Crime and Disorder Bill [H.L.]

HL Deb 12 February 1998 vol 585 cc1265-325

3.30 p.m.

Lord Williams of Mostyn

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 22 [Meaning of "racially aggravated"]:

The Chairman of Committees

In calling Amendment No. 157 I point out to the Committee that if that amendment is agreed to, I cannot call Amendment No. 157A.

Lord Monson moved Amendment No. 157: Page 18, leave out lines 21 to 24.

The noble Lord said: I hope the Committee will forgive me if I start by speaking to Clause 22 as a whole to set the scene so to speak. The Labour manifesto promised to create, a new crime of racially motivated violence". That is what Clause 22(1)(b) does, fleshed out by Clause 23. But the various offences set out in Clause 23—common assault, actual bodily harm and grievous bodily harm—are already crimes, whoever the victim and whatever the motive. They quite rightly already attract severe punishment. Therefore when the Government speak of "new crimes" they are not making illegal what is presently legal but are simply proposing that existing offences deserve a more severe punishment if any racial or national element comes into the equation.

At Second Reading two noble Lords—one from the Conservative Front Bench and one from the Liberal Democrat Benches—expressed some unease at these proposals. However, the really pungent and telling attacks had come earlier from the press in July and October respectively last year. As luck would have it I was in the middle of photocopying the extracts in question in the Library when I noted that Question Time was finishing much earlier than expected. I have left them in the Library and I shall not be able to quote them now but I shall do so a little later this afternoon as they are worth quoting.

The Times' leading article asked why one kind of crime should be punished more severely than a similar crime. That was timely because only three days earlier—I think The Times' leading article appeared on 3rd October—it was revealed that a 13 year-old girl had committed suicide as a result of being bullied by 17 year-old youths. She was not bullied because of her race; she was of the same race as those who committed the bullying. However, she was unusually fat and wore glasses. We know, of course, that people are frequently harassed and bullied because of their clothes, their lifestyle or because they are fat, thin or disabled. Not so long ago some people in wheelchairs in Oxford were attacked by thugs who said that they did not like crippled people. People are attacked because of their accents, whether they be regional accents or so-called "class" accents. Many noble Lords will know that students at northern universities who have been to public school—there are attested cases here—have been headbutted by locals in pubs who do not like their accents. The victims have ended up with broken noses, broken cheekbones, chipped teeth and so on. However, none of these categories receives special protection although all suffer equally.

Notwithstanding the powerful and compelling press attacks to which I shall return later, the Government will obviously stick to their guns as regards offences motivated by hostility towards people of another race or nationality. That was a manifesto commitment and there is obviously no point in opposing it, although I suggest that the inclusion of offences which are partly motivated by hostility will lead to a legal minefield. Let us consider the case of Arabs and other people from the Middle East who are frequently targeted by black and white gangs alike on the supposition that they are more likely than others to have Rolex watches and large sums of money on their person and large amounts of jewellery in their safes. Part of the motivation for these attacks is obviously mercenary, but I suspect that quite a lot of racial antipathy from both black and white comes into it as well. Again that is a matter that I do not think we can change because although it is ambiguous it is in the manifesto.

I turn to Amendment No. 157 which seeks to delete Clause 22(1)(a); a proposal which was not in the Labour manifesto and is more draconian than what I have just been discussing. Indeed it is positively Orwellian in that it seeks to police people's emotions. It increases maximum sentences by up to 300 per cent. for offences which have nothing to do initially with race or nationality and where there is no racial motivation, but where, in the course of the attack, some hostility or resentment may emerge accidentally. Indeed the hostility could be merely transient. A bomb attack in Belfast, Jerusalem or Colombo could well provoke a generalised hostility towards the nationality or race of the perpetrators which might fade after two or three weeks.

Let me show how this law would work in practice if it is not amended. Let us consider road rage. Tempers are at their shortest when people are trying to drive on our overcrowded roads. A man in the south of England may buy a new car of which he is extremely proud. He polishes it every Sunday and does not let anyone else touch it. One day, about a month after buying it, he is stationary at traffic lights with his handbrake on when someone drives up behind him who is chatting to his passenger or twiddling the knobs of his radio and crashes into the rear of the car in front, smashing it up considerably and breaking the tail lights. The enraged driver of the car in front gets out of his car intending to hit the person who did it. That is no doubt naughty, but this is what happens on such occasions. He hears the man speaking with the accent of north east England and takes a swing at him saying, "That is for smashing my car, you Geordie so-and-so". He would probably be found guilty of common assault and sentenced to a maximum of six months' imprisonment. However, if the careless driver lived 30 or 40 miles further north and the aggrieved driver heard him speaking with a Scottish accent, he could well take a swing at him saying, "That is for damaging my car you Scottish so-and-so". Under the terms of the Bill he would be liable for two years' imprisonment—four times as long.

Let us also consider disputes between neighbours. As we all know, those are another cause of great tension. Let us suppose that there is a tough Londoner, of the kind depicted by Harry Enfield on television, usually with a fierce Rottweiler in tow, who lives in a street in East London. His neighbour on the left comes from the Indian subcontinent; his neighbour on the right comes from a West Midlands conurbation. The East Londoner in the middle is infuriated by his neighbours, who let their cats come into his garden and mess things up or park their cars so that he cannot get on to his drive. One day his patience snaps and he says to the neighbour on his left, "If you park your car across my drive one more time, I'll thump you, you Paki so-and-so". He then immediately goes to the neighbour on his right and says, "If you park your car across my drive one more time, I'll thump you, you Brummie so-and-so". Again, the sentence for threatening the neighbour on the left will be four times as high as that for threatening the neighbour on the right, if the Bill remains unamended.

That will not improve community relations; quite the reverse. Moreover, it contravenes Labour's traditional policy on sentencing. Throughout the 1980s and the first half at least of the 1990s, Labour both inside and outside Parliament and Labour-supporting newspapers never stopped criticising Conservatives for constantly increasing maximum sentences for all kinds of offences. They argued with some justification that long sentences were wasteful and expensive and that what counted was near certainty of detection and conviction. This kind of provision will do nothing to add to the near certainty of detection. It may actually reduce the near certainty of conviction because juries may well be less willing to convict if they suspect that there has been evidence of positive discrimination in sentencing.

The British people are prepared to treat everyone else fairly—no better, no worse than anyone else. They do not want to treat an incomer worse than anyone else, but nor do they want to treat him better. Positive discrimination, albeit with another name, is what the subsections represent. I beg to move.

3.45 p.m.

Lord Meston

Perhaps I may speak to Amendment No. 157A which is grouped with Amendment No. 157. I hope that it is convenient to refer also at this stage to Amendments Nos. 167 to 169.

These are the first amendments covering the important topic of racially aggravated offending in the Bill. It is regrettable that it was necessary to spread the relevant clauses through the Bill. Clauses 22 to 25 concern the racial aggravation of specific offences in England and Wales. Clause 26 concerns specific racially aggravated offences in Scotland. Clause 68 applies generally to sentencing for racially aggravated sentences in England and Wales and expressly refers back to Clause 22. Finally, one jumps to Clause 79 which deals with sentencing for such offences in Scotland.

The purpose of my amendments is to inquire why different language is used as between England and Wales and Scotland. Clause 79, applying to Scotland, describes an offence as aggravated if, at the time of committing the offence, or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and based on the victim's membership of, or association with members of, a racial group". Clause 22, applying to England and Wales, describes it as aggravated if, at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership of, or association with members of, a racial group". Two questions arise. Why is it necessary or desirable to have the expression "evinces malice and ill-will" in some places and the expression "demonstrates hostility" elsewhere? Apart from the argument for consistency, unless there is some good reason I suggest that the more modern and simpler English version is preferable.

Secondly, why do the words "if any" appear in Clause 79 after the word "victim" but not in Clause 22? Clause 22 governs the particular offences referred to in Clauses 23, 24 and 25, each of which will involve a specific victim. But the Clause 22 definition is applied to all other offences by virtue of Clause 68.

There are offences which are racially aggravated without having a specific or identifiable victim—for example, criminal damage or affray. Presumably most of those could be caught by the second limb of Clause 22(1) which does not depend on a specific victim. However, that still begs the question why the words "if any" are used in the Scottish clause. I am not sure whether this covers the aggravation after the offence by racial abuse towards the arresting police officer from a member of an ethnic minority.

These provisions in general are desirable, but they must be workable. At Second Reading my noble friend Lord Goodhart suggested that it might be simpler to apply Clause 68 across the board. That would enable the question of racial aggravation to be looked at simply at the sentencing stage so that the judge sentencing the offender can first decide whether there has been aggravation and, secondly, assess the degree of aggravation. But if we cannot have a simple application of a single clause to all offences because the Government feel that higher maximum sentences are called for in specific instances, there is still a strong case for simple language.

I suspect that the noble Lord, Lord Monson, goes a little too far in wanting to oversimplify things. Nevertheless, I suggest that the point he makes is in some respects a good one.

Lord Carlisle of Bucklow

This is the first time I have attempted to intervene in the debate on the Bill. I apologise that I was not present at Second Reading of the Bill.

I hope that I am not alone among the membership of this Chamber in expressing considerable concern about the clauses that we are debating. We are involved in a major extension of the criminal law, creating several new criminal offences. It seems to me that if that is so we are entitled to ask the question and have that question answered: why are the new crimes necessary? What will the new offences achieve? Are they based on logic or are they totally illogical? Finally, what is the effect in practice of what is being proposed?

I appreciate that most of those issues are matters more appropriately raised in the debate on clause stand part, in particular whether Clause 23 shall stand part of the Bill. If I may, I shall reserve the remarks I wish to make to the Committee on those matters to that stage.

However, I wish to follow up what the noble Lord, Lord Monson, said about the subsection of Clause 22. I ask myself this question. Has the Committee considered the effect of what is being proposed? An offence is to be racially aggravated if at the time of committing the offence or before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership of, or association with members of, a racial group". "Racial group" is defined as, a group of persons defined by reference to race, colour, nationality…or ethnic or national origins". I ask the Committee this question and request an answer from the Solicitor-General when he replies. How wide is that intended to go? Does the fact that you are Scottish mean that that is your nationality? Does the fact that you are Welsh mean that that is your nationality? Or does it mean that your nationality is British?

Unfortunately, the noble Lord, Lord Williams of Mostyn, is not present. I decided that he would be a very good example in relation to the comments I wish to make. If he and I go to the Scottish-English rugby match together, and afterwards, unlikely though it may seem, we fall out in the public house nearby over the result and I strike him a blow in the face, then presumably I am committing assault occasioning actual bodily harm in breaking his nose. If I say, "You b… so-and-so", and strike him in the face, I presume that I am committing the offence of causing actual bodily harm. If I call him, "You b… Welsh so-and-so", and strike him in the face, does my offence of assault occasioning actual bodily harm become immediately a racially aggravated offence of actual bodily harm? If "Welsh" is not a nationality, is it an ethnic group? Is it really to be said by the Solicitor-General that there is something different in nature between my calling him a "so-and-so" and calling him a "Scottish so-and-so"? Yes, so it is said. But if it is more serious to call him a Scottish so-and-so rather than just a so-and-so, perhaps I may take another example. If it is suggested that calling him Scottish aggravates the offence which was otherwise committed, what about religion? If I am a Protestant and I call him a "Catholic so-and-so", that apparently is not racially aggravated. If I say to someone, "You are an Irish so-and-so", that would clearly be a racially aggravated offence. If, as a Protestant, I said to an Irishman, "You filthy Catholic so-and-so", that apparently is not a racially aggravated offence. Is it logical to legislate in this way?

My noble and learned friend Lord Mackay of Drumadoon told me earlier that the Criminal Injuries Compensation Board—I declare an interest as its chairman—sits in both Scotland and England. Many of the disputes, many of the assaults that occur at a public house on a Saturday night in Scotland and upon which we have to adjudicate as to whether the person is the innocent victim of a crime of violence are not based on race, they are based on religion—Rangers and Celtic! Therefore, one asks oneself this. If nationality and ethnic grouping covers, as it must, English, Welsh or Scots, what is the difference between those descriptions and describing someone as a Protestant or a Catholic? I do not believe that the matter has been thought through.

I then ask the noble and learned Lord the Solicitor-General: how is the hostility to be proved? One would have thought that the striking of a blow against another was clear evidence of hostility. But on top of that it will be necessary to have evidence that the hostility was based on a victim's membership of a racial group.

I cannot see how that is to be achieved before, during or after other than by merely relying on the outburst of the individual at the time. I return to my point. Is it really to be said that describing someone in a fit of temper as a "Scottish so-and-so" rather than just a "so-and-so" is of its nature of such a kind as to make it into a different offence?

With great respect, although I understand and appreciate the aims and intentions of this part of the Bill, to start down the road of introducing new criminal offences for which there is no basis in logic is the wrong way to go. As I said, I shall reserve my other remarks for the debate on Clause 23 stand part, because I believe that the effects of the proposal in practice have not been considered—as to the mode of trial and the effect on the whole trial situation. We should consider very carefully whether it is sensible to accept these sorts of definition at all.

Lord Desai

I hesitate to rise to speak to the amendment; it was not my intention. I did not take part in the debate at Second Reading and, had the Chamber not been so crowded, I should not have found myself listening to the noble Lord, Lord Monson, on this particular question, although I do listen to the noble Lord on other matters.

The arguments being made against Clause 22, especially by the noble Lord, Lord Monson, are part of a general class of argument raised whenever there is any attempt at either positive discrimination or any special provision. It is argued that there is a continuity, and no divide, either along the lines of race or gender or, as happens in India, caste, and therefore that the distinction being made is superfluous or illogical. Or, it is said, if a distinction is to be made according to one dimension, there are a hundred other dimensions and why are they being neglected? We have heard both those arguments. The argument is that insulting your neighbour who is a "Brummie" is no different from insulting your neighbour who is a "Paki", and that if race is to be used as an argument, then why not include religion, height, age, weight or whatever?

I wish to argue that the idea behind this clause—and I think we know what lies behind it—is that there is a discontinuity in our society in relation to crimes committed against people of non-white colour. Let us not beat about the bush; what is it about? In south London, east London and across the country, crimes have happened that are quite horrendous, purely because of the colour of the victim. It is very often not even the person's neighbours who commit such crimes; it is perfect strangers who attack people in the street. Women taking their children to school in Southwark find themselves insulted and harassed only because they happen to be Bangladeshi.

I do not normally speak on racial issues in this House, as noble Lords know. I have no expertise in that area. However, in logic, one can say that there is no distinction and that we are all equal before the law. I would like to live in a society in which that is both nominally and factually true. I would love to live in a society where justice could be genuinely colour blind and gender blind. But we do not live in such a society. It is through clauses like this that we shall achieve our aim of living in a genuinely equal society. In the meantime, we have to take a strong stance if we are to have a multiracial society. We cannot properly pretend that there is no distinction between being a Bangladeshi woman in Southwark and being a Welshman at a rugby match. If people want to believe that, they can; and in some legal matters it may be true. But it is not true in fact—and there is a lot of evidence and experience on my side.

Lord Henley

Perhaps I may say just a word or two from these Benches. I shall return to the matter later when moving my own amendments and shall possibly want to say a word or two on clause stand part, as my noble friend Lord Carlisle made clear. We on these Benches, as will be true of every noble Lord in this Chamber, unreservedly condemn racial violence and harassment. We also welcome the fact that the Government take this issue very seriously and want to take it very seriously. The point that we have to address with these amendments—and, as I said, I shall address it in my amendments—is whether these clauses achieve what the Government are trying to achieve, whether they will help at all and whether they will advance the cause so much as one jot.

At Second Reading I quoted from both the noble and learned Lord's colleague the Attorney-General and from the Lord Chief Justice, both of whom made it quite clear that they considered they had perfectly adequate powers as it was to take such matters into account when sentencing. Since then, the noble Lord, Lord Meston, rightly referred us to Clause 68. If I understood his point—and I believe I did—the generality of Clause 68 seems to deal with virtually everything we need to do. Therefore, one questions whether Clauses 23, 24 and 25—the English clauses—are necessary. The same might be true of the Scottish clause, Clause 26 and its associated provision, Clause 79, if my memory serves me right. One questions whether they advance us one jot further than Clause 68 or the powers that the courts consider they have at the moment.

As I said, I wish to explore that further, particularly in my amendments Nos. 158 and 159 which I shall come to later. In the meantime, no doubt other Lords will wish to intervene as well, but it would be useful if the Solicitor-General, when he comes to respond to the points put by the noble Lord, Lord Monson, could explain how he sees these clauses as achieving the aim and end which we all share. It is no good merely saying that the Government take these matters seriously and wish to deal with them. He must explain how they propose to deal with them and in what way the clauses advance us.

4 p.m.

Lord Campbell of Alloway

The question is simple. Is the noble Lord, Lord Desai, right when he says that the clauses will do something constructive—those were not quite the words he used—to deal with the problem with which we are all concerned? The noble Lord thinks they will. I am wholly satisfied that they cannot do so for the reasons given not only by my noble friend Lord Carlisle but also by my noble friend Lord Meston. I found it difficult to hear what the noble Lord, Lord Monson, was saying. I am rather deaf and he was reading very fast, with his head down on his notes, and I missed his pearls of wisdom. But from what I heard, I am wholly in agreement. For my part, I do not see how one deals with the matter piecemeal, dividing on an amendment. It is a question of whether the clauses should stand part.

The Solicitor-General (Lord Falconer of Thoroton)

The debate on Amendment No. 157 has strayed into the area of the principle of the clauses as a whole. I do not wish to develop in full the arguments on why the clauses are in the Bill. Before I deal with the amendments proposed by the noble Lords, Lord Monson and Lord Meston, I should explain briefly how the structure works and answer in principle the points that have been made so eloquently, particularly by the noble Lord, Lord Carlisle of Bucklow.

First, the way the statute works for England is that Clauses 22 and 23 create a number of new criminal offences where, if there is a racially-aggravating feature, it is a new criminal offence. The offences which are created are three kinds of assault case to which racial aggravation is added, thereby creating the new criminal offence. The Government believe, in my view quite correctly, that it is not sufficient simply to say that racial aggravation is a factor which goes to sentence. It is in certain cases something which, when added to other matters, should itself create criminal liability.

We believe that that gives a much stronger message than simply the important matter of adding to the sentence if an offence is racially aggravated. We of course accept that that is an important matter in itself.

The noble Lord, Lord Carlisle, also raised a point which, as the noble Lord, Lord Desai, said in his speech, is always raised in these debates, and it was mentioned by the noble Lord, Lord Monson. It is that if you are protecting people on grounds of race, why do you not also protect them on grounds, for example, of religion, disability, sexual orientation and a huge number of other matters which one could identify as those which this Committee would wish to protect?

The answer is that one cannot protect everybody in one Bill. In this Bill we have focused on racially aggravating features. We believe that is a priority and it is important. One should not let the best be the enemy of the good. There is legislative precedent for it, as all Members of the Committee know: for example, Part III of the Public Order Act 1986. It would, in my submission, be the most ridiculous reason for not voting for these provisions to say that they do not include lots of other perfectly worthy groups who require protection.

Those are my answers in substance to the points of principle. There is one other point of principle at the heart of the amendment from the noble Lord, Lord Monson: does Clause 22(1)(a) go too far? That provision makes the offence racially aggravated where it can be proved at the time of the offence, immediately before or immediately after, that the offender demonstrated towards the victim of the offence hostility based on the victim's membership of or association with members of a racial group.

So the effect is that if, as the noble Lord, Lord Carlisle, indicated, you say, "You are a Welsh something" or "a Paki something else", proved of itself that can establish the necessary racially aggravating feature. That is the effect of the Bill. It was rightly identified by Members of the Committee. The reason it is put in is that everyone who is involved in race relations and the intervention of the courts in race relations discovers that it is notoriously difficult to prove racial motivation. It becomes an illusory matter of proof which lawyers are well able to demonstrate in court is difficult to prove. Clause 22(1)(a) is a practical and sensible attempt to try to deal with the problem that if we had only Clause 22(1)(b), many cases which would fall within the racially aggravated criminal offence definition would slip through. That is why we have done it.

Although the noble Lord, Lord Monson, put his points well, it would be wrong to delete the provision from the Bill and contrary to the great weight of the consultations that went on before it was put into the Bill. That is why it is in and why we seek to defend it. I hope that I have answered all the points made by the noble Lord, Lord Monson. I did not hear the beginning of his speech but only because there was a stampede of Peers leaving after Starred Questions and not because of any form of delivery in relation to it.

As to the points raised by the noble Lord, Lord Meston, there is a difference in the wording between the Scottish racial aggravation and the English racial aggravation. In the course of the Second Reading debate, the noble Baroness, Lady Anelay, warned me not to get involved in Scottish matters. Perhaps I may make two points in relation to that. As regards the English provision in Clause 22(1)(a), I am quite satisfied that the wording is sensible and the right way to deal with it, with one exception, the words "if any". The noble Lord, Lord Meston, has a point when he asks why the words "if any" are in the Scottish version but not the English. Perhaps I may undertake to go back and think about it. I do not wish to commit myself to changing the wording, demonstrates towards the victim of the offence", because I am satisfied that it is the right way to do it. I shall leave it to my noble and learned friend the Lord Advocate to defend the wording in the Scottish provision. I hope, in the light of the assurance I have given to consider the point in relation to "if any", and my warning to steer clear of Scotland, the noble Lord will he minded to withdraw his amendment.

Lord Renton

Before my noble friend withdraws the amendment, if that is what he intends to do, perhaps I may point out that the noble Lord based his interesting argument on the proposition that we cannot protect everyone in one Bill. I hope I have worded that correctly; I took the phrase down at the time.

However, the Offences against the Person Act 1861 protects everyone, whatever kind of person they are. There is a great mass of other legislation dealing with criminal law which does exactly the same. The Government are being selective in punishing a specific criminal motive—racism. We all dislike racism but there are many other motives we dislike too. We dislike bad temper, which is sometimes the cause of a crime, and there are many other different kinds of motives. Is it wise, as a matter of principle when legislating on criminal matters, to be so selective? If we express one thing, do we exclude another? I am not trying to apply that rule of interpretation, but as part of the argument it is something that we should bear in mind. My view is that we should ask the Government to think again.

The Lord Bishop of Bath and Wells

During the many years I tried to deal with racial violence in east London, this specific law—however it may seem to fall short of the sort of rational arguments that are being put—would have been enormously helpful in a situation where, for instance, going down to a balcony behind our home in Commercial Road I found a family being abused. With all the graffiti and hatred that was exhibited, one felt quite defenceless in the face of 20 or so people who were trying to make the family leave their home. That was based entirely upon racial feelings. I understand them, but they are totally unacceptable in our society.

There are many other cases. It is not the same to talk of an argument in a pub between a Scotsman, an Irishman and an Englishman when one is talking of a woman taking two children to school and being abused simply and absolutely because of her race.

The other point I wish to make is that there is also conflict between people of different races; it is not simply white against black. In that situation too it is important that there are legal sanctions available. Other laws may give protection, but they are so rarely capable of use. A much stronger position would he created for people working and living here and suffering this blot on our society if the law was clear.

I must say that I fear for the future. As we have seen in Europe, any rise in recession or unemployment will automatically set in train—unless there are things in place to stop it before it begins—the sort of oppression and scapegoating which was familiar in the major war of the century. I do not understand all the legal implications of the provision but as someone who has tried to work for justice for many years it is the sort of thing that we always hoped would appear.

Lord Renton

Perhaps the right reverend Prelate would be so good as to consider, in the light of what he said, the antagonism which alas has gone on for so long in Northern Ireland between Catholics and Protestants. We have laws which protect all of them. The religious motive is not something that the courts are obliged to consider. They have to consider the criminal act which comes from either side. Should we be selective about motive in the case that the right reverend Prelate mentioned?

4.15 p.m.

Lord Howie of Troon

I am in an awful dilemma in the sense that I agree with nearly everyone who has spoken, including my noble and learned friend on the Front Bench and especially my noble friend Lord Desai. What bothers me is that over the years a creeping lack of distinction has arisen between racism and nationalism. That is where I agree with the noble Lord, Lord Carlisle.

I do not object to being called a Scotsman. I might object to being punched on the nose because I am a Scotsman but that is because I was punched on the nose rather than the reason. There is a real distinction between the sort of thing referred to by my noble friend Lord Desai, which is straightforward racism—which obviously I totally condemn and he will understand me in that regard—and nationalism.

Let me say something to which I hope nobody will listen. We can carry the idea of nationalism to the extent that English football supporters—not Scottish ones—go abroad and call Frenchmen "frogs". We can understand that sort of thing and some of their ill behaviour, but we would not condemn it. However, when we come to our own island and worry about calling Welshmen "Welshmen"—which they certainly are—and even Englishmen "Englishmen" (though it is harder to believe that they would be proud of that, but there it is) it simply confuses the issue.

I am hesitant about all this. On the whole I am inclined—it is not my normal inclination—to give the Government the benefit of the doubt. That worries me a bit. However, we can possibly give the Government the benefit of the doubt. They are wrong in any proper appreciation of the difference between race and nation; there is no doubt at all about that. But if it helps the Government in their attack on racism, which I wholly support, I will support them in their defending me, a Scotsman, from having my nose broken by some irate Englishman for some reason which I fail to understand. However, I am a little wary of it.

Baroness Hilton of Eggardon

I support the right reverend Prelate in everything he said from the very different perspective of having been a police officer in the East End of London for many years. I believe there are two reasons why the amendment should not proceed. The first is that the issue of race is different from that between Scotsmen and Englishmen in that it is a question of inequality. It is a question of the bully adopting the usual tactics that bullies take in relation to the weak. We have seen dreadful examples of bullying in schools and other places. That is what happens when a majority of a specific ethnic origin in a country choose to express some of their worst feelings by bullying and displays of aggression against minority members of the community, especially those who are distinguished by skin colour which makes them an obvious target. It is an extremely important point to make that the position between the English and the Scots is a matter of equality between two nationalities, races, people of ethnic origin or whatever. But we are talking here about a situation where a powerful ethnic majority uses opportunities to bully those in minority groups.

The other point, which I think is extremely important, is that this is symbolic. It is a symbolic message to our nation as a whole that we will not tolerate racially motivated aggression, assaults or bullying. Therefore, I do not believe that the amendment should succeed.

Lord Mackay of Drumadoon

Before the noble and learned Lord replies, perhaps I may ask a question. If a Scotsman was included in a racial group in terms of Clause 22(2), under which part of the definition would he fall? Would it be "race", "nationality" or "ethnic or national origins"?

Lord Falconer of Thoroton

A case has shown that the Scots would fall under "national".

The second part of the debate arose because of the intervention of the noble Lord, Lord Renton, at which I was extremely surprised. As he knows, the criminal law repeatedly intervenes to protect particular vulnerable groups; for example, people under 16, children, and people suffering from some sort of mental disability. To say that the amendment should be supported because there are offences that apply to everyone, such as offences against the person, seems to me, with respect to the noble Lord, to be a complete misunderstanding of the purpose of the clause, which is to come to the aid of people who might be vulnerable in our society. That approach chimes in with the view on the ground of the right reverend Prelate and the view on the ground of my noble friend Lady Hilton.

So, if I may say this with the greatest respect, the principled attack by the noble Lord, Lord Renton, was wrong. Moreover, it always comes back to this question. Are we right to be doing something to stamp out racial discrimination when there may be other sorts of discrimination that are just as bad? I think that other sorts of discrimination are just as bad, but I certainly do not think that is a reason for not doing anything about racial discrimination. I ask the noble Lord, Lord Monson, to withdraw his amendment.

Lord Monson

I am grateful to everyone who has contributed to the debate. I am grateful in particular to the noble and learned Lord the Minister, who was very helpful, to the noble Lord, Lord Carlisle, and to the noble Lord, Lord Renton.

First, perhaps I may pick up the valuable points made by the noble Lord, Lord Meston. He wants to standardise the wording between the English and Scottish clauses. I agree with him but I think it should be standardised on a Scottish basis. If the words "malice and ill will" were to be substituted for "hostility", it would make the subsection much more acceptable. "Hostility" can be extremely minor and it can also be transient. I spoke earlier about the English, the Israelis and the Sinhalese who might be hostile towards the Irish, the Arabs and Tamils as a result of a bomb explosion. Hostility can be a passing thing. "Malice and ill will" are fairly strong. You have to be fairly nasty to express malice and ill will, so that would be more acceptable than hostility, which, as I say, can be very trivial. Whether there is any chance of such a standardisation, I do not know. It may be that Scottish law cannot be translated quite so easily.

The noble and learned Lord the Minister, the noble Lord, Lord Desai, the right reverend Prelate and others talked about protecting people. The question is whether the provision will do so. Will it be effective; will it be neutral; or might it be positively counterproductive, as I suggested it might? I still think it might if it arouses the wrath and resentment of the majority of the population. As I suggested, juries might be reluctant to convict if they thought the law was unfairly biased against what I suppose we still call the indigenous population.

Obviously, the Government think it will be effective. That is interesting because, as I said, it seems to go against everything Labour used to say up until about 1995. Old Labour thought that long sentences were of no use. It would appear—this is just a matter of interest to me and I am not trying to score a party political point—that new Labour now would tend to agree more with the Conservatives in their thinking that long sentences are indeed a good idea from the point of view of preventing crime. It will be interesting to study everything that has been said and then go into this matter a little more. However, for the time being at any rate, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendment 157A not moved.]

Clause 22 agreed to.

Clause 23 [Racially-aggravated assaults]:

Lord Henley moved Amendment No. 158: Page 18, line 35, after ("harm)") insert—

("(bb) an offence under section 18 of that Act (shooting or attempting to shoot or wounding with intent to cause grievous bodily harm);").

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 159, 161, 163 and 164. I am grateful for what we have heard so far from the noble and learned Lord the Minister but I have to say that the jury is out as to how well these clauses will achieve what both he and no doubt all other noble Lords wish to achieve.

These five amendments divide naturally into a pair and a trio. They are designed to tease out some of the Government's intentions and to explore what I consider to be some of the inconsistencies in Clauses 23 and 24. Amendments Nos. 158 and 159 are designed to add the most serious offence in the Offences Against the Person Act to those in the Bill. As the noble and learned Lord will be aware, in Clause 21(3)(a), (b), and (c) there are mentioned, first, Section 20 offences—malicious wounding or grievous bodily harm—secondly. Section 47 offences—actual bodily harm—and, thirdly, common assault. In the second part of Clause 23 we see the punishments for those offences. For the offences in Clause 23(1)(a) and (b), we see in Clause 23(2)(b) that, on conviction on indictment, a person may be liable to a prison term not exceeding seven years or to a fine, or to both. That is a maximum of seven years, up from five years, which would be the maximum for those offences if they were not racially aggravated. Similarly, we see that for common assault the penalty is increased to two years from—I could not get hold of a copy of Archbold yesterday afternoon as everyone else seemed to be examining it—a maximum of one year. If I am wrong, no doubt the noble and learned Lord will correct me in due course.

What I am seeking to add is the offence under Section 18 of the Offences Against the Person Act; namely, shooting or attempting to shoot or wounding with intent to cause grievous bodily harm". That is a more serious offence than that under Section 20 and one with a maximum punishment of life imprisonment. I suspect that when the noble and learned Lord comes to reply he will argue that my amendment is unnecessary, that the offence already carries a maximum of life imprisonment and that therefore one cannot go beyond that. I see the noble and learned Lord nodding his head. Therefore, I take it that he will be pursuing that line.

However, I believe that misses the point in that, first, life is only the maximum. It is not the same as in the case of murder where there is a statutory punishment of life imprisonment, and therefore it would not be advisable to add that to the Bill. But if Parliament, through the Bill, wants to argue, as I think it quite rightly does, that racially aggravated offences should be treated very seriously, and if it therefore wishes to include the lesser offences and not the more serious offence, such as offences under Section 18, it would seem to imply that the courts could not take racial aggravation into account despite what Sections 68 and 79 say later on.

If that is not the case and the courts can take racial aggravation into account as both the Attorney-General and the Lord Chief Justice have argued—I quoted them at Second Reading—would it not also be the case with the lesser offences? In other words, we are back to where I was before. These clauses are not necessary in terms of increasing the offence. As the noble and learned Lord put it, I can accept that they are necessary if one wants to create an offence, but they are not necessary in terms of increasing the maximum offences. The courts already have that power.

There is a second point which I wish to make on Amendments Nos. 158 and 159 in relation to the direction which a judge would have to give to the jury on the occasions when these particular offences were used. For an individual charged under Section 18, the prosecution would no doubt also charge the lesser offence under Section 20 or Section 47, which is actual bodily harm. That would sweep up all matters in case the jury were not prepared to convict on the more serious offence.

Let us say that the individual is charged under Section 18 and Section 47 and that there is racial aggravation, which is also applicable to the case. Therefore, the individual is charged under Section 47 and this clause with racial aggravation having come into the case. When the judge comes to direct the jury, does he have to say, "You, the jury, cannot take racial aggravation into account when dealing with Section 18, but if you decide that the case was not as serious as all that, and it was only actual bodily harm (Section 47), in that case you can take racial aggravation into account." That may be a complete misunderstanding of how these clauses are to work. I may not have quite grasped the Government's intention. But it seems to me to be something of a nonsense. No doubt others who have experience of directing juries will be able to add something to the debate. This situation is a recipe for disaster or at least for considerable confusion when the judge directs the jury. I shall be grateful if the noble Lord will address those points when he responds.

The second trio of amendments, Amendments Nos. 161, 163 and 164, are relatively simple. They add to Clause 24 further offences under the Public Order Act. The current offences covered in the Bill under the Public Order Act include, fear or provocation of violence", which is Section 4 of that Act: intentional harassment, alarm or distress", under Section 4A of the Act or "harassment, alarm or distress" under Section 5.

All that I have sought to add in the amendments are the violent offences under the Public Order Act. If one is dealing with violence there is no reason whatever why they should not be included in Clause 24 along with what one might describe as the non-violent offences under the Public Order Act. For example, I cite a race riot. No doubt the Government would wish to take that more seriously than a riot motivated by perhaps the arguments of the noble Lord, Lord Carlisle, with the noble Lord, Lord Williams, as regards what happens at a rugby match.

I hope that I have explained adequately what is behind these two groups of amendments. I shall be grateful for an explanation from the Government as to why I am wrong and why it is not necessary to make these additions to the Act. I beg to move.

4.30 p.m.

Lord Windlesham

Amendment No. 158 is the first of this group of amendments. It will add one further offence to the three listed in Clause 23(1) which were enumerated by my noble friend in moving the amendment. All concern non-fatal offences against the person and go back 167 years. They have been described by the present Home Secretary as "outmoded and unclear". He used those words in the foreword to a discussion document entitled Violence: Reforming the Offences Against the Person Act 1861, published as recently as yesterday. In chapter 2, paragraph 2, the Government say: The law on Offences Against the Person has long been criticised by judges and lawyers as archaic, confusing and unhelpful to all those involved in the criminal justice system. Some have also argued that the state of the law in this area creates unnecessary and expensive appeals arising from wrong decisions on questions of law".

I take this opportunity to ask the Minister—whichever of the two is going to reply to these amendments—whether they intend to re-enact these "archaic, confusing and unhelpful" offences which are so shortly to be abolished or if they will consider adding provision later in the Bill, which will enable the new offences to be substituted automatically and without further legislation when the Offences Against the Person Bill, which is forecast, becomes law.

Lord Williams of Mostyn

I shall speak to the amendments specified by the noble Lord, Lord Henley. I take it that the amendments indicate an acceptance of the concept of racially aggravated offences and—

Lord Henley

I believe what I said earlier in my opening remarks was that the jury is still out on these matters. I support what the Government are trying to do, but I am still not quite clear as to whether it is achieved by these clauses.

Lord Williams of Mostyn

I am grateful. I did not mean to imply anything more than a general feeling which I detected on the Opposition Front Bench that our purpose was noble even if we had not necessarily got the right vehicle. I was suggesting no more than that. My noble and learned friend the Solicitor-General has trenchantly and clearly indicated the general philosophy. It would be otiose for me to repeat his propositions. Our purpose is to provide increased sentences for racially aggravated crime directed against the person. Where one has a basic offence which already carries the maximum sentence of life imprisonment—as the noble Lord, Lord Henley, correctly presupposed would be my response—life imprisonment is already the maximum. Therefore, the aggravated offence is not required in practical terms because the sentence cannot be increased. That is why we have not included murder or manslaughter in the list of offences.

It is commonplace—it is, sadly, notorious—that some murders and manslaughters are racially motivated. But Clause 68 is there for that considered purpose. It will require the court dealing with offences not listed in the Bill to consider as an aggravating factor evidence of racial motivation or hostility. The existence of the aggravating factor will merit—I suggest, will require—an increased sentence within the sentencing scale that the judges are well familiar with.

I am obliged for the clarification which the noble Lord, Lord Henley. gave. In any of the new offences we have not dictated to the court what the minimum sentences should be and we do not believe that it is suitable in this context to do that. We believe that the Government are right in saying to the trial judge quite clearly, "You must consider all the facts of the case, including aggravating factors such as racial motivation, when passing sentence." We have put that on the face of the Bill because we believe that racial motivation and violence is vile and foul in a way that other motives are not.

As I see it, there is no difficulty for the judge to give the jury directions quite carefully and discretely in the way that they are well accustomed to doing. Quite often these days judges give typed directions on the law and juries are capable of being trusted to come to distinct conclusions on distinct offences where the necessary components are different. They have to grapple with these concepts in the context, for instance, of different intentions and different requirements when they are dealing with murder, as to whether manslaughter should be returned as an alternative, whether by way of provocation, diminished responsibility or lack of intent. Quite often I am sure I can say that many of your Lordships will share my experience that we have put these mutually inconsistent defences to juries in our professional life, asking the jury to accept one of the mutually inconsistent defences if they thought that appropriate in all the circumstances. Juries actually do that rather well.

We have not included affray, unlawful violence and riot. That was a deliberate decision. We wanted to concentrate on violence and harassment offences directed against the person. There is the particular question which the noble Lord, with his experience of Home Office matters, raised. Of course the Home Secretary is right in suggesting that the descriptions of conduct which presently constitutes criminal offences are archaic and outmoded in the nature of things since it was 1861 or thereabouts when that descriptive language was used. It is likely to be archaic and that is a part of the review which we are presently engaged upon. We want to modernise the terminology of the law as well as, in some cases, its substance but I do not anticipate any real difficulties in the appropriate translation, if I may "shorthand" the noble Lord's remarks in that way. I have to say that I am personally grateful for the fact that he has raised it because it is something which we are going to have to deal with and focus on as part of the general review of offences against the person. I am most obliged that he has brought it to your Lordships' attention.

4.45 p.m.

Viscount Colville of Culross

The noble Lord, Lord Williams. has wholly convinced me about the underlying thesis of these clauses. I sit in a place which covers an area where there are very many races, and we have cases in court which I am afraid do have these kinds of overtones and it is essential that one should be able to deal with them. However, the noble Lord, Lord Henley, raised a point which has not been answered, and it is quite an important one. I fully understand why in Clause 23 we have not got racially aggravated Section 18, if I can put it in that way, because life imprisonment is the maximum sentence and you do not need to increase the sentence. I am entirely in agreement with the Government that a five-year maximum under Section 20 is inadequate, because it is exactly the same as the five-year maximum under Section 47 and that makes no sense whatever. Therefore one does not have the flexibility in sentencing that one ought to have when faced with these various degrees of violence and assault.

The problem raised by the noble Lord. Lord Henley, has not been answered and I think it is quite difficult. Suppose, as is very often the case, one has an indictment which contains a count under Section 18 and an alternative under Section 20, which, if I may say so to the noble Lord, Lord Henley, is more likely than under Section 47. The noble Lord, Lord Williams, is perfectly right in saying that the jury are perfectly able to do the mental exercise, which they frequently do and usually get it right: they are very good at it. Of course, it is not necessary to add a second count under Section 20 because inherent in a Section 18 count by virtue of Section 6(3) of the Criminal Law Act 1967 there is automatically a Section 20 count included, and if it becomes suitable to do so one can direct a jury in any case, whether or not you add another count to the indictment, that they can convict under Section 20.

What I do not think it will be possible to do is this. If you have a Section 18 indictment which has by its nature and because it is not mentioned in the Bill no racially aggravated element, it will not be possible to direct the jury that they can as an alternative find a racially aggravated Section 20 offence to have been committed. If that is so then all one is left with is ordinary Section 20 and the maximum sentence will he five years instead of seven years, which the noble Lord wishes to have and which I should like to see implemented.

Precisely the same thing happens under the Public Order Act. This is not even a matter of the Criminal Law Act 1987 because the Public Order Act itself says that for violent disorder or affray there is an automatic alternative to the jury to convict under Section 4. The courts will be faced with exactly the same situation. They will indeed be able to convict under Section 4, but it carries a very small penalty. If the indictment had been able to have the racial aggravation, either by virtue of it being by violent disorder or an affray, then I do not think it would be possible to have an alternative under Section 4, which has the racially aggravated element in it, unless there is a racially aggravated element in Sections 2 or 3 of the violent disorder or affray in the first place.

Therefore what the Government are doing here is disabling the courts and indeed juries from convicting for a racially aggravated lesser offence, simply because they have not included racial aggravation in the major offence. Therefore, for all that the noble Lord and his supporters and advisers want to enable the courts to deal more seriously with this sort of thing, I think they are disabling them from doing so. If not, it would certainly be of great assistance to those of us who have actually to carry out this job of directing juries and indeed looking at indictments and at what can properly be in them or not in them to know exactly how the noble Lord sees this working.

Lord Williams of Mostyn

Perhaps these words will come to haunt me, but I do not myself see any particular difficulty because a prosecutor in these circumstances will select the range of offences he is going to put in the indictment, simply because many of us in the past have had to deal with possible outcomes. It seems to me there is no reason why one should not if one wished, subject to the trial judge's views, charge Section 18, racially aggravated Section 20 or plain Section 20. It is not beyond the wit or the experience of judges, in my experience, to ask them specifically to say "What have you found?" Where there is no specific finding made by the jury because the indictment does not require them to, then Section 68 is there to give the judge sentencing power. However, these are not difficulties which are not capable of being worked through in practice and everyone sensibly putting offences in the indictment thinks of various permutations and puts the alternatives in and opens the case—I entirely agree with the assistance that has been given to me—to the jury on a number of considered alternatives.

Obviously if one has any sense or experience as a prosecutor one does not have too many permutations, but one thinks carefully about what might be the sensible and reasonable outcomes and what would be the consequence in terms of sentencing, because the duty of the prosecutor is to that as well, though not to tell the judge what to do about it but simply to consider consequences. I do not see the difficulties in practice if people put their minds to what they want to be in the indictment.

Lord Henley

I am more than grateful for the assistance of the noble Viscount, Lord Colville of Culross. It is almost 20 years since I sat at his feet as a pupil. I have forgotten the law that I knew and that is why I needed his assistance on this occasion. I am glad he offered some support. It seems quite easy to me. All the Government have to do is to add Section 18 to this, and the problems will be removed. I hope that between now and another stage the noble Lord, Lord Williams, will consider very carefully whether something might possibly be added to these clauses.

I was a little disappointed with his response to my Amendments Nos. 161, 163 and 164 in that, as I understood it, he simply said that he would study these points in detail later on but that this had been considered and it had been decided not to include them. However, at no point did he make it clear why the Home Office decided not to include them. I may have missed part of his response, but at this stage I think it would be convenient if I beg leave to withdraw my amendment and possibly return to these points at a later stage. Between now and that later stage perhaps we could have some further discussion of these matters. I beg leave to withdraw Amendment No. 158.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 158A: Page 18, line 36, at end insert ("or

( ) criminal damage.").

The noble Lord said: I intend to speak briefly to Amendment No. 158A. I ask the Government whether they would consider adding criminal damage to the list of offences. This is a matter from which people suffer on occasions when racism is involved in the crime. I do not go as far as to suggest that there should be any increases in sentences. No doubt that matter can be addressed if the Government were minded to accept the principle behind the amendment. I beg to move.

Lord Carlisle of Bucklow

I speak briefly in support of what my noble friend has said. If the principle of the Bill is as set out I cannot understand the logic of leaving out criminal damage but retaining common assault. If one takes the examples given by the right reverend Prelate, many of them would be cases where criminal damage was racially motivated; that is, people's houses being daubed with racial slogans. That seems to me to be just as much racially aggravated as the threat of violence. If it is the intention of the Government to create the offence of racially-motivated common assault, it is extraordinary to distinguish between common assault on the one hand and criminal damage on the other when the degree of racial motivation is likely to be the same.

I believe I am right in saying—I shall be grateful if the noble Lord, Lord Williams of Mostyn, corrects me—that the sentence for criminal damage, if it is to a value of £2,000, is six months' imprisonment and is therefore limited to a magistrates' court. If one changes the common law so that for the first time—this will be explored when one speaks to Clause 23 stand part—one creates an indictable offence of common assault that does not at the moment exist, surely the same should apply to criminal damage.

Viscount Tenby

I should like to add my voice in support of the amendment moved by the noble Lord, Lord Henley. I would have thought that in racially motivated offences criminal damage was almost a sine qua non. Very often the kicking in of doors, the damaging of stock, the spreading of paint and all those matters are present in criminal damage cases. I would have thought that the mysterious absence of the phrase "criminal damage" in the appropriate clause is further illustrated by another amendment, which so far the Committee has not discussed, which suggests that a whole new clause should cover this point. I am sure that all noble Lords would be interested to learn from the Minister why criminal damage is not included in this clause.

Lord Goodhart

I speak in support of this amendment and take this opportunity to speak also to Amendment No. 160. The latter has not been grouped with this amendment but logically it probably should have been. Had Amendment No. 160 stood as a separate amendment I would have moved it on behalf of my noble friend Lord Dholakia who is not here today. In the absence of both my noble friend and the noble Baroness, Lady Amos, it is probably simpler to deal now with Amendment No. 160 and Amendment No. 158A.

There is a great deal of similarity between the two amendments, although Amendment No. 160 imposes a very much higher maximum sentence than Amendment No. 158A. Clause 23 of the Bill deals with offences under the Offences Against the Person Act, all of which involve some kind of physical assault. Clauses 24 and 25 deal respectively with offences under the Public Order Act and the Protection from Harassment Act. Both involve harassment or instilling fear of violence, but the commonest form of racially motivated offence is unquestionably criminal damage. One thinks of broken windows, graffiti and damage to gardens and vehicles. All of those offences are frequently motivated by racial hatred.

The Minister said that the racially aggravated offences under these clauses of the Bill were intended to be limited to those which were directed in a broad sense against the person. But criminal damage of the kind that I have suggested is clearly directed against the owner of the property that is being damaged. Criminal damage may involve harassment. It may be an offence under the Public Order Act, the Protection from Harassment Act or the Criminal Damage Act. However, that will not always be the case. It is also simpler to prosecute under the Criminal Damage Act because fewer elements have to be proved in order to obtain a conviction. The prosecution is therefore more likely to get a conviction. It seems to me, as to other noble Lords who have spoken to this amendment, that it is illogical not to include offences under the Criminal Damage Act in the list of aggravated offences.

Lord Henley

Perhaps I may rise briefly to apologise to the noble Lord, Lord Goodhart. It was I who ungrouped these two amendments. The Government suggested that they should go together with some other amendments. I believe that it was right not to group that particular amendment with those other amendments, but possibly it should have been grouped with my Amendment No. 158A.

Lord Williams of Mostyn

It may be for the convenience of the Committee if I respond to both amendments. We gave careful consideration to the question of racially motivated criminal damage. I entirely take the points which were well made by the noble Lord, Lord Carlisle, if I may say so without presumption. I believe that there are two answers to the questions that have been raised by the noble Lord, my noble friend and the noble Lord, Lord Goodhart. The first answer may commend itself to the Committee, and the second one perhaps even more so.

First, I give the reasonably good news. The maximum sentence for the basic offence under Section 1(1) of the Criminal Damage Act 1971 is already 10 years' imprisonment. For the more serious offences under Section 1(2) the sentence is life imprisonment. We believe that the sentences currently available— a good deal of our thinking has been about what is currently available—are sufficient to deal with criminal damage cases that have a racial element, bearing in mind the overarching obligation on the court under Clause 68 to treat such an element as an aggravating factor in sentencing.

There is a minor technical point which I mention simply for the sake of completeness, because it does not add to the argument. Amendment No. 158A does not make a distinction in terms of sentence between the two criminal damage offences. However, I recognise that that is a detail rather than a principled response.

The second answer is that, speaking for myself and without any great period of reflection, I believe that the issue pinpointed by the noble Lord, Lord Carlisle, requires a degree of careful thought. I do not dissent from the proposition put earlier by the right reverend Prelate that some of this behaviour, which is terroristic in nature and is intended so to be, may well not be sufficiently addressed. If it commends itself to the Committee, I shall think about the specific example and illustration identified by the noble Lord. Lord Carlisle. There may be an answer that is satisfactory. If there is, it has not presently struck my mind. I undertake to research that further, indicating my gratitude that the point has been raised in that way.

5 p.m.

Lord Henley

The noble Lord, Lord Goodhart, may wish to intervene again before I withdraw my amendment, or speak on his when it is reached, but, as I understand it, the Government feel that the current sentence of 10 years for criminal damage is adequate to deal with that problem. I accept that. Ten years is long enough to deal with the most serious forms of criminal damage. That implies that the principal purpose of the clauses is not, as the noble and learned Lord the Solicitor-General put it, to create new offences, but to increase the sentences available to the courts for two or three particular offences; those under Section 20 and Section 47 of the Offences against the Person Act, and common assault.

If one wishes to increase the sentences for those offences, could there not be non-racially motivated offences for which the court might also wish to have greater sentencing powers? We are aware that the sentences for offences against Sections 20 and 47 have been increased from five to seven years. If that were the case would it not be more appropriate to increase the maximum sentences under the Offences against the Person Act, and then, if I understood the noble Lord, Lord Meston, correctly, to rely upon the generality of Clause 68 which provides that the court should take racial motivation into account when sentencing? That is a power which we suspect they already have. Will the Minister deal with that point?

Lord Williams of Mostyn

What the Solicitor-General and I have said is consistent. We have said that we wished, as a matter of policy, to create new offences with a racial component in them, having considered the wider context of the maxima presently available. Having gone through the offences in that way, we came to the conclusion that the new offences as specified were appropriate. We looked at the maxima available, thought of the practical consequences, and decided that the proper remedy was to introduce Clause 68, which we have done. I see no inconsistency there.

Lord Henley

With respect, if that were the case surely one would wish to create new offences for the other offences we have discussed—criminal damage or Section 18 as in my earlier amendment.

Lord Williams of Mostyn

No, because as I have indicated, the maximum sentence for criminal damage under Section 1(1)—the basic offence—is already 10 years. Section 1(2) already has a maximum of life imprisonment. A case has not been properly made out for increasing those two maxima. That is why we have been selective and, I believe, right.

Lord Henley

This is the last time that I shall return to the point. If it is merely a matter of increasing sentences, it is not necessary to create the new offences. That is the point that I am making. It takes us back to the general purposes of all these clauses. It is no doubt a point that my noble friend Lord Carlisle might wish to explore on clause stand part. He might wish to discuss whether they are necessary or whether a simple increase in the maxima for those offences might have been possible. The courts could then have taken racial aggravation into account under Clause 68. I shall not invite the Minister to respond to that. I shall look carefully at what he has said. He will no doubt look at the rather more confused words that have come from this side. We can return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 159 not moved.]

On Question, Whether Clause 23 shall stand part of the Bill?

Lord Carlisle of Bucklow

Perhaps I may return to the questions I asked at the beginning of my intervention in relation to amendments to Clause 22. This clause creates three new criminal offences with three new maximum penalties. Before extending the criminal law in that way, it is incumbent upon this place to ask itself: is it necessary to create those new criminal offences? Will they achieve what they are intended to achieve? Are they logical? I was tempted earlier to suggest some degree of illogicality in the wording of Clause 22(1)(a), and the illogicality of dealing with criminal damage and common assault in two different ways. Finally, what will their effect be in practice if the clauses come in?

I share totally the words, and adopt them, of the Minister when he described racial motivation of crime as vile and filthy. One has of course in one's professional career been involved in cases where there is a clear racial motivation. Any such case is always extremely disturbing. I share the view that racial motivation aggravates the seriousness, in many cases, of the offence committed. I question whether it is necessary to create these new offences to achieve that end.

Perhaps I may remind the Committee what was said on Second Reading by my noble friend Lord Henley who quoted the late Lord Chief Justice Lord Taylor. In the case of Regina v. Ribbans and Others, the Lord Chief Justice said: It cannot be too strongly emphasised by this court that where there is a racial element in an offence of violence, that is a gravely aggravating feature…it is perfectly possible for the court to deal with any offence of violence which has a proven racial element in it, in a way which makes clear that that aspect invests the offence with added gravity and therefore must be regarded as an aggravating feature".

That is a leading guideline case of the Court of Appeal. It indicates the way the courts not only should but do approach cases which involve racial motivation. One knows that in practice the sentences imposed, and rightly imposed, are greater than they would be were there no such racial motivation. Were there to be any doubt in anyone's mind as to the adequacy of the Court of Appeal guidelines, as has been pointed out, the Bill, in itself, puts that into statutory form in Clause 68 which provides, in terms: If the offence was racially aggravated, the court shall treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offence) and shall state in open court that the offence was so aggravated".

If we are to send a clear message from this place that racial motivation is an aggravating feature of a crime of any kind, why is it necessary, in this case, to create those three particular offences?

I hope that the noble Lord, Lord Williams. will forgive me if I say that, having failed to be present on Second Reading, I turned with anticipation to his speech. I am aware of his great reputation for brevity and clarity, but I thought that introducing the whole of this clause in 18 lines might have been overdoing it a little.

We have this afternoon heard from the noble Lord and the Solicitor-General explanations as to these clauses. It seems to me that the explanations that they have given are contradictory. The noble Lord, Lord Williams, says that they have had to create these offences because the maximum penalties imposed for them at the moment have not been adequate to cover racial motivation also, whereas, if we take wounding with intent, robbery, arson or any other offence, since the maximum is life imprisonment there is no way of increasing the maximum to show racial motivation. I take it that what the noble Lord is really saying, because it seems that it is the only thing that the clause does, is that it increases the sentence for three particular offences. I wholly share the views of the noble Viscount, Lord Colville, that the sentence in Section 20 of the Offences Against the Person Act needs to be increased. As regards the Section 47 offence of assault occasioning actual bodily harm and the offence of common assault—I question whether the Government have made out, or attempted to make out, any case for the need to increase the maximum penalties.

However, the noble Lord, Lord Williams, says that that is why the Government have identified those offences. The noble and learned Lord, Lord Falconer, says that that is not so. In answer to an earlier debate, he said that it was not sufficient to rely on Section 68 because racial motivation not only related to the sentence but it aggravated the criminal nature of the act. or words to that effect.

Lord Falconer of Thoroton

I said that it is necessary to create a new criminal offence for two new reasons. First, it sends a clear message that it is a criminal offence. Secondly, without creating a new criminal offence one cannot increase the sentence because that is the only reason for increasing the sentence.

Lord Carlisle of Bucklow

I will return to that matter in a moment. The noble and learned Lord is saying that the element of racial motivation makes the offence of a different nature which requires to be treated as a more serious offence. If that is the argument, surely the same argument must apply to robbery and to wounding with intent, although one may not have to change the maximum sentences. If one wishes to indicate by the conviction the gravity of the offence by having a special offence why not have an offence of causing serious bodily harm with intent by racial aggravation or robbery by racial aggravation? If it is to mark the nature of the offence by a particular offence the logic is to apply to all types of offences not merely those limited by the Bill.

Perhaps I may deal with the issue of common assault. While I share everything that has been said about racial aggravation, what is the case for for the first time making common assault an indictable offence with a two year maximum sentence? Are we sure that that is necessary? I stand open to be corrected, and by the look on the face of the Solicitor-General I may have created a legal faux pas.

However, I believe that I am right in saying that the present offence of common assault is triable only summarily and carries a maximum sentence of six months. It can be tried only on indictment if it is added as a separate count with other offences which are triable on indictment. Even in that case, it carries a maximum of six months' imprisonment.

I am not talking about assault occasioning actual bodily harm, but about a common assault, which is normally either a threat or a push even if motivated by dislike of nationality. As I pointed out in an earlier speech, even if in this case accepted by motivation of race—and I accept what was said by the noble Lord, Lord Desai—are we as a Chamber sure that we should increase from six months to two years the maximum penalty for an assault which does not cause to the individual assaulted actual bodily harm and which invariably involves either a threat or a push of some nature?

Secondly, are we wise to make the offence triable on indictment? Again, I confess my—I shall not say ignorance—lack of recent experience as to the present rules with regard to election for trial. However. I believe that I am right in saying that if we have a racially aggravated common assault with a maximum sentence of two years the individual defendant will be entitled to claim trial by jury. The Solicitor-General nods his head. The prosecution will be able to ask for trial by jury. Have the Government given any thought to the number of cases of racially aggravated common assault which are likely to come before the courts'? Have they given thought to the number of cases in which defendants faced with the new charge and the possibility of two years' imprisonment may choose trial on indictment? What will be the effect on the already long delays in courts such as those presided over day after day by the noble Viscount, Lord Colville?

As I said, it is illogical to deal with criminal damage and mean common assault in two different ways. However, if one is again going to raise the sentence for the minor offence of criminal damage so as to make it triable on indictment what effect will that have on the number of cases going to trial? I question whether serious thought has been given to the necessity to increase the six months' sentence for common assault to two years, even if the common assault has racial, ethnic or nationalistic motives.

At an earlier stage, the Solicitor-General accepted that to call someone "a Scottish so and so" was a nationalistic remark and could amount to a racially aggravated assault. It is not being far-fetched to say that many common assaults which find their way to the courts deal with neighbours' disputes over boundaries and so forth. They end with one person pushing the other, one person shouting abuse at the other, or one person threatening the other with his fists. Is it to be said that if afterwards the neighbour says to the police, "I am just fed up with my Scottish so and so neighbour", or, "I am fed up with a Paki neighbour" he has turned it into a racially aggravated common assault? I submit that one can be quite sure that if a defendant in a common assault neighbourhood situation, where tempers run high and everyone believes that principle is on his side, finds himself with the opportunity to go to trial before a jury he will likely take it. Many cases which were never intended to go to the Crown Court will end up there for that reason. I question whether the proposal has been thought out from that point of view.

I repeat that, like my noble friend Lord Renton, although I believe that one needs laws which cover everyone equally, in which the courts can distinguish the aggravating features—and I accept that racial motivation is an extremely serious one—that is achieved in this Bill without Clause 23. The whole of what is achieved in Clause 23 could be achieved by increasing the maximum sentence for Section 20 Offences Against the Person Act from five to seven years. Although I doubt its necessity, the same could be done for Section 47. However, for the reasons I suggested, I believe that it would be unwise to increase the sentence for common assault. I believe that the message which needs to be sent is the aggravating nature of racial motivation as will be taken by the courts in sentencing rather than the creation of a whole new criminal offence.

Lord Monson

In introducing Amendment No. 157, I made mention of powerful leading articles in two distinguished broadsheets and promised to return to them at a later stage. As they are extremely germane to this clause, preceding clauses and some of the subsequent clauses, I should be grateful for the Committee's permission to quote briefly from each of them.

The first is an article from the Daily Telegraph of 25th July, 1997, headed "Don't colour justice". It starts: Is it any worse to mug someone because they are Asian, rather than simply for the sake of stealing their watch? Are not both crimes equally vile? Apparently not, in the view of the Home Secretary". Several lines later it sets out what it believes to be the moral objections to Mr. Straw's proposals because, of course, they were only proposals at that stage. The article states: The creation of a special category of racial violence will inevitably signal to victims of 'unbiased' crime that their suffering is somehow less horrific and therefore less worthy of punishment than that of victims of 'hate crimes'. All assaults are, in a sense, hate crimes. Justice is supposed to be blind. Introducing racial considerations into court would make a mockery of the concept of equality before the law".

The article in The Times headed "Blind Justice" appeared on 3rd October, 1997. It made reference to the O.J. Simpson case which showed, it said, how dangerous and distorting it can be when questions of racial motivation dominate a trial. After several paragraphs, it concluded by saying: The figure of justice is blindfold for a reason. Using the criminal justice system to make symbolic genuflections to political causes, however noble, only undermines the effective operation of the rule of law and fetters proper judicial discretion. Punishment should not depend on creating a statutory hierarchy of wickedness which elevates racial prejudice over any of the other ugly impulses towards criminality with which society must deal".

I guess that most, if not all, Members of the Committee on the Government Benches would disagree strongly with both those articles, as may Members of the Committee on other Benches and if so, no doubt they will wish to say so. The Conservative Party at the time did not seem to disagree because there were certainly no letters to those newspapers from senior Conservative figures arguing strongly against what they said. Perhaps they have changed their minds; I do not know. It might be interesting to hear their response.

Lord Meston

I wish to raise two matters. One is technical and one is rather more important. Why is it that Clause 23 contains no provision equivalent to that of Clause 24(6) and Clause 25(5) which allows for alternative verdicts? In those cases, where the aggravated offence is not established to the satisfaction of the jury, it can bring in a conviction of the basic offence.

Of course, as we have heard, Section 6(3) of the Criminal Law Act 1967 already allows for alternative verdicts. But if that is so I wonder why it was necessary to make express provision in Clauses 24 and 25 but not in Clause 23. I cannot help feeling that there is a simple reason but I am afraid that it has escaped me.

More important, there is a concern which I know several people have about the willingness of prosecutors to accept a plea of guilty to the basic offence when the racially aggravated offence is charged, that being the offence under Clauses 23, 24 or 25 as it presently stands. If that happens, it may limit the sentencer and prevent the sentencing judge or magistrate from saying in open court, as he would be required to do by Clause 68 and by existing case law guidance, that the offence was aggravated by racial considerations if the sentencer regards that to be the case, despite the acceptance of the plea to the basic offence only.

Lord Falconer of Thoroton

I deal first with the points made by the noble Lord, Lord Monson. He quoted from the leading articles of two important newspapers. As is obvious, the Government and noble Lords on this side of the Committee entirely disagree with that approach. I believe—and the Government believe—that an offence with a racial motivation is worse than one without a racial motivation. We are not alone in that view. That is a view which the judiciary has taken in sentencing for a very considerable time. There was a quotation from Lord Taylor of Gosforth, a previous Lord Chief Justice, to that effect. But it goes back a long way. Its start is perceived to be Mr. Justice Salmon, as he then was, in relation to the Notting Hill race riots in 1958. I believe that approach was right and that we are right to reinforce it in this Bill. Therefore, despite the eloquence of the two leading articles, I disagree with them. It is obvious from the terms of the Bill that the Government disagree with them also and I believe that they are right in that respect.

I turn to the remarks made by the noble Lord, Lord Carlisle of Bucklow. In effect, he makes three points. First, he asks why, if the only purpose of the Clause 23 offences is to provide a broader option in sentencing, we do not merely increase the sentence rather than create a new offence. Secondly, he asks whether the increase from six months for two years for common assault is too long. Thirdly, he asks whether we are taking a sledgehammer to crack a nut. The noble Lord suggests that in situations in which he is calling the noble Lord, Lord Williams of Mostyn, a Welsh so-and-so, we do not want the criminal law, much as many of us would, to intervene.

I deal with each of those three arguments. As regards why we do not merely increase the sentence, as the noble Lord, Lord Carlisle of Bucklow, will know, if we simply increase the sentence across the board and say, for example, that the sentence for a Section 47 offence for all purposes is 10 years rather than seven years—I may have the figures wrong—that has an effect across the board on sentencing. That becomes the maximum. The courts then determine where they put all offences, whether or not racially motivated, on that scale. That would be moving all the goalposts for every single offence to the top when the purpose of these clauses is to increase them because of racial motivation. In my view and in the view of the Government, the logical and honest way to do that is to provide that where the offence is racially aggravated, and that becomes an element of the offence, then and only then is the increased sentence available.

That is logical, fair and right. I should say also, perhaps over-defensively, that that is what I have been saying and what my noble friend Lord Williams of Mostyn has been saying in defence of the Bill. That is the reason.

Lord Carlisle of Bucklow

If that is so, why does that principle not carry through to Section 18 and other offences? It is surely not being assumed that in all racially motivated cases the maximum sentence is going to be passed but that it should be made clear that it is of itself a more serious offence which could bring a higher punishment in the normal scheme of things If that is so, surely, when dealing with grievous bodily harm with intent, there is an argument for saying that that should have an additional aggravated offence which, although the maximum may still be the same, means in practice, within that maximum, that the accused, rather than receiving a sentence of five years, is likely to receive a sentence of seven years.

Lord Falconer of Thoroton

With respect, no. If the conclusion reached by the Government, exercising their judgment—and, of course that judgment can be criticised—is that the existing maximum sentence for an existing crime is sufficiently high even to encompass a racially aggravated crime, then there is no basis either for increasing that maximum or for creating a new crime. On that basis, it is believed that the judge is able to put the racially aggravated crime within a scale where the maximum does not need to be increased.

Therefore, logically we would not need to increase the sentence. The obvious example is life imprisonment. Some of these crimes carry a life sentence, so we would not want to create a new criminal offence because the judge has plainly got the capacity within the existing sentencing range to accommodate racial aggravation. What underlies the creation of a new offence is that, in circumstances of racial aggravation, judges do not have the capacity to do so. We believe that lifting the whole sentencing band upwards would be wrong simply because we are trying to protect those who are attacked by reason of racial motives. The only way that you can do it sensibly is by creating a new criminal offence. Moreover, for the reasons outlined by the right reverend Prelate, I believe that that also gives the right message. That is why we have done it in that way.

Secondly, there is the question of whether the sentence is too long—a point made by the noble Lord, Lord Carlisle—when one increases the sentence for common assault from six months to two years. That is a matter of judgment. I fully understand what the noble Lord said regarding common assault in that it may involve quite moderate consequences—for example, there is no actual bodily harm involved. Nevertheless, we would regard a common assault which was racially aggravated as being potentially serious. We therefore think it appropriate that we give the sentencers the capacity to go up as high as two years. They do not have to use it in every case, but the range is available. It seems to me to be a matter of judgment as to whether or not one increases it to nine months, 12 months, 18 months or two years. Indeed, two years is the point to which we think it should be increased.

I turn now to the noble Lord's final point; namely, whether one is opening the door to a very serious charge being brought for something which is comparatively trivial. In our view, when considering whether or not to prosecute under this clause, which has, as one of its elements, Clause 22(1)(a)—which is racial abuse at or about the time of the offence—the CPS must carry out two tests. The first is the evidential burden which has to be satisfied, although there is more than a 50 per cent. chance that it would be in court; and, secondly, there is the question of whether it is in the public interest to prosecute. In the kind of examples that Members of the Committee have put forward, it would plainly not be in the public interest to prosecute. Indeed, that would apply if, for example, the noble Lord, Lord Carlisle, called my noble friend Lord Williams of Mostyn a Welsh so-and-so. However, I believe that that would be obvious to the CPS. In reality, I do not believe that to be a real concern. Therefore, for the reasons given, I would, with respect, reject the arguments put forward by the noble Lord, Lord Carlisle, opposing the Question that Clause 23 stand part of the Bill.

I move on to the substantive point raised by the noble Lord, Lord Meston, as to why one could not return a verdict of common assault in such circumstances. I see that the noble Lord is shaking his head, so perhaps I misunderstood him. Nevertheless, in answer to what I believe was his point, I should say that one can return a lesser verdict in paragraphs (a) and (b) of the clause but one cannot do so as regards paragraph (c). I am told that, for various technical reasons, one would always have to include common assault in the indictment.

5.30 p.m.

Lord Meston

With respect, that is not quite the point. As I understand it, common assault is no longer available as an alternative in normal circumstances when one has a Section 20 count in the indictment. What I am particularly interested in and want to know about—indeed, it was the point of my question—is why there is no actual provision in Clause 23 of the Bill which provides expressly for alternative verdicts, whereas there is such a provision in both Clauses 24 and 25. I simply do not understand. I should add that I am not confining my question to common assault, which I believe to be a special case.

Lord Ackner

I do not think the following point has yet been made, but that may be because it is a bad one. Nevertheless, it occurs to me that there is a big difference between making a new offence and relying upon a feature of the offence as merely aggravation. If you make it a new offence, you are putting into that offence a new ingredient; namely, the racial side of the offence. By putting that ingredient in, you must put before the jury all the facts and circumstances that justify the existence of the ingredient upon which you rely.

If it is merely aggravation, that may well come out as a small side issue. It may perhaps be developed after a conviction but, at that stage, there could be a contest as to the extent of the racial motivation which the judge may then have to deal with himself by hearing additional evidence, the jury having finished by then its task. Therefore, by creating the new offence, you emphasise the racial aspect of it by requiring that particular ingredient to be properly established.

By relying upon the racial motivation purely as an aggravating aspect, it becomes merely part of the background and not part of the offence itself. Moreover, as part of the background, it may hardly emerge at all during the trial of the substantive offence. When it does emerge relative to sentencing, there may be the complication of an issue as to the seriousness arising therefrom. By making it a separate offence, it would be the members of the jury who would make all the relevant findings; by keeping it merely as aggravation, you are mixing up the functions of the judge and the jury. I assume that the Government take the view that, in the particular circumstances, that is not the desirable way of dealing with the matter.

Lord Desai

As I am not a lawyer, I hesitate to make my point. However, I feel that there is a problem of logic here, especially in the light of what the noble and learned Lord, Lord Ackner, said and the reply which my noble and learned friend gave to the noble Lord, Lord Carlisle. If you want to take care of racial violence or racism and you want to create a new class of offences, it seems to me that you should create such offences for the purpose of giving notice to society that you treat such matters most seriously.

To create some offences in order to increase punishment and not to create others because punishment already exists seems to me to be a confusion of motives. Even if it was, so to speak, a matter of duplication, and even if it was true that under certain sections you already have life imprisonment and you cannot go further, I still think that creating such offences of racial motivation would send out a very good signal that such matters are taken more seriously. Although the maximum punishment may be the same, society would take it much more seriously. I would be persuaded by that argument. I am sure that there are perfectly good reasons why the Government have decided not to do so. I certainly would feel happier if, say, on demonstrative grounds rather than instrumental grounds a point was made across the board that, wherever racial motivation was involved, society would take such matters more seriously than would otherwise be the case.

Lord Howie of Troon

Again, I agree with the noble Lord, Lord Carlisle. Although I entirely support the Government's desire to oppose racialism and to deal with it, I believe that they are weakening their case by confusing racialism with nationalism. To be motivated against a coloured man or a coloured woman because of his or her skin or racial origin is quite different from being irritated by a Scotsman or even an Englishman—although I find that difficult to believe. These two things are different in degree.

My noble and learned friend on the Front Bench has already made a distinction as regards the case mentioned by the noble Lord, Lord Monson, when he distinguished between a mere mugging and a racial attack. Of course there is a distinction of degree there in the same way that there is a distinction between a fracas concerning a quite insignificant national distinction and true racial antagonism. In so far as the Bill appears to make these the same thing and make them equal in opprobrium, the Government really weaken their attack on what I would call true racism as against faux racism. The Government should think about this matter rather more carefully and pay careful attention to the comments of the noble Lord, Lord Carlisle.

Lord McNally

I think there is enough legal and learned opinion to make someone like me speak with trepidation. However, the remarks of the noble Lord, Lord Monson, have provoked me to clarify one matter, as did the remarks of the noble and learned Lord the Solicitor-General. There are politics involved in this matter as well as law. It is a matter of political judgment whether we need laws which—as the noble Lord, Lord Desai, said—make a statement on behalf of society as a whole about how we view certain kinds of behaviour.

Throughout my political life I have heard people tell me that they are colour-blind or blindfold, but somehow when they are colour-blind and when they are blindfold they seem to make the most racial judgments. I believe that the Government are right to try to approach this matter realising that there are people who set out not to mug or to damage property but to cause damage to our fellow citizens simply because of the colour of their skin or their racial origin. I believe that the Government are right to try to show society's disapproval of that. I am sure they will listen to some of the technical arguments made by learned Lords, but I assure the noble and learned Lord the Solicitor-General and his colleagues that they will have the support of these Benches in what they are trying to do.

Lord Henley

If, as the noble Lord, Lord McNally, says, politics are to come into it, does he not agree that that is quite adequately dealt with by Clause 68 which tells the courts that they can take these matters into account? That is all that we need bother about in terms of the political aspect. What we still want to know is whether these clauses will achieve what they seek to do. I am grateful to the noble Lord, Lord Desai, for pointing out as a non-lawyer that he sees the inconsistencies in the Government's approach. On the one hand they talk about creating new offences but then they refuse to add other offences on the basis that all they want to do is to increase the sentence available for a limited number of cases. They do not want to increase the sentence available for other offences even though racial aggravation may be a motive.

5.45 p.m.

Lord Falconer of Thoroton

Just as the debate appears to be about to subside it is revived again. As regards the point of the noble Lord, Lord Henley, it is patent that Section 68 would not be sufficient because it is acknowledged on all sides of the Committee that in relation to certain crimes the sentences are not high enough. They must therefore be increased.

Lord Henley

I am grateful to the noble and learned Lord for giving way. As I made quite clear earlier, it would be perfectly straightforward for the Government to increase generally, for Section 20 and Section 47, the sentences available to the courts. The courts could then take racial aggravation into account under Clause 68, should they so wish, and they would be able to take into account all other such matters such as whether the offences were motivated by homophobic behaviour and so on. Earlier the noble and learned Lord said that the Government wanted particularly to deal with racial aggravation but there were many other forms of discrimination they would like to address in due course although now was not the time to do it. By taking my simpler approach they could cover the whole lot in one fell swoop and leave the rest to Clause 68, which would allow for what the noble Lord, Lord McNally, describes as the political motive; that is, sending out the right message from Parliament as a whole.

Lord Falconer of Thoroton

With respect to the noble Lord, I had this debate 15 minutes ago with the noble Lord, Lord Carlisle of Bucklow. The point is that if you simply increase the sentences for all of the crimes that we are concerned with on an across-the-board basis, you would drag up the sentences for everyone convicted of those crimes, when we have explicitly said that our intention is to provide a higher limit in cases of racial motivation.

Lord Henley

But that again would apply only to two or three offences and not to the other offences.

Lord Falconer of Thoroton

That is because we believe, as I have explained already—I apologise for going over this again—that we already have a high enough sentence to encompass racial motivation in the existing sentences. I give the noble Lord, Lord Henley, an example. There are certain offences for which the penalty is life. We believe that that is a high enough maximum to deal with racial motivation. We believe that one neither could nor should increase the sentence. That being the case we think it pointless and silly to introduce a new element in the crime as a means of increasing the sentence for that particular crime.

Lord Ackner

I do not think that the noble and learned Lord the Solicitor-General has dealt with the illogicality or the inconsistency raised by the noble Lord, Lord Henley. You are providing in a new offence a new ingredient. I can see, and I have pointed out, the advantage of the new ingredient; namely, that you can put all the facts before the jury. But why do you not make the same situation apply—the need for the new ingredient—in the criminal damage case and in the Section 18 case? That is the point that the noble Lord, Lord Henley, is making. If it is desirable to have a new offence because of a new ingredient, you must have that irrespective of the fact that you may think the maximum is sufficient, because it alters the presentation of the case and it alters who makes the decision, the judge or the jury.

Lord Falconer of Thoroton

The point the noble and learned Lord, Lord Ackner, makes is correct if we accept his logic as the basis for the introduction of these three criminal offences. But the basis of the logic for the introduction of these three criminal offences is—as has been explained—that we introduce them only where we think the penalty is insufficient. That being the logic, there is a perfect symmetry in why we have chosen these three particular offences. That is where we end up.

Lord Lowry

With respect, I shall not—certainly at this stage of the discussion—continue the accusations of government inconsistency. However, I think that one inconsistency is looming. If one takes the point of my noble and learned friend Lord Ackner in conjunction with the point already made by several noble Lords, including the noble Lord, Lord Carlisle, we shall have a situation—however sensible the Government have been about it—where in some cases tried on indictment the course of the trial will be different. The method of deciding an important issue will be different because in one group of cases the jury will decide that issue of racist conduct accompanying the main crime and in the other group of cases the trial judge will decide that. Very often in this country, by what is called the Newton trial, in the jurisdiction where I practised we left it, in a kind of old boy message, to the judge to decide what had happened. But whichever one does, one will have a different form of trial for two groups of offences. I think that that is correct.

Lord Falconer of Thoroton

The noble and learned Lord, Lord Lowry, is correct. But in relation to the way our justice system works, in certain matters the jury decides precisely what the defendant has done; and in other cases even where there has been a plea of not guilty there can still be a subsequent Newton hearing to determine the extent of criminality. I do not believe that the fact that certain elements of the crime will be determined by the jury, and certain elements of facts relating to the seriousness of the crime will be determined by the judge, is an inconsistency that eats at the foundation of the way our law operates.

It is a reflection of the fact that from time to time we have to deal with the matter in a pragmatic and practical way. For the Government to decide what should or should not be in the Bill, subject to the view of both Houses, is a sensible and pragmatic way to deal with the problem. One wants to increase the sentences in these three cases, but one does not want to have the drag up effect on everyone else by increasing the maximum.

I believe that the response I have given to the noble and learned Lord, Lord Lowry, answers the point that the noble and learned Lord, Lord Ackner made; namely, that one would have some points decided by the jury and some by the judge. I appreciate that the point involves a different presentation and emphasis in the course of the hearing of a case. But I do not believe that professional judges are unable to deal with that when sentencing.

Lord Ackner

I do not doubt their ability. We have merely been pointing out the inconsistency. If you are going to be inconsistent, yet say you are seeking to deal with racial motivation in a special way, then you are dealing with it in a special way only in regard to certain parts of racial discrimination and not others. You are not meeting the inconsistency attack.

Lord Falconer of Thoroton

I have explained the answer. Your word is "inconsistency". I would say that one is dealing with the racial element in crimes in a different way with different crimes. I believe that that involves no inconsistency.

That deals with the points made from the Benches to my right. The lawyers can now move off stage! I come to the main point made by the noble Lord, Lord Meston, about alternative verdicts. Again, I am sure that I have missed the point. However, we know that in relation to a Clause 23(1)(a) offence Section 20 would be the alternative verdict. On a Clause 23(1)(b) offence Section 47 would be the alternative verdict, and common assault is the alternative to Clause 23(1)(c).

The alternatives under Sections 20 and 47 are already alternative verdicts because of Section 6(3) of the Criminal Justice Act 1967. Common assault is an alternative verdict because common assault is always pleaded on indictment by virtue of Section 40 of the Criminal Justice Act 1988.

I would not expect Members of the Committee to understand the full beauty of that explanation without looking at the specific provisions. But that is what my note states. I hope that that deals with the point.

Clause 23 agreed to.

[Amendment No. 160 not moved.]

Clause 24 [Racially-aggravated public order offences]:

[Amendment No. 161 not moved.]

Lord Monson moved Amendment No. 162: Page 19, line 34, leave out ("two years") and insert ("twelve months").

The noble Lord said: With the leave of the Committee I shall speak also to Amendment No. 165, and to a phantom amendment which would have been Amendment No. 159A had I realised before two o'clock this afternoon, which I did not, that a similar subsection appears at the end of Clause 23. It has been dealt with effectively by the noble Lord, Lord Carlisle, when dealing with the question of common assault. If we agree to these provisions, that would follow automatically.

The purpose of the amendment is to reduce the increase in the sentence for the racial element from a 300 per cent. to a 100 per cent. increase. The increase provided in the Bill is 40 per cent. in the case of most fines; and I believe that one fine is increased by over 100 per cent. Had Amendment No. 160 been moved and agreed to, that would have provided a reasonable 20 per cent. increase. But it has not been moved.

However, to raise the maximum sentence from six months to two years seems excessive, as the noble Lord, Lord Carlisle, said. He also pointed out that it would involve trial by jury in almost every case, a great waste of time, and considerable extra expense. By going part of the way towards the Government, and agreeing to a 12 month increase rather than the status quo, admittedly trial by jury would still be involved, but 12 months, which doubles the existing maximum, is more reasonable than quadrupling it. I beg to move.

Lord Falconer of Thoroton

As the noble Lord, Lord Monson, pointed out, Clause 24 sets out a maximum sentence for the racially aggravated version of the offences contained in Section 4 and 4A of the Public Order Act 1986. In essence, his amendment seeks to reduce the increase in relation to a conviction for a racially aggravated offence under those provisions.

As the noble Lord, Lord Monson, knows, as a general rule magistrates' powers are limited to six months' imprisonment on summary conviction. If there are to be any increased penalties for racial harassment the offence must be triable on indictment. The normal lower limit on the power to imprison on indictment is two years' imprisonment. This reflects the seriousness of such offences. It seems to us that it is simply a matter of judgment as to where one puts the level. Some view has to be taken about the seriousness of racial aggravation in such offences. It is plain that we take a serious view of it. If one has such a maximum, that is the way of conveying the extent to which we think that it is serious. I appreciate that the noble Lord and others may disagree, but the line has to be drawn somewhere. We know that a maximum is not mandatory, but it sets the tone and gives the sentencer the range.

We believe that it is the right point at which to put it. Having referred to the remarks made by the noble Lord, Lord Monson, we are minded to stick with that level.

Lord Monson

I am grateful to the noble and learned Lord the Minister for that answer. I still find it most puzzling. I am surprised that there have been no comments from other parts of the Committee which seems to acquiesce in the quadrupling of a sentence. However, I failed to spot that the argument applies with even greater force to the similar provisions of Clause 23. Therefore I believe that it would be more sensible to return at the next stage with a package deal. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 163 and 164 not moved.]

6 p.m.

On Question, Whether Clause 24 shall stand part of the Bill?

Viscount Colville of Culross

At the risk of the dire displeasure of my noble friend Lord Bridges, I must return to alternative sentences under the Public Order Act. I hope that the noble and learned Lord the Solicitor-General will appreciate that the last thing in the world I wish is to be difficult. Whatever law is passed, I will do my best to administer it. If I get it very wrong—sufficiently wrong—it will come up in front of the noble and learned Lord, Lord Lowry, and he will put it right. But when one is dealing with public order one is dealing with the bread-and-butter material of what happens in the Crown Courts.

We often have cases of violent disorder and of affray. The Public Order Act states: If on the trial on indictment of a person charged with violent disorder or affray the jury find him not guilty of the offence charged, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty of an offence under section 4", which plainly refers to threatening words or behaviour.

In Clause 24(1)(a) of this Bill the Government are creating a new offence, and it is a different offence. It is one of threatening words and behaviour which is racially aggravated. There is no amendment in the Bill, either here or in any schedule that I can see, which states that when one has an indictment which contains either violent disorder or affray, the jury may find the person guilty in the alternative of an offence under Clause 24(1)(a) of this Bill. It just does not say so—in which case I assume that the Government do not wish them to do it.

I respectfully suggest that what will happen in these circumstances is this. If the prosecution wish to prosecute someone for a racially aggravated public order offence, they will have to decide whether they are going to go for ordinary violent disorder, ordinary affray—noble and learned Lords were right in saying that it will not be necessary for them in those circumstances to prove anything by way of racial aggravation—or they are going to go for racially aggravated threatening words and behaviour under what is now Clause 24(1)(a). There is no alternative. The two things are not an alternative. They cannot be, because of the way the legislation is drafted. If they wish to proceed, for instance, on affray, it will not be necessary for them to prove any racial aggravation. They will just prove an affray in the ordinary fashion. There will be no alternative of racially aggravated threatening words and behaviour under Section 4, because it cannot be an alternative. They will therefore have to put two counts. They will have to have ordinary affray, which by definition will not have to be racially aggravated, and they will have to have a second count of racially aggravated threatening words and behaviour. What the jury will make of that, I really do not know.

There is an added complication. Having been confronted with non-racially aggravated affray and the alternative of a racially aggravated offence, the jury will also have a third alternative under subsection (6) whereby they can find a non-racially orientated offence under Section 4. If the noble and learned Lord really wants judges in the Crown Court to sum up, and the prosecution to proceed, upon that basis, we will do it. There is no problem. What will happen, I shudder to think; but that is what we will do because we are bound, as a matter of law, to do it under the Bill as it now stands. I merely ask the noble and learned Lord whether that is what the Government intend. I do not believe that it is. I believe that it makes matters much more complicated than was ever proposed. I hope that it is not supposed that I am being difficult. I am trying to achieve clarity so that we know where we are when we are trying to handle such cases in front of juries.

Lord Mishcon

I wonder whether I may be allowed to intervene on a rather different note. I have had to be absent from the Chamber over the past half an hour or so. If this point has been made by another noble Lord, will the Committee please accept my humble apology?

We are dealing at Committee stage with a new type of offence, and we are thinking in terms of a new type of sentence. I take advantage of the fact that the Home Office Minister is sitting on the Front Bench and I know that he will not mind my asking him to listen to this. Because it is a new type of offence, because it is motivated by some sort of evil thoughts, as distinct from many other crimes, have we also considered what sort of remedial treatment will be accorded in prison to people who are convicted of these offences? I should like to know that some sort of "tutorial", or some sort of spiritual message, is to be given to these people when we are increasing sentences, very properly, in the hope that what they feel by way of hatred is removed and some sort of tolerance is taught. In other words, we should be considering remedying as well as punishing.

The Earl of Mar and Kettle

What the noble Lord, Lord Mishcon, has just described is a topic that is raised and forcefully debated at long length during an intensive probation project. There is no reason why such an activity should not be extended to prisons as well.

Lord Falconer of Thoroton

First, the description given by the noble Viscount, Lord Colville, of the process where the indictment in effect has to contain, to deal with the situation indicated, the three charges, is correct. He is absolutely right in his description of what the legal position is. In particular cases there would be two ways to proceed. It would first be a matter for the Crown Prosecution Service to determine what it was appropriate to put on the indictment. It would have in mind the need not to overload the jury with complicated interlocking charges which could in certain circumstances lead to the sort of complication and difficulty to which the noble Viscount referred. If the Crown Prosecution Service took the view that, despite the interlocking nature of the charges, nevertheless they should all be listed, and the prosecution, at the hearing decided to proceed with all three, then the noble Viscount is right. The only solution then would be for the judge to sum up as best he could in relation to the particular charges on the indictment.

I am not sure that I necessarily accept that in every case where that happens it would be as difficult or as complicated for the jury as the noble Viscount suggested. I certainly do not think that his intervention was at all an attempt to make matters difficult. It is an important point to consider, and one will consider it. But the noble Viscount is absolutely right as to the effect of the law. One would hope that, as a matter of practicality, it would not lead to too many difficulties.

To turn to the point made by the noble Lord, Lord Mishcon, one would hope that there would be something done. I have no idea what the present arrangements are, and it may be necessary to write to the noble Lord. It is certainly a point that one would bear in mind, but I do not think, with respect, that it goes to the wisdom or otherwise of this clause.

Lord Elton

Perhaps I can tell the noble and learned Lord with what anxiety a lay Member of this place hears him say, "Yes, it is the case. We are making a framework of sentencing so complicated that it may, on occasion, be prudent not to pursue a course of justice because the jury may not understand what is being argued."

Lord Falconer of Thoroton

I wish to make two points, with great respect. First, it is not a sentencing framework. Concerns were expressed by the noble Viscount, Lord Colville, in relation to the crime itself. Secondly, under the law as it presently exists in many areas, if prosecutors overload indictments, if at court they proceed with too many charges, there will always be scope for overloading indictments and complicating matters for the jury. The one thing that it is important to underline is that in relation to all criminal trials on indictment, as long as the prosecutor is sensible, normally the charges laid before the jury will be capable of easily being summed up by the judge. But one cannot legislate for prosecutors who put too much into an indictment.

The point I was trying to make rather unskilfully is that of course one can put together a concatenation of circumstances that will lead to complications. It will normally be avoided by—and I say this with trepidation—the good sense of the lawyers involved. If not, then one hopes that the judge will put pressure on at the beginning of the trial to try to make the package more digestible to the jury. So, with respect, although the point is well made as regards the law by the noble Viscount, Lord Colville, as a matter of practice one hopes that it would not cause too many difficulties.

Clause 24 agreed to.

Clause 25 [Racially-aggravated harassment etc.]:

[Amendment No. 165 not moved.]

Clause 25 agreed to.

Clause 68 agreed to.

Clause 26 [Racially aggravated offences]:

Lord Monson moved Amendment No. 166: Page 21, leave out lines 12 to 17.

The noble Lord said: The arguments in favour of this amendment are precisely the same as those in favour of Amendment No. 157. I could not move the two amendments together because apparently Scottish legislation cannot be grouped with English and Welsh legislation for some reason. However, I invite the Committee to consider the arguments I put earlier. Having heard the response, if any, I shall almost certainly beg leave to withdraw the amendment. I wait to hear the reply. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I should have advised the Committee that if Amendment No. 166 is agreed to, I cannot call Amendments Nos. 167 or 168. I apologise for that.

Lord Mackay of Drumadoon

Perhaps I may make a brief intervention to indicate that, speaking from the perspective of a Scottish lawyer, I have no difficulty in the Government seeking to define a similar concept in a different way from England in so far as it is to apply in Scotland. The point was raised by the noble Lord, Lord Meston, earlier on, that I should not trespass into English definitions. However, in the hope that it might shorten proceedings I can indicate to the noble and learned Lord the Lord Advocate that while I have difficulties with Clauses 26 and 79, they do not lie in the definitions which have been chosen.

The Lord Advocate (Lord Hardie)

Dealing with Amendment No. 166, I reiterate the comments made by my noble and learned friend the Solicitor-General in replying to Amendment No. 157. For these provisions to be effective, it would be essential that the test of what constitutes racial aggravation is set at a realistic threshold. If the amendment were accepted, the only way in which the prosecution could succeed would be to prove a racial motivation.

There will, of course, be cases where there is sufficient evidence of that, but there will be many others where there is not. Indeed, a number of respondents, including the Association of Chief Police Officers for Scotland and the Faculty of Advocates in Scotland, have commented on the difficulty of proving motivation and the lack of precedent within the Scottish legal system. They preferred the Government's formulation. With that brief explanation, I hope that the noble Lord will withdraw his amendment.

Lord Monson

I am grateful to the Minister; he has explained it extremely clearly. I accept the Government's point of view. I do not think I can do anything other than beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston> moved Amendment No. 167: Page 21. line 14, leave out ("evinces") and insert ("demonstrates").

The noble Lord said: I spoke earlier to this amendment and to Amendments Nos. 168 and 169. At that stage the noble and learned Lord the Solicitor-General, despite his own national origins, preferred to leave matters to the noble and learned Lord the Lord Advocate to deal with. On that basis, I beg to move.

Lord Hardie

The Government have no objection to the form of words proposed by the noble Lord, Lord Meston, in these amendments. As has been observed, the wording would have the same effect and be in line with the parallel provision in England and Wales. This is a matter of judgment and when preparing the Bill we considered using the wording suggested by the noble Lord. But we also took into account the responses which we had received to the consultation paper. in particular from the Faculty of Advocates in Scotland. They cited the existing use of the wording which we have adopted. The Scottish courts are already familiar with the term "evincing malice and ill will" towards someone and they regularly charge juries who seem to have no difficulty in understanding that concept. On balance, we prefer using this formulation in Scotland. Like my noble and learned friend the Solicitor-General, I would not dream of making any comparison between Scotland and England.

Lord Meston

I suspected that that would be the answer, that there was some peculiar reason. It is unfortunate that if it is accepted that the words have the same effect, the same wording cannot be used in the two jurisdictions. Nevertheless, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 168 to 170 not moved.]

6.15 p.m.

On Question, Whether Clause 26 shall stand part of the Bill?

Lord Mackay of Drumadoon

I have given notice of my intention to speak at this juncture on the question of whether Clause 26 should stand part of the Bill. It is right that I should draw the Committee's attention briefly to the fact that a very different approach is taken on this issue in the Bill as regards Scotland from that which the Committee has been discussing for an hour as regards England.

As regards Scotland, only one new offence is introduced; namely, racially aggravated harassment. That is the purpose of Clause 26, as opposed to what is set out earlier in the Bill in Clause 23 dealing with racially aggravated assaults, public order offences in Clause 24 and racially aggravated harassment also in Clause 25.

Therefore, we are very much in the realms about which the noble Lord, Lord Desai, was talking earlier, of a confusion of motives when part but not all of the ambit of criminal behaviour is being addressed by new offences.

What concerns me about the clause is that, as I understand it, the provision will not allow the Crown in Scotland to prosecute anyone for any form of behaviour which cannot already be prosecuted for under one or other of the criminal offences available at common law. Bringing the new offence to the statute book may be giving a false impression to the contrary effect. In other words, it may suggest that behaviour which is not currently capable of prosecution will now become so.

As to the position on sentence, because all these offences are common law offences—breach of the peace, assault, malicious mischief and the rest—the maximum sentence in each case is life imprisonment. The reasoning that has lain behind the presentation of Clauses 23, 24 and 25 as regards England—a need to introduce higher penalties because the current penalties available to the court are insufficient—is not applicable.

The only effect that the new clause will have on sentences is that when a man is charged as a first offender in the summary court of Scotland, the maximum penalty would go up from three months to six months. With that minor exception concerning a first offender, the courts will have no greater powers of sentence. It will be for the trial judge in the appropriate court to impose the sentence he considers appropriate. Obviously the powers will vary, depending on the court in which the case is brought by the prosecutor, but it will give no greater sentencing power to the judges. I say to the Committee that there is not the same justification in Scotland for bringing forward new offences as there is in England.

Next, I should like to look at what the consultees said—the "views on the ground", as the noble and learned Lord the Solicitor-General described them. As I indicated at Second Reading, all three branches of the police force do not support the need for such offences. Having regard to the hour, I do not wish to go into the matter in great detail. The chief constables take the view that the current law is sufficient. They say, By placing the requirement to prove racial motivation on the prosecution, the creation of statutory offences could actually make convictions more difficult to obtain".

The Police Federation likewise does not support the idea and nor do the superintendents. The Church of Scotland's position is of interest. It states, If, as the consultation paper suggests, a new statutory offence would not necessarily help the courts or the police, then there would be no purpose in introducing such legislation". A number of counsel who responded were concerned that the additional burden of proving the necessary ingredient of racial motivation might lead to, a higher rate of inappropriate acquittal". Various branches of the judiciary oppose the idea. The Sheriffs' Association said, We believe the creation of a new statutory offence to be unnecessary. It seems to us that what is contemplated would essentially be a public relations exercise". Sheriff Principal Risk, speaking on behalf of the sheriff principals said, What is proposed is unnecessary, contrary to principle and unwelcome". Sheriff Principal Bowen said that he was concerned, about any proposal to introduce the need to establish motive as a critical element".

The noble and learned Lord, Lord Rodger of Earlsferry, made a similar point in a letter he wrote to the Secretary of State for Scotland which was deposited with the consultation responses. He drew attention in particular to the fact that, by singling out this type of motivation for treatment, one might send the wrong signal to other victims of society. He mentioned those who are assaulted because of a specific sexual orientation and, as he said, crimes with a sectarian motivation have been the bane of Scottish society for many years.

Undoubtedly, racial motivation is a vile matter. But so is the motivation founded upon religion or a perception of belonging to a specific religion. I regret to say, I have had many years of practical experience of people who were assaulted quite out of the blue, for no reason at all other than that they were perceived to be Catholics or Protestants—not through any attendance at the church, but because of the football colours they may or may not have been wearing at a specific time.

I am concerned that if this clause is introduced it will give the wrong impression that the law is currently inadequate and cannot address the need to prosecute those who offend. I am concerned that it may be more difficult to bring about a conviction and will give rise to a risk of perverse verdicts. My experience of indictments or complaints with a multitude of charges is that, on occasion, when a conviction results it is the lesser alternative that is chosen and we may end up with people being convicted of less serious charges where the allegation of racial motivation is deleted.

When the Government consulted on this matter in Scotland, they had in mind and suggested a need to introduce a range of statutory offences along the lines that they are doing for England. I am pleased to acknowledge that, while there was some support for that wide-ranging set of proposals in the responses, clearly within Government views have been expressed saying that that was undesirable; that the common law is able to deal with racially motivated violence and some of the other public order offences that we have. Unfortunately, the new offence of harassment crept in. I hope that even at this late stage, it may be possible for the Government to acknowledge that, far from making things better for those who are the victims of racial crime, it may in fact make things worse. It is for those reasons that I speak against the clause.

The Earl of Mar and Kellie

The noble and learned Lord mentioned sectarianism and that is a regrettable part of life in central Scotland. I live 35 miles from both Edinburgh and Glasgow and we suffer from less sectarianism than one may find in the west of Scotland, but it still exists.

When growing up in the 1950s I learnt that the Irish immigrants were the problem. I also noticed that they were Catholics. As it was a cultural and not doctrinal issue, it disturbed me then and disturbs me now. To this day one is asked, "Which school do you go to? Which team do you support?". It is important that we send a message to the public in Scotland that that kind of thinking is getting us nowhere in the creation of a harmonious society.

I shall therefore support the clause. It is important that people grasp the fact that some characteristics we can do nothing about; they are our cultural inheritance and were imposed presumably by our families. But there are other characteristics which we have chosen to take upon ourselves and for which it is appropriate that we should be blamed. The introduction of this type of legislation helps to bring about that debate.

Lord Hardie

A number of points have been raised and perhaps I should declare an interest. Speaking as a descendant of an Irish immigrant, I am all too well aware of the prejudices which exist.

In relation to the points made by the noble and learned Lord, Lord Mackay of Drumadoon, about the confusion of motives and the ability of the law at present to deal with the situation, I say simply this. The common law in Scotland does indeed have the advantage of being flexible and much of the behaviour which would constitute racial harassment would be covered by the crime of breach of the peace. However, there may be cases where a charge of racially motivated harassment fits the facts of the case better than would fit a common law charge of breach of the peace.

Moreover, the introduction of the new offence will help to clarify what behaviour is properly deemed to be criminal. It is necessary that not only should all members of the public receive the protection of the law, but also that possible offenders understand what behaviour society will not tolerate. This statutory offence will make things clearer for possible victims, for the police and for possible offenders. It does not undermine the use of the common law offence of breach of the peace and the prosecution policy will be to consider which is the more appropriate in the specific circumstances. We are simply adding a provision which will bolster the protection from crime which we already try to give to the public.

In relation to the various responses, there are a number of issues. I accept that the police authorities and the legal bodies opposed the introduction of such an offence. However, a number of other respondents certainly favoured such an offence, including particularly those social work departments and other bodies involved with ethnic minorities who were concerned about the apparent lack of the law to deal properly with the problems which some ethnic minorities suffered in Scotland. I quote from the response to the consultation paper from the Commission for Racial Equality: The Scottish criminal justice system has not created the confidence that it is dealing adequately with racial harassment and racially motivated crime. While the common law may have certain advantages, its use has not sent out a clear public message that racial harassment and racially motivated violence is wholly unacceptable in Scotland". If that is the impression of the Commission for Racial Equality, if that is the impression of ethnic minorities in Scotland, I am ashamed that the law does not meet the needs of those minorities. That one response of itself would justify the creation of this offence.

As for the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President, I accept, as did some of my noble friends earlier, that there are other matters which ought to be addressed—religious bigotry and bigotry based on someone's sexual orientation—but what must be borne in mind is that we are dealing here with racial harassment and racial offences. It is easy to identify such offences because they are related to the colour of someone's skin and to his or her ethnic background, whereas if one were to extend the protection to other forms of bigotry it might be more difficult to identify. I am not saying that we should shy away from that, but, as my noble friend Lord Williams of Mostyn said, we should not throw away the protection from racial harassment simply because there ought to be protection from harassment for other minority groups. We will address these matters at an appropriate time, but, in the meantime, I would urge the Committee to agree that the clause should stand part of the Bill.

6.30 p.m.

Lord Mackay of Drumadoon

I am grateful to the noble and learned Lord for his full and clear explanation. He chose his words carefully when dealing with what this new offence would allow to be prosecuted. I hope I did not misunderstand him but my impression was that he accepts my position that it will not allow the Crown to prosecute people for behaviour for which it cannot prosecute at the moment. Therefore, I do not accept that there is anything wrong with the law, although I fully accept the point he made regarding the Commission for Racial Equality that it may be perceived that there is something wrong with our law.

But there it is. I have pointed out the difficulties. I am not alone in doing so. I hope the concerns expressed by those who practise in the field do not bear fruit. However, in the light of what has been said, I do not insist on my opposition to Clause 26.

Clause 26 agreed to.

Lord Bridges moved Amendment No. 171: After Clause 26, insert the following new clause— ("Publication of telephone conversations OFFENCE OF PUBLISHING TELEPHONE CONVERSATIONS

1. .—(1) Subject to subsection (2) below, a person who publishes, or causes to be published, a telephone conversation made by means of a public telecommunication system shall be guilty of an offence.
2. (2) Subsection (1) shall not apply in a case where
1. (a) the recording of the conversation did not contravene the provisions of the Interception of Communications Act 1985, and all parties to the telephone conversation in question have given their consent to publication;
2. (b) one of the parties to the conversation is a journalist, the conversation was undertaken as part of his professional investigations and the journalist made it clear to the other party or parties to the conversation that the conversation was being either—
1. (i) recorded, or
2. (ii) conducted with a view to publication;
3. (c) the conversation was recorded by the employer of one of the parties to the conversation ("the employee") as part of a routine procedure for recording telephone conversations within the workplace provided that—
1. (i) the employee has been made aware in writing of this procedure, and
2. (ii) publication is necessary for or in connection with the conduct of disciplinary proceedings; or
1310
4. (d) the recording of the conversation has been authorised by the issue of a warrant by the Secretary of State under section 2 of the Interception of Communications Act 1985, and publication has been authorised by the Director of Public Prosecutions for use in legal proceedings.
3. (3) A person found guilty of an offence under subsection (I) shall be liable—

1. (a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both;
2. (b) on conviction on indictment, to imprisonment for a term not exceeding six months, or to a fine, or to both.").

The noble Lord said: In speaking to this amendment I should first explain the intention, which is to create a new criminal offence; namely, the publication of the text of a clandestinely recorded telephone conversation. It is already illegal to make such a recording, under the Interception of Communications Act 1985, when the communication passes from the wires of the public telephone system, which must, I think, cover the large majority of such telephone calls.

I have for long been of the opinion that a legal provision in this sense would be in the public interest, and the possibility came freshly to mind when listening to the debate in this House on the Motion of the noble Baroness, Lady Turner of Camden, on 14th January. I listened with particular attention to the earnest and carefully argued plea of the noble Lord, Lord Wakeham, that the only way to regulate the press is by a voluntary code and that any statutory system is bound to fail. I must explain that I, too, do not favour wholesale statutory control of the press, and that I value the best traditions of the free press very highly. That is an essential part of our democratic freedom. But that is not to say that an occasional statutory milestone would not be helpful. That is what the amendment is designed to do—to indicate a no-go area.

What I hope the amendment would do would be to reduce to some extent the commercial pressures which weigh so heavily on the editors of newspapers. The area is surely over-populated today and keeping a newspaper alive must be a tricky business, requiring constant endeavour. I would suppose, as an outsider to this world, that when the editor of a newspaper is offered the transcript of a sensational, perhaps salacious, conversation involving persons of interest to the public, he may conduct his own private cost-benefit analysis. On the debit side, he would calculate the damages he might have to pay in the case of publication and the heavy cost of litigation and legal advice; while on the positive side of the balance he would estimate the increased circulation of his paper and the extra profit he might hope to win. He might also be swayed by arguments of the "publish and be damned" variety and the extra prestige and security in his job which he might gain in the eyes of his proprietor, always a significant matter for the editor of a newspaper.

I do not believe that the decision to publish sensitive material should be examined in this way at all. No, it should be clear to the editor that he is in possession of what is almost certainly an illegal document and that publication would be a further illegality for which he would be held personally responsible. If it is a seriously incriminating document and he wishes to expose evil or reprehensible conduct, there are other means at his disposal. If it involves a figure in public life, he may go to the chairman of the Committee on Standards in Public Life, the noble and learned Lord, Lord Neill of Bladen, to whom he could disclose the nature of the allegation. He need not necessarily make the text of the transcript available for that purpose. If he wished to do that, it might be better for him to consult the Director of Public Prosecutions.

I would myself suppose that sufficient could be said in such indications to indicate the nature of the allegation so as to permit the public authorities to conduct their own investigation without using the text of the transcript. The editor could also consider an approach to the Home Secretary or to the Permanent Secretary at the Home Office, a person always chosen for his extensive experience, good sense and discretion. My hope is that the editor's help would in due course receive public acknowledgment and thanks in the event of a successful prosecution or the unveiling of some sordid practice. That would be the best way to increase public esteem for the newspaper and its editor.

I turn briefly to the text of Amendment No. 171, which stands in my name and that of my noble friend Lord Monson. Subsection (1) creates the new offence. Subsection (2)(a) exempts a legitimately recorded telephone conversation when the parties have agreed to its publication. Subsection (2)(b) is intended to cover the situation, quite common, I believe, when a journalist telephones a politician or a person in public life and both parties are aware that the conversation is likely to lead to the publication of an account of it. The journalist may wish to record the conversation to ensure the greater accuracy of his report. The amendment seeks to make it clear that this is a permissible practice but that the journalist should inform, and preferably obtain the prior consent of, the person being interviewed before the recording starts.

Subsection (2)(c) covers another common situation, typically in the dealing room of a bank or financial institution, where the telephone conversations of the dealers are routinely recorded to protect both parties in the event of a misunderstanding or a failure to complete a deal. Should such problems arise, the regulatory body may play back the tape to ascertain what was said. The words in this subsection enable the regulator to use the transcript for this purpose and as the basis for discipline, if necessary, provided that the employee has been given written notice of this procedure in advance. Normally, I believe the employee is informed of this practice at the time of his engagement, but the effect of the amendment would make this a requirement.

Subsection (2)(d) enables the Director of Public Prosecutions to make use of transcripts, which have been properly authorised by the Secretary of State, as supporting evidence in a public prosecution.

Subsection (3) determines the penalties for infraction; namely, a term of imprisonment not exceeding three months or a fine at Level 5, that is £5,000 at present. I suggest that, given the financial muscle of the press, the possibility of imprisonment for this offence does need to exist, if only used as a deterrent or for possible use in particularly grave cases.

I venture to hope that this amendment will attract support from the Committee. I must make it explicit that it is not aimed at any particular person or class, whether newspaper editor or proprietor. Rather, it seeks to mark the limits of acceptable behaviour in an area where I believe it is increasingly needed. The technical means of recording telephone conversations have grown rapidly in recent years and are still increasing. If we are to maintain the privacy of private, personal conversations and communication, which we rightly prize and cherish in this country, I believe that an amendment on these lines is required.

I am not myself a lawyer and I have relied much on the expert advice and skills of some of my noble and learned friends and on the staff of the Public Bill Office, which I am glad to acknowledge. If others in the House and, of course, the Government Front Bench, have improvements to suggest, I shall be glad to consider them. I am not wedded to this precise form of words, but do earnestly seek to improve the current situation with a passage on these lines.

I may be asked whether this Bill is the appropriate vehicle to add this amendment. I should explain that I did take advice on this point from the Public Bill Office. I asked whether the Bill ratifying and incorporating the European Convention on Human Rights might be more appropriate. The office said that this Bill was a better vehicle. That explains my intention. I beg to move.

Lord Monson

It is a relief this afternoon to follow someone with the eloquence of my noble friend Lord Bridges, which spares me from having to detain the Committee for more than a minute. My noble friend has put the case for his very well thought out amendment extremely well, as one would expect. I only wonder whether a Level 5 fine on summary conviction is adequate given the gigantic profits that can be made from publishing someone's intimate telephone conversation, but that is obviously something that one can deal with at a later stage.

Thirty or 40 years' ago eavesdroppers and people who opened other people's letters were considered beyond the pale. Those who profited from such activities were considered the lowest form of human life. Sadly, that is no longer the case. That is why an amendment like this is needed. I hope that the Committee will support it.

6.45 p.m.

Lord Williams of Mostyn

I am most grateful for the admirably clear exposition of the thinking behind this amendment, which was propounded by the noble Lord, Lord Bridges. This is a subject which the Government take with great seriousness. We recognise the widespread concern which has been expressed and also re-expressed, by the noble Lord, Lord Monson, about the publication of communications which are intended to be and are essentially private.

This is an area to which EC data protection legislation may he relevant. The 1995 general EC data protection directive establishes European-wide rules for the protection of personal data which might in some circumstances apply to telephone conversations. The Data Protection Bill currently before your Lordships' House gives effect to the directive. One of the things the Bill does is to make it an offence to disclose personal data without authorisation.

More specifically, Article 5 of the telecoms data protection directive requires member states to ensure, via national regulations, the confidentiality of communications, and in particular, to prohibit the listening, tapping, storage or other kinds of interception or surveillance of communications other than by users, without the consent of the users concerned, except when legally authorised to do so. Generally, the telecoms data protection directive has to be implemented by 24th October 1998, although there is a derogation in relation to Article 5 until October 2000.

The Government are currently considering the implementation of this directive, and the issue of whether there should be an offence of publication as well as of recording will be considered by the Government in that context.

As the noble Lord, Lord Bridges, indicated, there are important matters here: the principles of privacy, public interest and press freedom. We want to give all those different strands very careful consideration in the context of implementing the EC telecoms data protection directive. I have spent a moment or two outlining the background to indicate that the Government have taken the principle and spirit behind this amendment with some seriousness. I hope that the noble Lord, Lord Bridges, feels that I have done justice to his concerns and that on the basis of my assurance he will be able to withdraw his amendment.

Lord Monson

Before the noble Lord sits down, can he tell us what are the maximum penalties proposed in the EC directive for breaches of the rules?

Lord Williams of Mostyn

I cannot because that is a matter which is presently being considered in the context of how we implement the directive.

Lord Ackner

Before the noble Lord sits down, can he tell us what is the objection to putting into the Bill this simple provision? It means that it will come in quicker than in any other legislation. It is quite appropriate to a criminal justice Bill. On the basis of what the noble Lord says, there is clearly a need for the protection which it purports to give to be available. Are not the Government prepared to take this matter back and consider the appropriateness of this measure being inserted now in a criminal justice Bill?

Lord Williams of Mostyn

The objection is quite plain. As Members of the Committee will know, in the Data Protection Bill we have constructed in Clause 31 a very careful regime to protect different interests; namely, individual personal information privacy and the interests of a free press as reflected in Article 10 of the European Convention on Human Rights. Since we have a duty to implement the directive, we believe that we ought to carry out the work in that context rather than in the context of the present Bill.

Lord Ackner

Will there be an offence of publishing in that legislation?

Lord Williams of Mostyn

I said a moment or two ago—perhaps I was speaking too quickly—that the Government are currently considering implementation of the directive. The issue of whether there should be an offence of publication as well as of recording will be considered by the Government in that context.

Lord Monson

I am sorry to interrupt the noble Lord again. Can he say whether there is anything in this amendment which is inconsistent with what will appear in the directive?

Lord Williams of Mostyn

I know what is in the directive, but that is not what matters. What matters is what will be in the Bill that we shall be obliged to bring before your Lordships' House. Since there is a derogation to the year 2000 and I presently lack the gift of prophecy, I cannot say the precise form of the Bill. I hope that I have set out quite carefully the fact that the Government treat this matter with great seriousness. We believe that it is in the context of the telecoms data protection directive. We shall have to give effect to it by the year 2000. That is the proper context in which to deal with this particular aspect and mischief.

Lord Bridges

I am grateful to all those noble Lords who have spoken in this brief debate and I am particularly grateful to the noble Lord, Lord Williams of Mostyn, for having investigated this matter and for speaking with his habitual courtesy and precision. He refers to two pieces of European legislation. The first concerns the protection of data and, so far as I recall this particular piece of legislation, it relates to the protection of data in computers and other electronic storage. I do not think that it is altogether appropriate to mention that in connection with this amendment. I am not familiar with the second piece of legislation. However, if, as I understand from the noble Lord's explanation, it concerns the protection and security of telecommunications and that it will require subsidiary legislation in this country in order to give it effect in the next year or so, it would seem to me that if, with the Government's assistance, we were able to perfect this amendment and insert it in the Bill that would in effect apply the regulation to which the noble Lord refers. If that is not the case I should be very glad to be informed. My present intention is to beg leave to withdraw this amendment and study the directive to which the noble Lord refers and perhaps return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 [Offences racially aggravated]:

The Earl of Mar and Kellie moved Amendment No. 172: Page 67. line 17, leave out ("to the satisfaction of any court") and insert ("beyond reasonable doubt").

The noble Earl said: I prefer the words "beyond reasonable doubt" proposed in Amendment No. 172 as opposed to the expression "to the satisfaction of the court". I well appreciate that the word "satisfaction" has a special meaning in legal circles but its interpretation on the street will be misleading, to say the least. The expression "beyond reasonable doubt" is the normal Scottish expression used to describe the criminal standard of proof applied in Scotland. The other expression "on the balance of probabilities" relates to the lower standard of proof rightly used in the civil courts. I believe it is helpful to all citizens to minimise the range of code words or expressions used for legal concepts. Persons who are baffled by legal language are not well served by a parliament which ends up pronouncing on everyday matters in unnecessarily obscure ways.

I am in favour of this clause. I like the add-on approach taken by the Bill. I believe that the public will he heartened to hear that an offender was sentenced for his offence and that a consecutive sentence was added on because of the racial content of the original offence. I believe that this will be a useful message for people to read about in the papers. The creation and maintenance of a multicultural society in Scotland is an aim well worth grasping. Everybody should be able to clearly understand what the law is about. I beg to move.

Lord Henley

Obviously I am not equipped to deal with Scottish legal matters and my noble and learned friend—lucky man—has already set off to return to pastures north. I rise only to say that following the advice given by the noble and learned Lord the Lord Advocate that my noble and learned friend should always follow the advice of the noble Earl, Lord Mar and Kellie, I am sure that my noble friend would agree with everything the noble Earl has had to say and will look very carefully at the response of the noble and learned Lord the Lord Advocate.

Lord Hardie

I am grateful to your Lordships for having raised this point. I consider that the words which are sought to be deleted are unnecessary and what I would propose to do, if the noble Earl would withdraw his amendment at this stage, is to table a similar amendment at Report, to delete the words which he seeks to delete. I would propose to make a statement at that stage if noble Lords should wish to have any clarification as to what the position would then be.

The Earl of Mar and Kellie

I am particularly grateful to the noble and learned Lord the Lord Advocate for those consensual words and I look forward to seeing what he comes forward with at Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 agreed to.

Clause 27 [Abolition of rebuttable presumption that a child is doli incapax]:

[Amendment No. 173 had been withdrawn from the Marshalled List.]

Lord Goodhart moved Amendment No. 174: Page 21, line 43. at end insert— ("( ) Where a child aged 10 or over is accused of an offence, it shall be a defence for him to show on the balance of probabilities that he did not know that his action was seriously wrong.").

The noble Lord said: Amendment No. 174 proposes the abolition of the rule known by one of those tiresome expressions of legal Latin, doli incapax. The doli incapax rule has come under considerable attack in recent years and that attack is indeed, I believe, to a large extent justified. In many cases the presumption that a child or young person under the age of 14 does not know that what he is doing is seriously wrong is indeed contrary to common sense. It is a waste of time and money to call evidence to prove what is in fact obvious: that a 13 year-old defendant who has done something extremely unpleasant knew that his conduct was seriously wrong.

We on these Benches are not prepared to support the rule as it now stands, but it is still true that 10 year-olds do not have the same degree of understanding of right and wrong as adults. Many 10 year-olds who commit criminal offences or acts which in the case of someone of capacity would be a criminal offence are children who have grown up in families where they have had inadequate guidance as to right and wrong and they cannot always be treated as being legally responsible for criminal actions.

One alternative possibility, apart from leaving the rule in existence as it now stands, would be to abolish the presumption completely but at the same time to raise the age of responsibility to 11 or 12. That is a proposal which is supported in fact by a number of voluntary organisations and it is a proposal with which I must say I have some sympathy. That sympathy has not been reduced by the disaster—I do not think any lesser word is appropriate—of the recent rape trial at the Old Bailey which, despite the extremely sensitive way in which it was handled by a very experienced judge, can in the end have done nothing but harm to all the children involved.

Our age of criminal responsibility is in fact very low by European standards. Of significant European countries apart from the United Kingdom, the only ones with an age of responsibility of less than 12 are Ireland and Switzerland: so I must say that I think the complete abolition of the doli incapax rule is wholly inappropriate. If the Government are not prepared to consider the possibility of raising the age of criminal responsibility, a better solution would be that which is in fact set out in Amendment No. 174: that is not to abolish the presumption but in effect to reverse it.

This will deal with the present situation because it will abolish the need for the prosecution automatically to have to lead evidence to show that the child defendant knew that what he or she was doing was seriously wrong. At the same time it will leave it open to the defence to call evidence that the child did not have the degree of understanding which is needed to establish criminal responsibility.

If we are to retain the age of 10 as the age of criminal responsibility I do not believe that it is right to abolish absolutely, as Clause 27 proposes, the presumption of doli incapax. In that case we need to retain the right to establish that in fact the child does not have criminal responsibility. I believe that that is a reasonable price to pay for the removal of the rebuttable presumption that exists now. I beg to move.

7 p.m.

Baroness Mallalieu

I support this amendment. In doing so it is right that I should declare an interest as a practising member of the criminal Bar who acted in the case to which the noble Lord, Lord Goodhart, has just referred and, sadly, other cases involving children as young as 10. The present law is plainly ripe for review and change, but to say goodbye to this doctrine altogether and put no safeguards in its place would be a major error that we would very soon come to regret. If we wanted to see more 10 year-olds sitting in the dock of our major Crown Courts sucking their thumbs and colouring in books during trials this particular clause unamended would be a way of achieving it.

Some 4,000 children aged between 10 and 13 pass through our criminal courts each year despite the existence of the doli incapax doctrine. If that presumption goes and nothing replaces it that number must increase. I accept it is far from satisfactory that at present in order to try to obtain the necessary evidence that a child understands right from serious wrong a police officer is obliged to question him or her from a pro forma list of questions about a range of irrelevant situations, asking him or her to indicate what, on a numeric scale, he or she considers the seriousness of such matters to be. I doubt that the right result is produced by this method or by calling to give evidence for the Crown people who sometimes hardly know the child but then profess on oath to be able to express an opinion on this issue.

At least the present doctrine requires the prosecuting authorities, and later the courts if the case proceeds, to give careful thought to whether the individual child is criminally responsible. It may well be that at present some who are so responsible escape justice because the evidence to prove that they understand cannot be adduced. Therefore, I accept the need for change. But equally I am sure that at present we try some children who should never reach a court. I fear that there will be many more if we simply adopt the course that the Government propose.

A child of 10 cannot be treated for the purposes of the criminal law like an adult. A child of 10 is unlikely to understand the complexities of a prosecution or the trial process no matter how carefully and sympathetically they are explained. He is unlikely to have the concentration to be able to follow the evidence properly. Often he cannot begin to give clear and consistent instructions to his lawyers. Often decisions which only the defendant should take about how to plead or whether or not to give evidence cannot be made by children of this age. The ordeal of giving evidence in a public forum, however sympathetically it is done, is magnified if one is dealing with a young child, not to mention the strain of awaiting trial, no matter how much it is expedited, which may have lasting and damaging effects.

Where and how we try children for serious offences needs urgent examination and reform. Clearly, this amendment is not the place to explore that. Maybe we should be looking for ways of trying serious cases before judges sitting in youth courts. This amendment is no substitute for proper detailed examination of the case involving each individual proposed child defendant before the prosecuting authorities decide to proceed; in other words, before the trial process begins. If the law changes, the prosecuting authorities will have to be a great deal more rigorous than they are now in saying that there should be no action. At least under this amendment if it is left open to the defence to argue at some stage that the child is not criminally responsible, even as late as the trial itself, the injustice of a wrongful conviction may still be avoided.

It is perhaps the ultimate irony that no child under 14 is allowed into the public gallery at the Old Bailey, yet we put children of 10 in the dock there. If this clause is not amended I am afraid that we shall see even more of them there.

The Earl of Mar and Kellie

Since this is a United Kingdom parliament, I remind the Committee that for many years the age of criminal responsibility in Scotland has been eight.

Lord Ackner

I fully understand the concern of the noble Baroness as to whether we properly try children of very young ages. But I do not believe that what we are concerned with here has anything to do with that. One is concerned with the extent to which one changes the law in relation to a presumption. The present presumption obliges the prosecution to prove not only that a child under 14 committed a criminal act but also that he knew that the act was seriously wrong as opposed to being merely naughty or mischievous. That is all we are concerned with—nothing else.

Two years ago the Appellate Committee considered the case of C. (a minor) v. DPP reported in [1996] A.C. 1. The noble and learned Lord, Lord Jauncey, who presided said (at page 20): The presumption has been subject to weighty criticism over many years, by committees, by academic writers and by the courts…I add my voice to those critics and express the hope that Parliament may once again look at the presumption, perhaps as part of a larger review of the appropriate methods in a modern society of dealing with youthful offenders". He went on to make the point: No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation. In this connection"— this point is related to what the noble Baroness has said— it is worth mentioning that the system of children's hearings constituted by the Social Work (Scotland) Act 1968 which enables many offending children between 8 and 16 years of age to he effectively dealt with outside the criminal courts works extremely well". That raises a quite different question.

Among the criticisms that have been voiced with regard to this presumption is an interesting article written way hack in 1954 by Professor Glanville Williams. That can be found in the Criminal Law Review at page 493. He observed that the test of knowledge of right and wrong was bound up with the theory of moral responsibility and the right to inflict retributive punishment, since no one can justly be punished unless he is morally responsible.

The article continued: Yet in respect of children it is just as generally abandoned. No one whose opinion is worth considering ought as a matter of moral necessity to expiate his wrong by suffering. Punishment may sometimes be the best treatment, but if so it is because this is the only way in which the particular child can be made to see the error of his ways…In this climate of opinion the 'knowledge of wrong' test no longer makes sense…Thus at the present day the 'knowledge of wrong' test stands in the way not of punishment, but of educational treatment. It saves the child not from prison, transportation or the gallows, but from the probation officer, the foster-parent or the approved school. The paradoxical result is that, the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law. It is perhaps just possible to argue that the test should now be regarded as even legally obsolete. The test was designed to restrict the punishment of children and should not be used where no question of punishment arises. This argument has to face the difficulty that the test traditionally protects the child from conviction, whereas the choice between punishment and other treatment is only made after conviction". That emphasises how out of touch the presumption is in the present day approach to dealing with children.

I suggest that the experience in Scotland justifies the provision as set out in the Bill, and that, as the noble Baroness pointed out, we should dig more deeply into the question: do we try children in the appropriate environment? That is another and greater matter.

The Lord Bishop of Bath and Wells

I am hesitant to speak after the noble and learned Lord. I should like to look at just one or two of the principles involved in what is an important and significant decision. On Tuesday, I was grateful to the noble Lord, Lord Williams, and to the Solicitor-General for the way in which they dealt with the clauses affecting children, not that I always agreed with them. I was grateful for the repeated emphasis that the relevant legislation is intended to be a new way to protect children, and, where necessary, to intervene in the brutalising process which affects many children in the first 10 years of their lives.

Of course that brutalising effect does not stop at 10. We were told on several occasions that what appears on the face of the Bill to be draconian measures are, in the light of the normal practice of good magistrates, good courts and wise authorities, going to work out as protective of and sensitive to children's needs.

As a new boy to this process I hope that the Committee will forgive my asking if it is not essential that the Bill itself must express more of those protective characteristics towards children. Cannot legislation become something very different in other hands, at other times? The amendment would help us to continue to recognise the limitations of responsibility, according to the maturing process.

In some ways, the Bill, as it affects children, reflects the ambivalence of society itself at this time. There are real mixed messages about children. On the one hand, as the Home Secretary said, children are being forced to grow up too quickly nowadays; people agree that children need to be given back their childhood. On the other hand, children are often feared, because of the brutalised lawlessness of a minority of children.

I use the word "brutalised" because in the vast majority of cases that is what they have become—because of what has been done to them. Many children have to carry in their hearts and their heads, and perhaps on their bodies, violence, abuse and bullying, which often results in a sort of mixture of fear and rage which deprives them of their childhood. Out on the streets they can grow a shell of amoral and anarchic behaviour, but they grow in our society in the garden that we create. It is not just created by their parents, though great responsibility lies with them.

Our experience is that approaching children with an attempt to restore security, trust, and safety from harm, often allows children to rediscover their potential, their sense of worth. The constant looking to punishment as the solution to the problem of our children seems to me to be misguided, though necessary as a last resort.

A civilised society cares for its children. Where the child's family breaks, abuses or misuses the child, we have a responsibility for the nurture of children who might appear to some to be villains and to do wrong things. Very often, in my experience, they have been victims—victims before they get into child prostitution, addiction, or repeat the cycles of anti-social behaviour. But just because they are victims does not mean that they do not retain some responsibility. "Appropriate responsibility" were the words used by the noble Lord, Lord Williams.

To deprive a person of his responsibility is to deprive him of his humanity. Everyone has responsibility. It is largely by becoming responsible that we discover who we ourselves are. To be excused of all our behaviour is to be excluded from life. The key here however is "appropriate responsibility"—the maturing process implies that there should be a development of greater responsibility for our actions.

We need to give proper recognition to the childhood of children. When we think of the appalling continuous propaganda to which many such children are submitted—propaganda about abuse, violence and sexual behaviour, suggesting that betrayal, theft, racist thuggery and adultery are norms, and there is a constant drip, drip, drip in the sort of areas about which we are talking, it is no wonder that anti-social children are growing up in what is the garbage of our social experience, enormously damaged.

One reason for supporting the amendment is to recognise and put on the face of the Bill that recognition. Children may light a fire, but have no idea what the consequences might be. Children may put a boot to the side of a head without understanding what the consequences might be. Children do not see cancerous lungs or, tragically, the hell of addiction.

It is important that the Bill offers a decent, safe, adult response, to recreate the setting in which the child may return from amorality to moral identity, from anarchy to belonging and a future. Such children, like their parents, need to be empowered to get it right. A child has appropriate responsibility, but we need to be reminded on the face of the Bill that that is the case. Do not let us reduce childhood still further. If we see in a foreign country children carrying machine guns, we do not look on and say, "What terrible children"; we look on and say, "What a terrible world, what a terrible society".

It is my hope that the amendment will be carried so that on the face of the Bill there may be an understanding, and a visible understanding, of those essential principles.

Lord Judd

I support the amendment. The Committee should be grateful to my noble friend for having given us the opportunity to reflect on the issues at stake. I should begin by declaring an interest. I have the privilege to be the president of the YMCA in England. The organisation does not deal with children of this age, but with a large number of young men and women in their late teens. During the course of the experience which we gain in our frontline work, I am repeatedly struck by the fact that often a young offender has been forged by experience in early life. So often we learn of the total absence of love and affection in the upbringing of the child. So often, sometimes in moving terms. we are told by those with whom we are dealing—for example, the young offenders' institutions—that it is in the young offender's institution that for the first time young people begin to discover a sense of responsibility and belonging.

It is a challenge for a layman such as myself to intervene in this learned debate. However, as a layman, when I am reading appalling offences in which children and young people are involved I often reflect that when the background of the offender is examined we discover nightmarish situations and realise that it would have been miraculous if the young person concerned had come through with a clear sense of what was right and what was wrong.

We also live in a time when the whole ethos of our mass media is increasingly being driven downmarket into sensationalism and morbid preoccupations with what is bad and rotten in society. We also live in a time when, as regards what is right and wrong, what is sent out by leaders of society as role models is confusing and we do not know where the dividing line should be. We also live in a time when in our concern to balance the economy we are emphasising the importance of the basic skills of reading, writing and arithmetic in the early formative years of education. However, that is not coupled with an equally firm commitment to the issue of ethics and so forth. That is happening at a time when the traditional influences of religion are on the wane in schools and among the young. That is why in an organisation such as the one with which I am privileged to be involved attention is increasingly turned to support for good parenting, for example.

I was struck by the amendment on the Marshalled List and wished to say merely that I sometimes worry about our priorities in debates in this Chamber. I worried on Monday evening because we appeared to be talking about controls as distinct from support of what should ideally be in a vibrant democracy. If we are talking about the protection of society no less than the well-being of the child we should concentrate on what is necessary to give children a chance to form a sense of responsibility.

I have a genuine affection and high regard for the Minister and sometimes I feel for him in the difficult role which he has to play. However, I hope that tonight he will give a message about the resolve of the Government not simply to deal with the control mechanisms in the revision of legislation, but to throw an even greater commitment to strength into the positive actions that need to be taken for our young so that we will have an imaginative, creative approach towards the well-being of society and the healthy development of young people and children.

Baroness James of Holland Park

I crave the indulgence of the Committee because I was not present during the Second Reading debate. When I worked at the Home Office, part of my responsibility was to attend the juvenile court. I remember an engaging young scamp before the court who had been letting off pellets from his catapult in the supermarket, causing distress and hurt. When asked whether he knew what he was doing was wrong, he gave the wonderful reply, "I knew that it was against the law, but I didn't know that it was wrong", which caused difficulties.

I wait to hear what the Minister will say in response to the amendment—I have considerable sympathy with it—but I wish to make a point about the treatment of children. Of course we should deal with our young with compassion. Of course we should address ourselves always to means which may help them to live better, fuller, more satisfactory law-abiding lives. However, it is sometimes confusing to the young when treatment and punishment are so separate. I remember the words of G.K. Chesterton. He said that children, being honest, love justice. Adults, being corrupt, naturally prefer mercy. Let us always ensure that what we give our children is in their eyes justice as well as mercy.

Lord Williams of Mostyn

I understand the principles which lie behind a number of speeches made to the Committee tonight. However, without being harsh, I say that the noble and learned Lord, Lord Ackner, has indicated that many of the speeches, although they are well meaning, do not attend to this problem or to this amendment. I say specifically to my noble friend Lord Judd and to the right reverend Prelate that we express in the Bill precisely their concerns. Perhaps I may cite, for instance, Clause 11(5). One must take into account and consider what is: desirable in the interests of… securing that the child receives appropriate care, protection and support and is subject to proper control". As the right reverend Prelate implied, proper control may be necessary before a child can have appropriate care, appropriate protection and appropriate support. It does no child any favour to believe that in some circumstances a properly considered control is not in its best interest. Obviously, the opposite is true.

The right reverend Prelate spoke about some children needing a return to belonging and a decent future—I believe that I paraphrase fairly. Yes, I agree. He also spoke of appropriate responsibility. Yes, that is our view; but in some circumstances the appropriately responsible adult approach must be to offer a particular child intervention, treatment, rehabilitation, help and support.

It is in that context that I turn to the amendment. My noble friend Lady Mallalieu made a most effective speech dealing with a different evil, as the noble and learned Lord, Lord Ackner, mentioned. The noble Lord, Lord Goodhart, spoke of the recent trial at the Old Bailey. The question of doli incapax has nothing to do with the recent trial at the Old Bailey. If the amendment were carried, and those children had been tried in the case to which my noble friend referred, there would still have been delay before they reached the Old Bailey; they would still have had the ordeal of listening to the evidence as they coloured their books. But the evidence would have been directed to the proposition that they had to demonstrate on the balance of probabilities that they did not know that their actions were seriously wrong. I say this with no sense of reproach because I recognise my noble friend's concerns and I recognise the force of her arguments. But this amendment has nothing to do with that particular trial.

Everyone who has spoken this evening agrees that the ancient presumption of doli incapax is wholly out of date. It was historically based as an attempt to mitigate the savagery and barbarism of the criminal law. As the noble and learned Lord, Lord Ackner, indicated in his citation, that was intended to protect children from the gallows, from transportation and from gross punishment.

Here we are saying that the Crown Prosecution Service has a duty to decide, in conjunction with the police, whether or not a caution is sufficient or whether or not the sanction of the criminal law needs to be invoked. If it needs to be invoked, the presumption of doli incapax has gone. We then need to demonstrate that the child has the appropriate mens rea and that the act itself was committed. However regrettably, and no one regrets it more than me, if that act has been done, the child is guilty of a criminal offence. I endorse entirely what my noble friend Lord Judd and the right reverend Prelate said, but some children do wicked acts. No one rejoices in that. No one is happy that at the age of 10, which is very young indeed, those children have done evil things. Very often it is not really their fault because they have been formed by others who have failed to care for them. But the fact is that the act has been committed and the intent demonstrated; otherwise no conviction is possible.

We turn to the situation outlined by the noble and learned Lord. What does one then do? One does not consider barbarous punishments which have now, thank God, been done away with. But one must deal with the circumstances of the individual offender. I say that in no harsh or indeed reproachful way. The objective fact is—and it is a brutal but implacable fact—that the child has committed a criminal offence.

We then need to attend to what happens at that stage. I repeat that we need to deal with intervention, rehabilitation and beginning to assist the child, if at all possible with the parents, to start the long journey back which the right reverend Prelate mentioned. Therefore, we are talking about appropriate intervention and the decent opportunity for rehabilitation with care, help and support.

I repeat that I am not being harsh. But it is true, however unpalatable it is—and I put it as gently as I can—that what Professor Granville Williams said in the citation of the noble and learned Lord is right. The paradoxical result would be that the more warped the child's moral standards—and I am not blaming the child for that but I am recognising that the world we live in is no longer a Garden of Eden—the safer in those circumstances the child is from the correctional treatment of the criminal law. As the noble and learned Lord said, that was written 30 plus years ago and I should not perhaps use words as harsh as, the correctional treatment of the criminal law", but the principle remains. In those circumstances, a child needs assistance and we should attend to the best possible regime of assistance and rehabilitation that we can find.

I have spent a few moments on this matter. I know that principled people can honourably differ in their views. I simply add that we consulted widely. We put forward our consultation document Tackling Youth Crime. Of the 180 who responded on this point, Ill felt that the presumption should be abolished; 48 felt that it should be reversed; and 21 felt that it should be retained in its current form. Therefore, we have not reached our conclusion without very careful and—I say in this context—anxious thought.

7.30 p.m.

Lord Goodhart

The noble and learned Lord, Lord Ackner, suggested that the abolition of the doli incapax rule would benefit children by enabling them to receive appropriate treatment. He went on to say that they would be deprived of that opportunity if they were not convicted in consequence of the application of the present doli incapax rule. The speech of the noble and learned Lord, Lord Ackner, was adopted by the noble Lord, Lord Williams of Mostyn, as very much the basis for his justification of the line taken by the Government in putting forward Clause 27 as it now stands.

My answer is that if a 10 year-old child does not have the capacity to understand that he or she has done wrong, that child should not be in court. Of course the child needs help but that help should be provided through the social services or through the education system. The conviction of a child who genuinely does not know that what he or she has done is wrong offends my sense of justice and I believe that it must offend the sense of justice of most Members of the Committee.

I shall not take the matter further on this occasion and I shall ask leave to withdraw the amendment. However, it is a matter to which we may return on a later occasion.

Amendment, by leave, withdrawn.

On Question, Whether Clause 27 shall stand part of the Bill?

Lord Hylton

I take this opportunity to ask the Government whether, at a later stage of the Bill, they might accept an amendment, probably to the Street Offences Act 1959, designed to make it possible for young people aged under 18 engaging in prostitution, whether on a street or in a house, to be dealt with as in need of care and protection rather than as criminal offenders.

I mentioned that query to the office of the noble Lord, Lord Williams of Mostyn. Of course I understand that he may not wish to make a considered reply. If so, I should be most grateful if he would write to me.

Lord Williams of Mostyn

As always, the noble Lord. Lord Hylton, had the courtesy to inform me of his proposed course of action. Therefore, I have been provided with an answer to his question on child prostitution. The short answer is that there are a number of different responses to the social evil of the prostitution of young people under the age of 16. We need a range of remedies. We believe that to decriminalise child prostitution has certain deficiencies. If the noble Lord tables an amendment, I shall fully deploy those arguments which we believe to be appropriate. But I am responding candidly to his short question as to whether I would accept such an amendment. The answer is that I would not. If, however, the noble Lord tables an amendment, I shall study it and either to this Committee or in correspondence give a fully considered response.

Clause 27 agreed to.

Lord Hoyle

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.38 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.