed to be a candidate but that, in the nature of things, not all prospective candidates were chosen?
Lord Mackay of Ardbrecknish: My Lords, Mr. Dennis Canavan was not even allowed to be a candidate, but he will probably be a Member of the Scottish Parliament.
According to all the press reports, the Labour Party decided the matter on a London-dominated group. The noble Lord, Lord Shore of Stepney, explained exactly who was on that London-dominated group. The evidence stands on the Scottish list or any other list in this country, but particularly on the way in which those two lists were drawn up.
I thought that I would start with the Liberal Democrats, briefly. I was grateful to the noble Lord, Lord Jenkins of Hillhead, for coming along and indicating, as he did in his report, that he was in favour of the open list. The noble Earl, Lord Russell, wished me well. At least I think he wished me well; I was not entirely sure.
The noble Lord, Lord McNally, said that the trouble with the open list was that people in the same party competed against each other. As I understand the argument for electoral reform, the point in favour of the single transferable vote is that people are allowed to choose between the various representatives of a party. The noble Lord, Lord McNally, had better get back on the wavelength of what the Liberal Democrat Party thinks. I know that may be difficult for him. During the speech of my noble friend Lord Campbell of Croy, the Liberal Democrat Benches emptied, leaving the noble Viscount, Lord Falkland, holding the fort. As I understand it, those noble Lords were not going out for a small dram but to decide how to vote. I am not sure from the speech of the noble Lord, Lord McNally, whether those noble Lords made up their minds or whether they have still to do so.
The argument for the open list is overwhelming. The fact that only one government Back Bencher defended it still means that the score over the piece between both Houses is that many more government Back Benchers were opposed to the closed list than in favour of it. That is simply a fact, as any study of the proceedings in another place or here will confirm.

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The noble Lord, Lord Alton of Liverpool, made the point well to the noble Lord, Lord Tomlinson, that the closed list crushes democracy. The noble Lord, Lord Tomlinson, should know about that. I remind him of some of his colleagues currently in the European Parliament—Mr. Alex Smith, Mr. Hugh McMahon, Mr. Alex Falconer and Mr. Henry McGovan, who was in the last one. None of them will appear in the next European Parliament because, according to the noble Lord, Lord Shore, a group of 11 people decided that they jolly well should not.
Lord Tomlinson: My Lords, does the noble Lord agree that Mr. Alex Falconer announced that he was not even standing as a candidate?
Lord Mackay of Ardbrecknish: My Lords, of course he did. According to press reports, Mr. Falconer did so because he knew that he was going to get his throat cut, so there was no point in going through the exercise.
The closed list would be much easier to defend if the Labour Party had not shown political parties in this country how the list could be manipulated in exactly the way that my noble friend Lord Selsdon pointed out was done in eastern Europe. That is why the closed list system is in such disrepute. If the closed list were arrived at by all the members of the party voting, I would not be able to make many of these debating points. However, that is not how it is happening in at least one of our great parties. Let us imagine for a minute that it was to happen that way in all three parties. That would bring our democracy into serious disrepute.
The position is perfectly clear. I am well aware that, in common with the noble Earl, Lord Russell, there are two conflicting propositions.
I know that if I maintain my principled objection and ask my noble friends to vote in order to show that we still believe the open list is preferable to the closed list, and we win—which, I suspect, given the lack of Peers on the Government Benches, that we shall—the Government will use the battering ram of the Parliament Acts to get the measure through. If the Government feel proud about using the Parliament Acts to get such a deeply un-British and undemocratic proposition through, then let them feel proud. I seek the opinion of the House.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, the original Motion was, That the Bill be now read a second time; since when an amendment has been moved to leave out all the words after "That" and insert "this House declines to give the European Parliamentary Elections Bill a Second Reading on the grounds that it includes an undemocratic 'closed list' system providing for the selection of MEPs by party choice, an approach which would end the historic right of the British people to choose the candidates they wish to be elected, a step for which the House notes with great concern no mandate was sought or given at the last General Election". The Question is, That this amendment be agreed to.
10.5 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 167; Not-Contents, 73.

Division No. 1

CONTENTS

Aberdare, L.

Garel-Jones, L.

Addison, V.

Geddes, L.

Alton of Liverpool, L.

Gisborough, L.

Anelay of St. Johns, B.

Glentoran, L.

Annaly, L.

Greenway, L.

Archer of Weston-Super-Mare, L.

Griffiths of Fforestfach, L.

Ashbourne, L.

Haddington, E.

Astor, V.

Hamilton of Dalzell, L.

Astor of Hever, L.

Harding of Petherton, L.

Baker of Dorking, L.

Harlech, L.

Banbury of Southam, L.

Harmar-Nicholls, L.

Bell, L.

Harmsworth, L.

Beloff, L.

Harris of High Cross, L.

Belstead, L.

Harris of Peckham, L.

Berners, B.

Hemphill, L.

Biddulph, L.

Henley, L. [Teller.]

Biffen, L.

Higgins, L.

Birdwood, L.

Hogg, B.

Blackwell, L.

HolmPatrick, L.

Blatch, B.

Home, E.

Boardman, L.

Howe, E.

Brentford, V.

Howell of Guildford, L.

Bridgeman, V.

Hunt of Wirral, L.

Brougham and Vaux, L.

James of Holland Park, B.

Bumham, L. [Teller.]

Jenkin of Roding, L.

Buscombe, B.

Johnston of Rockport, L.

Butterworth, L.

Jopling, L.

Byford, B.

Killearn, L.

Cadman, L.

Kimball, L.

Caithness, E.

Kingsland, L.

Campbell of Alloway, L.

Kinnoull, E.

Campbell of Croy, L.

Kitchener, E.

Carlisle of Bucklow, L.

Knight of Collingtree, B.

Carnegy of Lour, B.

Knutsford, V.

Carnock, L.

Lauderdale, E.

Carr of Hadley, L.

Leigh, L.

Cavendish of Furness, L.

Liverpool, E.

Chesham, L.

Lucas of Chilworth, L.

Clanwilliam, E.

Luke, L.

Clark of Kempston, L.

Lyell, L.

Colwyn, L.

McColl of Dulwich, L.

Cope of Berkeley, L.

Mackay of Ardbrecknish, L

Courtown, E.

Mackay of Clashfern, L.

Cowdrey of Tonbridge, L.

Marlesford, L.

Crickhowell, L.

Massereene and Ferrard, V.

Cross, V.

Mayhew of Twysden, L.

Cullen of Ashbourne, L.

Middleton, L.

Cumberlege, B.

Miller of Hendon, B.

Dacre of Glanton, L.

Monro of Langholm, L.

Denham, L.

Monson, L.

Denton of Wakefield, B.

Moran, L.

Derwent, L.

Mountevans, L.

Dixon-Smith, L.

Mowbray and Stourton, L.

Downshire, M.

Moynihan, L.

Eden of Winton, L.

Murton of Lindisfarne, L.

Elles, B.

Napier and Ettrick, L.

Elliott of Morpeth, L.

Naseby, L.

Elton, L.

Newall, L.

Feldman, L.

Noel-Buxton, L.

Ferrers, E.

Norrie, L.

Fookes, B.

Northbrook, L.

Fraser of Carmyllie, L.

Northesk, E.

Gage, V.

Norton of Louth, L.

Gardner of Parkes, B.

Nunburnholme, L.

1339

Oxfuird, V.

Stodart of Leaston, L.

Pender, L.

Strathcarron, L.

Phillimore, L.

Strathclyde, L.

Pilkington of Oxenford, L.

Suffolk and Berkshire, E

Rawlings, B.

Tebbit, L.

Rennell, L.

Teviot, L.

Renton, L.

Thatcher, B.

Renwick, L.

Thomas of Gwydir, L.

Roberts of Conwy, L.

Tollemache, L.

Rodney, L.

Torrington, V.

Romney, E.

Trenchard, V.

Rotherwick, L.

Trumpington, B.

Seccombe, B.

Vivian, L.

Selkirk of Douglas, L.

Westbury, L.

Selsdon, L.

Wilcox, B.

Sharples, B.

Willoughby de Broke, L.

Shaw of Northstead, L.

Wise, L.

Skelmersdale, L.

Wynford, L.

Skidelsky, L.

Young, B.

NOT-CONTENTS

Ahmed, L.

Inchyra, L.

Alli, L.

Islwyn, L.

Amos, B.

Jay of Paddington, B. [Lord Privy Seal.]

Ashley of Stoke, L.

Judd, L.

Bach, L.

Kintore, E.

Bassam of Brighton, L.

Lockwood, B.

Berkeley, L.

Lofthouse of Pontefract, L.

Blackstone, B.

McIntosh of Haringey, L. [Teller.]

Bramall, L.

Merlyn-Rees, L.

Burlison, L.

Monkswell, L.

Callaghan of Cardiff, L.

Morris of Castle Morris, L.

Carmichael of Kelvingrove, L.

Nicol, B.

Carrick, E.

Norton, L.

Carter, L. [Teller.]

Pitkeathley, B.

Christopher, L.

Plant of Highfield, L.

Clarke of Hampstead, L.

Ponsonby of Shulbrede, L.

Clinton-Davis, L.

Ramsay of Cartvale, B.

Davies of Coity, L.

Randall of St. Budeaux, L.

Davies of Oldham, L.

Rea, L.

Dormand of Easington, L.

Rendell of Babergh, B.

Ely, Bp.

Richard, L.

Farrington of Ribbleton, B.

Rix, L.

Gladwyn, L

Sawyer, L.

Gould of Potternewton, B.

Sheppard of Liverpool, L.

Grenfell, L.

Strafford, E.

Hacking, L.

Symons of Vernham Dean, B.

Hanworth, V.

Taylor of Blackburn, L.

Hardy of Wath. L.

Thomas of Macclesfield, L.

Harris of Haringey, L.

Tomlinson, L.

Haskel, L.

Walpole, L.

Hilton of Eggardon, B.

Warner, L.

Hogg of Cumbernauld, L.

Weatherill, L.

Hollis of Heigham, B.

Whitty, L.

Howie of Troon, L.

Williams of Mostyn, L.

Hoyle, L.

Winston, L.

Hughes, L.

Young of Old Scone, B.

Hunt of Kings Heath, L.

Resolved in the affirmative, and amendment agreed to accordingly.
10.15 p.m.
Lord Strathclyde: My Lords, given the result of the vote, perhaps I may ask the noble Baroness the Leader of the House some questions.
The Government were defeated five times in this House in the past Session on the principle of the closed list. The House has shown again tonight, and I believe rightly, that it is unwilling to agree to the replacement of voter choice with choice by party officers. This succession of defeats is an unprecedented humiliation for the Government on a discredited policy which has been repeatedly attacked by their own Back-Benchers in another place.
The noble Baroness the Leader of the House must now make the Government's intentions clear. Even at this stage will they reconsider their policy, or do they intend to use, for only the second time in 50 years, the high-handed device of the Parliament Acts to force through a shabby and undemocratic voting system into law—a system which has no place in their manifesto and which would represent the greatest restriction on the freedom of choice of electors since the Reform Act of 1832? If they take that choice, they have the power to do so, but they should use that power with shame and no shred of pride.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I am delighted to respond to the noble Lord. Since we are reminding each other of what was said on previous occasions, perhaps I may remind him of what his predecessor, the noble Viscount, Lord Cranborne, said on the occasion of, I think, the fifth defeat on this discussion which occurred about a month ago. He said—I hope that I paraphrase him correctly but his remarks are in the Official Report—that he expected that this House would know how to behave were this issue to come before it again.
All I can say to the noble Lord tonight is that, as he knows, the Government will now send a message to the other place, and Madam Speaker, I am sure, will act upon her duty.
House adjourned at eighteen minutes past ten o'clock.