Lords Sitting of 19 March 1998

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ely.

River Thames: Commuter Transport
Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe asked Her Majesty's Government:
What plans they have to introduce a River Thames commuter transit system which would serve both banks of the river.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, on 16th March the Deputy Prime Minister announced the outcome of a tendering exercise to provide river services to the Millennium Experience Dome at Greenwich, and continuing legacy services thereafter linking a large number of central London piers on both banks of the river. He also announced the award by the Millennium Commission of a grant to help fund the building of new piers and the refurbishment of others. Together these developments constitute an investment of some £21 million in river transport for the capital.
Lord Brooke of Alverthorpe: My Lords, I am grateful to my noble friend for her helpful reply. I congratulate the Government on their work. Essentially, this is development from Westminster seaward to Greenwich. There is also a very substantial growth in population in the west and south west areas of London. Do the Government have any plans for developing the service there? Are the Government prepared to use any of the £500 million announced in the Budget for the purposes of developing a service there?
Baroness Hayman: My Lords, I am grateful to my noble friend for his comments. We are aware of the large new developments to which he has referred upstream along the Thames—for example, at Battersea. Noble Lords may be interested to know that one of the Thames 2000 river service operators has expressed an interest in serving piers further upstream than Millbank. The key to viable upstream services is the provision of good quality piers. Developers are encouraged to include them in new riverside developments. We are pleased therefore to see that plans for a number of new developments including the Vauxhall Effra site, Battersea power station, Lots Road and the renovation of Battersea Park all include proposals for new piers. New Labour, new piers! As to the £500 million for public transport announced in the Budget, the allocation of the extra money will be detailed by my right honourable friend the Deputy Prime Minister very shortly.
Lord Jenkin of Roding: My Lords, does the Minister agree that, leaving aside the question of good quality piers, of which there are quite a number, the real problem—I say this with the greatest respect to the noble Lord, Lord Brooke of Alverthorpe—is not so much serving the banks of the river but people? Is not the difficulty that as a novel mode of transport for London—it is sad that it should be so described in this day and age—it must recognise the needs of the travelling public? Does the Minister agree that part of the problem is that people have never considered commuting by river boat because that is not what they have in mind when they look for houses? They go by rail, bus or tube. Does the Minister agree that there must be a very comprehensive package of subsidiary transport links to connect the major centres of residential population to the new piers that are to be built? Does the noble Baroness agree that both those matters are essential if this is to become an effective development? Can the Minister inform the House what is being done to encourage that?
Baroness Hayman: My Lords, as I said earlier, the Government believe that it is important that the infrastructure is in place to support river services and that in the planning of new developments of the kind to which the noble Lord has referred, including new housing developments, the potential for river transport is fully explored. As part of the Thames 2000 initiative, London Transport has formed a new subsidiary, London River Services, to manage piers and co-ordinate and promote river services in the capital. I believe that that is important because it will help to integrate river transport into the rest of London's transport system. For example, one small but important matter is that for the first time piers will be marked on Underground and bus maps so that people can see how they can be integrated.
Lord Jenkins of Putney: My Lords, while my noble friend is discussing this matter with her colleagues in government, will she ask them to bear in mind that there is an excellent pier at Putney?
Baroness Hayman: My Lords, it is suggested to me that there are two excellent piers at Putney. This one could run and run. I shall certainly take on board my noble friend's comment.
Baroness Gardner of Parkes: My Lords, on the radio I heard the Deputy Prime Minister say that he considered a very important feature to be an integrated ticketing system whereby people would be able to use any form of transport and move from bus to tube to river. Can the Minister inform the House when that is likely to happen and what action is being taken upon it? Coming as I do from Sydney, where harbour transport is used by commuters every day, may I ask the noble Baroness to comment on the fact that in this country weather is a problem? Is special provision being made to take account of the bad times of the year when river transport may be difficult?
Baroness Hayman: My Lords, experience over the years has shown that it is not as simple as some would

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wish it to be to ensure that commuter services are effectively and reliably provided on the Thames. I return to the issue of infrastructure. That is why we believe it is important also to ensure that the available services are adaptable to the needs of commuters. As to the integration of ticketing and co-ordination with other modes, we believe that the creation of London River Services as a wholly-owned subsidiary of London Transport to promote river services will ensure that it becomes part of the strategy for London. Obviously, the creation of the Greater London Authority will provide a possibility for concentrating on the role that the river can play.
Lord St. John of Bletso: My Lords, I welcome the Thames 2000 initiative, but is the Minister aware that one of the reasons for the Thames River Bus proving unreliable was the amount of damage caused to those boats from rubbish in the Thames? In addition to the money being spent on new quays and piers, has the Minister any plans to spend money on cleaning the River Thames?
Baroness Hayman: My Lords, I am aware that there was concern that the craft used by River Bus had difficulties, including those to which the noble Lord referred, but the Thames is one of the cleanest metropolitan rivers in the world. Its quality is improving the whole time. In creating the new services, it is important that we profit from the lessons learnt by River Bus. The problems that it encountered related not just to water quality but also to access to piers, the need to have craft designed specifically for use on the Thames and the need for strong business plans underpinned by considerable investment. We believe that this initiative will cover those areas.
Lord Brabazon of Tara: My Lords, the Deputy Prime Minister made an announcement on Monday, I think, that £21 million was to be spent on this project. My reading of it was that £6 million of that will come from the lottery and £6 million from the operators of the new boats. Will she say from where the balance of £9 million will come?
Baroness Hayman: My Lords, I think that I should look at the component parts of this: £6.8 million of Millennium Commission grant has matched funding. That relates obviously to the infrastructure, the refurbishment of two piers and the building of two new ones. I cannot for the moment account for the missing £5 million. I assure the noble Lord that I shall find out.

International Peace Police: Proposal
3.16 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they will examine the possibility that the time is ripe for the establishment of an international peace police under the jurisdiction of the United Nations with duties to include the verification and
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enforcement of the conventions banning chemical and biological weapons and the observance of agreements relating to nuclear and other weapons of mass destruction.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the Government see no need for a police force of that nature under the jurisdiction of the United Nations. The verification of compliance with existing treaties and conventions on weapons of mass destruction should be carried out in accordance with the provisions contained in the relevant treaty or convention.
Lord Jenkins of Putney: My Lords, will my noble friend bear in mind what the situation would be in any country—for example, this one—if there were no police force to ensure that the law is observed as a matter of course, and nothing between the population as a whole and the military? So long as the present position remains, and enforcement is exclusively the task of the military, is not the danger always present—as has been seen recently in the Gulf—of a war developing, possibly even ending in a third world war? What are the methods to which she referred just now which are currently in place?
Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government believe that it is difficult to see how such a peace police will be set up. It is hard to see what its remit would be, and reaching agreement on the issues would be difficult and consuming of time and effort. The Chemical Weapons Convention is administered by the Organisation for the Prohibition of Chemical Weapons in the Hague; the Biological Weapons Convention is administered by review conferences of the states parties which take place every four or five years. The Chemical Weapons Convention is bound by inspectors who go into various countries. We are not happy with the inspections under the Biological Weapons Convention, which is why the UK is using the presidency to try to ensure that verification procedures on biological weapons comparable to those for chemical weapons are in place.
Lord Garel-Jones: My Lords, does the Minister agree that the Question asked by the noble Lord, Lord Jenkins, seems to fit neatly within the ethical framework that the Foreign Secretary has set out for British foreign policy? On that subject, will she inform the House what are the improvements that the Government have detected in the human rights record of China that have led them not to support the UN resolution on human rights in China this year as their predecessors did?
Baroness Symons of Vernham Dean: My Lords, I do not believe that Her Majesty's Government will take lessons from anyone over questions of ethics. The best approach to my noble friend's Question is to strengthen the existing regimes in order to fill in the gaps, as I indicated we are seeking to do in our presidency.

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As regards China, the noble Lord really must read his Hansard. The other evening I was able to tell his noble friend Lord Moynihan of eight separate improvements which have been made in China since October last year when we began the dialogue process.
Lord Wallace of Saltaire: My Lords, perhaps we may return closer to the Question. Will the Minister accept that there are severe problems in obtaining properly qualified inspectors to search for biological and chemical weapons? The experience of Iraq shows that too many inspectors came from too few countries. Do the Government have any plans to assist other countries in training inspectors for such international duties in order to spread the burden more widely?
Baroness Symons of Vernham Dean: My Lords. I do not accept that too few nationalities were involved in the inspections in Iraq. Of the 44 inspectors who were regularly used to inspect sites in Iraq, 17—I repeat, 17—different nations were represented.
Lord Archer of Sandwell: My Lords, is not national sovereignty becoming bad for our health? Has my noble friend noticed the next Question on the Order Paper? As with every year which passes there is fresh evidence that nuclear and biological weapons are falling into irresponsible hands, is it not now urgent that we should work for a global convention making them unlawful in any hands and committing the whole international community to enforcing that?
Baroness Symons of Vernham Dean: My Lords, my noble and learned friend will not be surprised to know that I have indeed noticed the next Question on the Order Paper as it is for me to answer!
The United Kingdom Government believe in universal adherence to and compliance with both the Chemical Weapons Convention and the Biological and Toxin Weapons Convention. As I said, we have detected shortcomings in the second convention, which is why we are eagerly pursuing improvements to it. As to the longer term, suggestions about examining these issues will be considered appropriately by Her Majesty's Government.
Lord Chalfont: My Lords, will the Minister accept that some of us are puzzled by the Question? If such an international peace force is to be armed, it would be a new procedure and departure which would place armed forces under the direct jurisdiction of the United Nations. If the force is not to be armed, is there anything that it can do that is not already done through the sanctions of the Security Council, the administration of the various treaties and, more importantly, the activities of the International Atomic Energy Agency in Vienna?
Baroness Symons of Vernham Dean: My Lords, as I said to my noble friend Lord Jenkins, Her Majesty's Government find it difficult to see the argument to institute the kind of peace police which he suggests. The idea of such a force to verify compliance with international treaties and conventions has not, so far as
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we know, ever been raised through the United Nations. As the noble Lord, Lord Chalfont, indicated, we do not believe that it would be practical. We believe that it would duplicate arrangements under existing weapons of mass destruction treaties and for that reason we are unable to support my noble friend's suggestion.
Lord Burnham: My Lords, can the Government see any advantage in controlling chemical and biological weapons in those countries which are susceptible to control and doing nothing in those countries which are not susceptible to control?
Baroness Symons of Vernham Dean: My Lords, the difficulty is that it is only possible for us to have inspections in the countries which have already signed in particular the Chemical Weapons Convention. The noble Lord is right in saying that all our efforts should be bent upon encouraging other countries to sign up to the Chemical Weapons Convention, which we believe is a fairly solid convention with good verification procedures. However, we need to strengthen the Biological and Toxin Weapons Convention and then to encourage all countries to sign up to it.

Iraq: Weapons Exports
3.24 p.m.
Baroness Cox Baroness Cox asked Her Majesty's Government:
What is their response to reports that Saddam Hussein has exported chemical and biological weapons, and experts and materials for the establishment of plants for the manufacture of such weapons, to foreign countries, including Sudan and Libya.
Baroness Symons of Vernham Dean: My Lords, we are concerned about reports that Iraq has exported weapons of mass destruction, materials and expertise to other countries. We are monitoring the situation closely, hut to date we have no evidence to substantiate these claims. Nor has the United Nations Special Commission reported any evidence of such transfers since the Gulf War conflict and the imposition of sanctions in 1991.
Baroness Cox: My Lords, I thank the Minister for her Answer. It is encouraging to know that the Government take these reports seriously and will be monitoring the situation. As Sudan is currently subject to United Nations sanctions for its record on terrorism and human rights, will the Government consider raising concerns generated by recent reports, particularly that of the US Task Force on Terrorism and Unconventional Warfare, with the Security Council to discuss the possibility of some action?
Is the Minister aware of the urgency of the situation, because the government of Sudan have already used weapons of indiscriminate destruction against their own people—weapons deemed to have been made in Iraq? I have seen cluster bombs dropped on playing fields where children are playing and I fear that that

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government will not be inhibited in using any weapons at their disposal unless deterred by the international community.
Baroness Symons of Vernham Dean: My Lords, the noble Baroness asked a number of questions. Of course we view with concern any reports which allege the transfer of weapons of mass destruction. We have indeed studied the paper to which the noble Baroness referred in great detail and against all other sources. However, the noble Baroness should know that we are unable to corroborate many of the details. Moreover, we know that some of the claims made in the paper are untrue. The United States Administration have said the same. The White House response is:
"We have no credible evidence that Iraq has exported weapons of mass destruction technology to other countries since the Gulf War".
The defence intelligence staff in the MoD have similarly written a critique which does not support the report's findings. But of course this is an issue on which we should be extremely vigilant.
Lord Avebury: My Lords, will the Minister confirm that UNSCOM has the power to investigate collaboration between Iraq and other states in the development of prohibited weapons and in the transfer of technological capacity from Iraq to those states? Will the Government therefore consider requesting Mr. Richard Butler to carry out a thorough study of all the allegations which have been made and to report back to the Security Council as soon as possible?
Baroness Symons of Vernham Dean: My Lords, the remit of UNSCOM is specific to Iraq. That begs two questions. First, it begs the question of whether Iraq has exported weapons of mass destruction. Secondly, it begs the question about whether there are weapons of mass destruction in other countries in the area.
Iraq has admitted to a number of joint ventures with other countries in the missile area prior to the Gulf War. However, UNSCOM has not reported any evidence of the transfer of technology, materials or know-how since then and since sanctions were imposed. However, it is worth remembering that Iraq sought to shelter war planes in Iran during the Gulf War. None of those planes was subsequently returned. Whether in the light of that experience Iraq would want to risk losing a major part of its weapons of mass destruction arsenal by entrusting it to a neighbour is a pretty moot point.
Lord Randall of St. Budeaux: My Lords, does my noble friend agree that Saddam Hussein's military strategy of delivering weapons of mass destruction is a serious threat to the American strategy, which is based on sheer size and high technology? Does she further agree that it is most important for Britain now to work in close partnership with our American colleagues to ensure that we can fend off this evil dictator in the best way possible?
Baroness Symons of Vernham Dean: My Lords, I am sure the whole House will agree with what the noble Lord said about the evil and destructive force of weapons of mass destruction.
Lord Beloff: My Lords, the Minister has accepted the evidence of my noble friend Lady Cox that weapons of mass destruction have been used by the Sudanese Government against sections of their own people. If they were not provided by Iraq, are we to understand that the Minister believes that the Sudan itself is capable of the manufacture and delivery of such weapons, in which case we have another major threat to think about?
Baroness Symons of Vernham Dean: My Lords, Sudan has chemical plants as part of its industrial infrastructure which could be used to produce weapons of mass destruction. But we have no evidence from any source to corroborate claims that Sudan has attempted to acquire, either indigenously or through procurement, any form of weapons of mass destruction.
Baroness Park of Monmouth: My Lords, will the Minister accept at the very least that there is a mass of substantial allegations of a regular supply of Iraqi chemical and biological weapons and know-how to the Sudan with, incidentally, the co-operation of Iran, which is an extremely anxious issue? Will the Minister accept that that is a threat to all the African nations bordering on the Sudan, given the fact that the Khartoum Government have already threatened the Ugandans with a chemical attack?
Baroness Symons of Vernham Dean: My Lords, Iraq had admitted to concealment mechanisms which UNSCOM is continuing to investigate. We do not rule out the possibility that the gaps in Iraq's disclosure may indeed be attributable to the transfer out of Iraq of weapons with a mass destruction capability. However, I have told your Lordships' House that, while that is a possibility of which Her Majesty's Government are fully aware, we do not have credible evidence to support that view.
If I were to provide further details, I am afraid that I should have to draw on material collected by the intelligence agencies. Of course, it has been the practice of successive governments not to comment on that.

Mis-sold Personal Pensions: Compensation
3.32 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
What steps they are taking to accelerate the programme of compensation to victims of the mis-selling of personal pensions, and to prevent any mis-selling of the proposed stakeholder pension.
Lord McIntosh of Haringey: My Lords, the Financial Services Authority is taking action to ensure

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that everyone who has been mis-sold a personal pension since the Financial Services Act came into force will have access to a review which will determine whether they have suffered a redressable loss.
Last week my honourable friend the Economic Secretary answered a question in another place giving data on the progress made by the 41 firms with most cases to review. The figures show that some 65 per cent. of all priority cases have now been dealt with.
The Economic Secretary also gave her support to the FSA's approach to dealing with the remaining cases, which are grouped into Phase 2 of this exercise. All cases must be fairly and quickly dealt with.
Baroness Castle of Blackburn: I congratulate the Government on the efficiency and energy with which the Economic Secretary has pursued this matter. Does the Minister agree with me that it is very alarming to read the situation in Phase 2 which is outlined in the Financial Services Authority's recent statement? That shows that something like 1.8 million smaller investors may have suffered detriment to the tune of some £6.5 billion. Therefore would he not agree that that scandalous situation shows that the profit-making private pension insurance companies are not to be trusted to provide the same security in retirement as the state insurance schemes? What steps are the Government taking to prevent the proposed stakeholder pension falling into their hands?
Lord McIntosh of Haringey: My Lords, the Economic Secretary will be very grateful for my noble friend's first remarks. As regards the second phase, my noble friend quotes the figures quite correctly. Of course, the second phase is not concerned with smaller investors but with younger investors—those who have more than 15 years to go before retirement. Priority was rightly given to those closer to retirement in Phase 1 of the investigation.
As regards avoiding that problem in the future, my noble friend's remarks will of course be taken into account. We are determined that the stakeholder pension should not suffer from the same mis-selling problem.
Lord Mackay of Ardbrecknish: My Lords, does the Minister realise that I very much agree with him on the question of mis-selling? I hope it will be put right because it has greatly damaged the legitimate private personal pension interests which many people in this country will need to have if they are to have pension provision in their old age. Does the Minister recall that I had exactly the same problem when I had to put through the Pensions Act because of the behaviour of Mr. Robert Maxwell, who was, I think, an ex-colleague of the noble Baroness, Lady Castle?
Does the Minister, like me, find it rather odd that the Economic Secretary should be the person who is throwing stones on the issue of mis-selling private pensions when she had such a close relationship with Mr. Robert Maxwell in her previous existence?
Lord McIntosh of Haringey: My Lords, the noble Lord has managed to make two "McCarthyite" accusations of guilt by association in the course of one short question. I congratulate him.
Earl Russell: My Lords, in considering measures to prevent that happening again, will the Government look again at the proposals of the Goode Report? Will they ensure also that trustees of occupational pension schemes representing the employees and pensioners cannot in future be removed by the employer?
Lord McIntosh of Haringey: My Lords, of course those matters will be considered in the very comprehensive review of pension provision which will start this summer. But the issue of trustees is somewhat removed from the original Question.
Baroness Castle of Blackburn: Is the Minister aware that I never had a close association with Robert Maxwell, and perhaps not as close an association as some Members opposite have had with other tycoons?

Business
3.36 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. today, my noble friend Lady Blackstone will, with the leave of the House, repeat a Statement that is to be made in another place on schools funding.
Also, subject to the progress of business, the House will rise for the Easter Recess on Thursday, 9th April, and return on Monday, 20th April. The House will sit at 11 a.m. on Thursday, 9th April.

Petroleum Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Audit Commission Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Crime and Disorder Bill [H.L.]
3.39 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
Lord Bridges Lord Bridges moved Amendment No. 80:
After Clause 26, insert the following new clause—
("Publication of telephone conversations
OFFENCE OF PUBLISHING TELEPHONE CONVERSATIONS
.—(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) Subsection (1) shall not apply in a case where—

(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;

(b) one of the parties to the conversation is a journalist and the conversation was undertaken as part of his professional investigations;

(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—

(i) the employee has been made aware in writing of this procedure, and

(ii) publication is necessary for or in connection with the conduct of disciplinary proceedings;

(d) the conversation was conducted between persons acting on behalf of a firm and one of its clients and the recording was undertaken to provide evidence of a commercial transaction; or

(e) it can he shown that publication of the conversation is in the public interest.

(3) A person found guilty of an offence under subsection (1) shall be liable—

(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;

(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: My Lords, in moving this amendment, which stands in my name and that of my noble friend Lord Monson. I should explain that this is a substantially revised version of the amendment which I moved in Committee, but that it retains the same objective: namely, the creation of a new criminal offence, the publication of the transcript of a clandestinely monitored telephone conversation. It is already illegal to make such interceptions, save under a warrant issued by the Secretary of State in carefully defined circumstances, but it is not at present illegal to publish the transcript. Thus, the amendment is designed to close a loophole in existing legislation.
Replying to the debate on 13th February, the noble Lord, Lord Williams of Mostyn, said that my proposal covered a wide area and gave rise to a number of matters which the Government were already considering in the context of EC Directive No. 97/66/EC of 15th December 1997 and that he thought it would be premature for me to press my amendment, which he invited me to withdraw meanwhile. I agreed to do this and said that I would study the directive, reserving the right to present it again on Report, which I now do in revised form.
There is no conflict between this amendment and the EC directive; rather the two texts are complementary and mutually supportive. In particular,
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Article 5 of the directive states the intention to safeguard the privacy and confidentiality of telecommunications, which is also my main objective. There is a similar provision in Article 8 of the European human rights convention. The problem that the Government have with the directive is that it covers all telecommunications, whereas our own law, the Interception of Telecommunications Act 1985, is less extensive in its coverage, applying only to telecommunications which pass through the public networks. Privatisation and the advance of technology mean that a substantial sector is thus left uncovered. Therefore, amendment of the 1985 Act will he required before we can implement the directive, and we know that a review of that Act is already in progress.
Meanwhile, the Government have exercised their right to derogate from implementation of the directive until October 2000, in respect of Article 5, as is permitted by the text of the directive. I cite these matters simply to illustrate that I can see no impediment in the directive to the passage of my amendment, as I rather think the noble Lord, Lord Williams, implied when he spoke on the earlier occasion. That was, I suggest, something of a red herring, although I understand his wish not to complicate other matters which require consideration as a result of the directive. However, I submit that my amendment would not be in conflict with the directive. Nevertheless, I am grateful to the noble Lord, Lord Williams, for drawing my attention to the directive, and more particularly for his kindness in arranging a meeting at the Home Office on Monday morning when we were able to discuss the question in more detail. As a result, I have endeavoured to meet the objections and difficulties mentioned at that meeting in the substantially revised version of the amendment which is before the House today. I shall speak as briefly as I can to those changes.
Subsection (2)(b) of my earlier draft contained a provision that if a journalist wished to question a person in public life about some alleged malpractice, and for the greater accuracy of his report wanted to record the conversation, he should first make known his intention. The noble Lord, Lord Williams, told me that he thought that provision would hinder legitimate investigative journalism, as the person approached would surely terminate the conversation abruptly if he heard that a recording was to be made. To meet this objection, which does have some force, I have much shortened the subsection so as to remove the proviso regarding recording altogether: the exemption now covers all conversations by journalists. I hope that the noble Lord, Lord Williams, will find this satisfactory. I am not particularly happy with a law which places journalists in a privileged position in relation to other citizens, but I cannot think of another way of meeting the noble Lord's objection.
For the greater certainty of knowledge, I should add that there is a clause in the voluntary code of practice, number 8, which covers the matter. It says:
"Journalists must not obtain or publish material obtained by using clandestine listening devices or by intercepting private telephone conversations".
In parenthesis, I do not suppose that that clause need necessarily apply to transcripts of on-the-record telephone conversations, although that is not made clear in the code. My intention is to give legal effect to clause 8 of the code, which I have just quoted. Indeed, the code, my amendment and the EC directive share a common objective. If we agree to adopt the amendment, we shall be able to transpose that passage of the code into statute law and to facilitate implementation of the EC directive at the same time.
Some noble Lords may feel that matters are better left as they are, on the basis of a voluntary code. Indeed, the noble Lord, Lord Wakeham, spoke eloquently on those lines in a recent debate. I should add that I informed the noble Lord yesterday of my intention to refer to his intervention this afternoon. However, I do not see that as being the route we ought to follow. I say that because an editor may more readily overlook the effect of a code, which he can always argue about at length afterwards; but he cannot so readily ignore the force of the law.
As I suggested in my earlier speech, this is an area where temptations are strong, where technology is constantly advancing and making interceptions easier. I submit that safeguards are needed to strengthen the resolve to remove malpractice as far as possible. After all, we are talking about a fundamental matter; namely, the right of the citizen to enjoy privacy of personal communication. We should be proud of that right and exert ourselves to protect it. I doubt whether that right would be fully protected by the code, which does not, I think, enjoy the confidence placed by the public in statute law.
There are some other changes which I shall mention more briefly. Subsection (2)(c) is followed by a new paragraph (d) to make it clear that records of telephone conversations in a City dealing room may, if necessary, be used to verify details of a particular financial transaction. It was my intention that that should be covered by way of the original wording, but the matter is now set out more clearly in this version of the amendment.
A final change is the omission of the former subsection (2)(d), which was designed to authorise the Director of Public Prosecutions to make use of these recordings in criminal proceedings if he thought it desirable. It has been pointed out to me that this practice is precluded by the terms of the Interception of Communications Act 1985, so I have excised it from the amendment. No doubt the matter can be examined in more detail in the review of that Act which is now in progress. Indeed, there may perhaps be a case for lifting the total ban in certain cases so as to make use of intercepted material in particularly serious criminal cases.
I hope that the amendment in its revised form will be acceptable to the Government. The only aspect mentioned by the noble Lord, Lord Williams, which I have not attempted to cover relates to the doubts that he expressed
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about the word "publishes", which is to be found in line I of my amendment. As I understand it, in legal terminology this word has far-reaching effect, meaning:
"Communication to another, or others, by whatever means".
However, I hope that noble Lords will not be put off course by worries of that kind. What I am seeking to outlaw in this amendment is the violation of the principle of privacy of communication, which is a fundamental right.
Not having a written constitution, we have to take specific steps of this kind to achieve an objective which most other countries enjoy in a basic constitutional document. The principle already features prominently in international texts, some of which I have mentioned. We need this provision in our domestic law. It must he an anomaly that it is illegal to make a clandestine recording of a telephone conversation, but legal to publish it. That is the situation at present.
I am not interested in regulation of the press, nor do I favour it; but I am interested in the rights of the citizen. However, to meet any possible objection on that score, I have included a new subsection (2)(e) which would permit publication when it can be shown to be in the public interest. Thus, it would be for the courts of this country to determine whether or not an editor's decision to publish an illegal document was justified in the public interest.
I have gone a long way to meet the difficulties expressed to me by Ministers. I hope that this revised version will allay the problems which they foresaw. Should the Government still dislike it—the noble Lord, Lord McIntosh of Haringey, indicated to me that he thought it unlikely the Government could accept the amendment—I can conclude only that they wish to avoid the risk of ruffling feathers in Fleet Street, Wapping and other places of that kind. If that is their calculation, I put it to them that they will not be able to rely on goodwill from that quarter. I put it to the House that the sounder judgment is to regard this as a matter of principle, as I have tried to express it this afternoon. I hope that noble Lords from all sides of the House will take that view and join me in the Lobby if that proves necessary. I beg to move.
Lord Monson: My Lords, with his usual skill my noble friend Lord Bridges has taken what was already a worthwhile and desirable Committee stage amendment and made it even better. I am happy to support it. I am only sorry that more noble Lords did not add their names to it given that surely almost all of us in the Chamber must support its basic objectives. As I said in Committee, a generation or so ago those who eavesdropped, peered through keyholes or steamed open and read other people's letters were considered beyond the pale. Anyone who profited financially from such reprehensible activities was considered the lowest form of human life. Sadly the old decencies are vanishing which is why we need an amendment such as this, even though it covers only one aspect of invasion of privacy. I hope your Lordships will support it.
Lord Renton: My Lords, although we should always be reluctant to create new criminal offences I consider

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that the noble Lord, Lord Bridges, made out a strong case for this one. Surely, confidentiality of telephone conversations is essential for various reasons—I put family reasons first—including various professional reasons. For example, a doctor having already examined a patient may feel it necessary to telephone him instead of visiting him. Surely that telephone conversation should be confidential. I should have thought that in the legal profession it is highly desirable that conversations between solicitor and client should be protected in this way, and sometimes—this does not often happen because barristers act through solicitors—even conversations that barristers may have either with solicitors or even occasionally with a lay client deserve confidentiality. I am not a businessman but there are eminent businessmen on your Lordships' Benches. There must be many occasions when it is in the public interest as well as the private interest that business conversations should be protected. There is no other way that I know of protecting them. Lest anyone thinks that we are going too far in applying the principle of protecting privacy, I would say that this is a limited step in that direction but a highly necessary one.
Lord Henley: My Lords, I start by welcoming the noble Lord, Lord McIntosh, to deliberations on the Crime and Disorder Bill as I gather he is to respond to this amendment. We see him for the first time on what I now reckon to be the eighth day of the passage of this Bill through the House. I hope that he enjoys the experience in part.
I did not speak on this amendment in Committee but I listened carefully to what the noble Lord, Lord Bridges, said on that occasion and I certainly studied with some care the response of the noble Lord, Lord Williams of Mostyn, for the Government. I have considerable sympathy with the ideas behind the amendment. Like my noble friend Lord Renton and the noble Lord, Lord Monson, I am totally opposed to the idea that secretly recorded telephone conversations should be published by the newspapers or other outlets. I believe that people have a right to confidentiality. I think that most people are agreed on that. I am sure that the Government will also be the first to say that they too agree that in the main such conversations should not be published.
However, as the Government explained on the third or fourth day in Committee, this matter will, I understand, be partially dealt with by, I believe, the 1995 data protection directive and also by the Data Protection Bill currently proceeding through this House. There are difficult matters here which relate on one side to questions of privacy and on the other to matters concerning both public interest and press freedom. At this stage I want to listen carefully to the Government's response on how they see these matters being dealt with by the directive and by the Data Protection Act when it finally reaches the statute book. I hope that they can give convincing reasons as to why an amendment of this kind is not the appropriate way forward. I shall listen carefully to what the Government have to say before making up my mind on how I wish to proceed, and how
826
those on these Benches who take advice from me wish to proceed, once the noble Lord, Lord Bridges, has decided what to do about his amendment.
Lord McIntosh of Haringey: My Lords, I start by expressing my gratitude to the noble Lord, Lord Bridges, for coming to the Home Office early on Monday morning to discuss the matter with my noble friend Lord Williams and myself, and for the care that he has taken in his revision of the amendment to take account of some of the things we pointed out to him at that time. I assure him that we listened carefully to what he had to say too. As I have already indicated to him informally that we shall not be able to accept the amendment, I hope the House will forgive me if I give my reasons in some detail.
The core of the amendment is contained in the proposed new subsection (2) and in the provisions for exceptions to the offence of publishing or causing to be published a telephone conversation. The proposed new subsection (2)(a) refers to contravention of the Interception of Communications Act 1985. This is technically deficient because there is currently no offence of recording a conversation made over a public telecommunications system provided one or more parties consents to the recordings, under Section 1(2)(b) of the Interception of Communications Act. There is no offence at all as regards recording on a private network.
The proposed new subsection (2)(b) refers to a situation where one of the parties is a journalist and the conversation is part of his investigations. The noble Lord reminded us that his Committee stage version of the amendment would have required the journalist to make clear to his interlocutor that the conversation was being recorded or conducted with a view to publication. We pointed out that that would make investigative journalism virtually impossible. The noble Lord recognised that point. This version is a step towards protecting investigative journalism but it does not protect a journalist who is listening in to a conversation between two other parties without their knowledge or consent and who would not be caught by the industry code of practice provided he could show that he was acting in the public interest.
The proposed new subsection (2)(c) refers to conversations recorded by an employer of one of the parties,
"as part of a routine procedure for recording telephone conversations within the workplace".
Anyone who listens to commercial radio and the advertising of financial services on it will know that it is a common occurrence for someone to say that conversations may be recorded for the protection of the public. The provision in this subsection goes further than the EC telecoms data protection directive which allows legally authorised recording of communications in the course of lawful business practice for the purpose of providing evidence of a commercial transaction or of any other business communication. The amendment would prohibit an employer using recorded material as evidence of a commercial transaction. I remind the House that court proceedings would constitute publication.

827
The fourth part of subsection (2) refers to when the conversation is between a firm and its clients and the recording is made to provide evidence of a commercial transaction. It replaces paragraph (d) which was contrary to Section 9 of the Interception of Communications Act which expressly prohibits the use of any intercept evidence gathered under an IOCA warrant in any court. No exception is made for the Director of Public Prosecutions or anyone else. The new subsection attempts to accommodate acceptable practices in the financial services sector. But since we do not have a legal framework for recording, that is undesirable.
Paragraphs (c) and (d) would not amount to implementation of the Telecoms Data Protection Directive. We would therefore have to legislate again by October 2000. We would need to establish a legal framework for the recording and publication of communications on public and private networks. This requires time for careful consideration and consultation. The proposed amendment would outlaw acceptable recording and publication practices by omission rather than intent.
I recognise, as the noble Lord, Lord Henley, recognised, that the amendment of the noble Lord, Lord Bridges, raises complex issues of privacy, public interest and press freedom. The noble Lord made it clear that his principal objective is to mark limits of acceptable press behaviour. We believe in a free press. We need to be very careful to balance properly the right to privacy with the right of freedom of expression. As we have said many times, we prefer effective self-regulation of the press to any statutory control or a law of privacy. As the noble Lord, Lord Bridges, acknowledged, his proposed amendment would be one step towards statutory control.
The newspaper industry code of practice, on the basis of which the Press Complaints Commission resolves complaints, already requires that,
"Journalists Oust not obtain or publish material obtained using clandestine listening devices or by intercepting private telephone conversations unless it can he demonstrated that this is in the public interest".
The Government are committed to self-regulation and expect the press to keep to both the letter and the spirit of the code.
As I have said, another difficulty is that the amendment cuts across our implementation of Article 5 of the EC Telecoms Data Protection Directive. As my noble friend Lord Williams said in Committee, we must implement this article by October 2000. The article requires member states to ensure via national regulation the confidentiality of communications and in particular to prohibit the listening, tapping, storage and other kinds of interception or surveillance of communications by people other than the users without the consent of the users except when legally authorised.
Accepted recording practices are not explicitly covered by UK law at present. There is no UK legislation for recording on private telephone networks. It will be necessary, as part of implementing Article 5 of the directive, to establish a framework for recording tapping of communications whether on
828
the private or public network. So we need to consult widely and to work closely with the relevant industries to ensure that we get the legislative framework right.
I believe that our approach to this is properly expressed in the light of the Data Protection Bill and the Human Rights Bill. We have to be very clear about the precise policy intended. Our fundamental objection to the amendment is that it would undermine our support for press self-regulation. I am rather sorry that the noble Lord, Lord Bridges, sought to impute motives to the Government in supporting press regulation. We are not doing so in fear of the disapproval of Fleet Street or Wapping, or in search of their support. We are doing so because we believe that that is right in a free society. The amendment would be a statutory milestone too far. I do not dismiss the concerns of the noble Lord. The Government take the matter very seriously but we do not feel that the amendment is the right way to tackle the problem. I hope that the noble Lord will not press the amendment.
Lord Bridges: My Lords, I am grateful to all those who have spoken and to the noble Lord, Lord McIntosh, for having given a considered reply. I emphasise again that I do not seek to move a step towards regulation of the press. This is a milestone to indicate an area where not just the press but no one should stray. I believe that it is necessary to do that. I regard it as a matter of principle. I am sure that the many problems which the noble Lord, Lord McIntosh, foresaw if we accept the amendment could be sorted out by careful consideration and production of a further amendment at Third Reading if the Government wish to do so.
However, this is a matter of principle for me and I seek the opinion of the House.
4.5 p.m.
On Question, Whether the said amendment (No. 80) shall be agreed to?
Their Lordships divided: Contents, 55: Not-Contents, 82.

Division No. 1

CONTENTS

Ackner, L.

Hayhoe, L.

Ailesbury, M.

Hereford, Bp.

Alexander of Tunis, E.

Hooson, L.

Alton of Liverpool, L.

Hylton, L.

Ampthill, L.

Hylton-Foster, B.

Braybrooke, L.

Lane, L.

Bridges, L. [Teller.]

Leathers, V.

Brightman, L.

Leigh, L.

Charteris of Amisfield, L.

Macleod of Borve, B.

Chorley, L.

Marlesford, L.

Craigavon, V.

Milverton, L.

Dearing, L.

Monckton of Brenchley, V

Dowding, L.

Monson, L. [Teller.]

Ellenborough, L.

Montagu of Beaulieu, L.

Exmouth, V.

Moyne, L.

Gardner of Parkes, B.

Nathan, L.

Haddington, E.

Northbourne, L.

Halsbury, E.

O'Cathain, B.

829

Palmer, L.

Strathcarron, L.

Park of Monmouth, B.

Strathcona and Mount Royal, L.

Perry of Southwark, B.

Swansea, L.

Rees, L.

Swinfen, L.

Tenby, V.

Renton, L.

Walpole, L.

Roll of Ipsden, L.

Walton of Detchant, L.

St. John of Bletso, L.

Warnock, B.

Saltoun of Abernethy, Ly.

Wharton, B.

Sandwich, E.

Wilberforce, L.

NOT-CONTENTS

Acton, L.

Hunt of Kings Heath, L.

Allen of Abbeydale, L.

Irvine of Lairg, L. [Lord Chancellor.]

Archer of Sandwell, L.

Barnett, L.

Jay of Paddington, B.

Bassam of Brighton, L.

Jenkins of Putney, L.

Blackstone, B.

Judd, L.

Borrie, L.

Kennedy of The Shaws, B.

Brooke of Alverthorpe, L.

Kennet, L.

Bruce of Donington, L.

Kilbracken, L.

Burlison, L.

Lockwood, B.

Carmichael of Kelvingrove, L.

Longford, E.

Carter, L. [Teller.]

McCarthy, L.

Castle of Blackburn, B.

McIntosh of Haringey, L. [Teller.]

Cledwyn of Penrhos, L.

Clinton-Davis, L.

Mallalieu, B.

Cocks of Hartcliffe, L.

Merlyn-Rees, L.

David, B.

Milner of Leeds, L.

Davies of Oldham, L.

Molloy, L.

Donoughue, L.

Monkswell, L.

Dormand of Easington, L.

Montague of Oxford, L.

Dubs, L.

Nelson, E.

Eatwell, L.

Peston, L.

Elis-Thomas, L.

Plant of Highfield, L.

Evans of Parkside, L.

Ponsonby of Shulbrede, L.

Falconer of Thoroton, L.

Prys-Davies, L.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Gallacher, L.

Randall of St. Budeaux, L.

Gladwin of Clee, L.

Rea, L.

Gould of Potternewton, B.

Rendell of Babergh, B.

Graham of Edmonton, L.

Richard, L. [Lord Privy Seal.]

Grenfell, L.

Simon, V.

Hardie, L.

Stallard, L.

Hardy of Wath, L.

Strabolgi, L.

Haskel, L.

Symons of Vernham Dean, B.

Hayman, B.

Thomas of Macclesfield, L.

Henderson of Brompton, L.

Turner of Camden, B.

Hilton of Eggardon, B.

Watson of Invergowrie, L.

Hollis of Heigham, B.

Wedderburn of Charlton, L.

Howie of Troon, L.

Whitty, L.

Hoyle, L.

Williams of Elvel, L.

Hughes, L.

Williams of Mostyn, L.

Hughes of Woodside, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 27 [Abolition of rebuttable presumption that a child is doli incapax]:
4.14 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 81:
Page 22, line 3, at end insert—
("() Where a child aged 10 or over is accused of an offence, it shall he a defence for him to show on the balance of probabilities that he did not know his action was seriously wrong.").
The noble Lord said: My Lords, in the absence of my noble friend Lord McNally, who is unwell, I rise to move this amendment.
On this occasion we return to the subject of doli incapax, or, as Clause 27 of the Bill slightly more comprehensively puts it,
"The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence".
I accept, as do my noble friends on these Benches, that the present rule is, as it stands, unjustified. It should not be necessary for the prosecution to have to prove as part of its case that a 13 year-old child, who may by that time be a professional burglar, as some are, knows that breaking into someone else's house and stealing cash and jewellery is wrong. However, we seek not to abolish the rule, but to modify it.
Children develop a concept of right and wrong very early. You learn at a very young age that it is wrong to throw your porridge on the floor if you do not want to eat it. You learn that it is wrong to grab your little sister's favourite toy and make her cry. But what does not come until much later is the concept of criminality; namely, the difference between doing things which are naughty and for which you will be punished (it is to be hoped) by a parent, and doing things which are seriously wrong and liable to punishment by a court. I certainly do not believe that all children understand the concept of criminality by the age of 10.
By current international standards, 10 is a very low age for criminal responsibility. Most other European countries have an age of criminal responsibility of at least, at the lowest, 12; and of the significant European countries, ignoring one or two mini-states such as Malta, only the United Kingdom, the Netherlands and Switzerland have an age of responsibility of less than 12. I am of course aware that the age of responsibility in Scotland is eight, which is not something of which I approve. However, I also recognise that Scotland has the highly respected system of children's panels, which draws some of the sting from a very low age of criminal responsibility.
If we are to retain an age of criminal responsibility as low as 10, what is needed is an intermediate stage. We should not jump straight from no criminal responsibility at the age of nine to full responsibility at the age of 10. We need to protect 10 or 11 year-olds who do not understand that what they are doing is seriously wrong. We should do so by allowing the defence to raise and prove, on the balance of probabilities, that the child in question did not have the capacity to understand that what he or she was doing was seriously wrong.
In Committee, the noble Lord, Lord Williams of Mostyn, opposed this amendment because, as he said,
"we need to deal with intervention, rehabilitation and beginning to assist the child".—[Official Report, 12/2/98; col. 1324.]
But if the defence of lack of understanding succeeds, it does not, and should not, mean that the child walks out of the court and nothing is done about its behaviour. What it should mean is that the child should be dealt with by a care order or a supervision order made by a family proceedings court, and that that child should not be treated as a criminal. The noble Lord also said that the more warped the child's moral standards, the easier it would be to raise the defence of lack of capacity,

831
quoting from the noble and learned Lord, Lord Ackner, who was himself quoting from an article written many years ago by Professor Glanville Williams.
However, I do not believe that that is the case. A child with warped moral standards is likely to come from a family which is itself in trouble with the law. Whatever its understanding of right and wrong, it is certain that a child with that background is likely to understand the concept of criminality earlier than most children. The child this amendment seeks to protect is not the child with warped moral standards; it is the slow child, the silly child, the child who tags along with older children on what he thinks is a prank but what is in fact something much more serious. It is for that reason that I believe this amendment would improve the Bill as regards the protection of children of 10 and 11 years old who will not be adequately protected if the existing law of doli incapax is removed and nothing put in its place. I beg to move.
Baroness Mallalieu: My Lords, I support the amendment moved by the noble Lord, Lord Goodhart, and hope that the Minister will not lightly dismiss the concerns of many who practise at the criminal bar about the abolition of this rule. I believe that most people accept that the application of the rule is unsatisfactory and has in the past led to youngsters who should have been prosecuted not being prosecuted. We all accept that reform is necessary, but the present rule provides a safeguard. I am concerned that if all we do is to abolish it we shall, in a classic manner, be throwing out the baby with the bath water.
The present rule works as a safeguard against the conviction of a child who genuinely does not know that what he or she has done is seriously wrong. It offends me—and, I suspect, other noble Lords—that someone in that position should be the subject of a criminal conviction in our courts, particularly given the age with which we are concerned of up to 13.
The present rule works as a safeguard in two ways. First, when the prosecuting authorities have to decide whether or not to proceed, someone has to look at the evidence and consider whether the child did or did not have the necessary knowledge and whether that could be proved by the Crown. If it is decided that there is evidence and the case goes ahead, there is a second stage at which the safeguard applies during the trial when the defence can raise the issue, call evidence and obtain a "not guilty" verdict if the Crown are unable to establish that the child did know. To abolish that rule without any replacement would seem to me to remove all safeguards. I should be grateful if the Minister will tell us what safeguards there will be if he does not accept the amendment.
The amendment leaves a means by which the defence, if they are able to put convincing evidence before the court, can ensure that such a conviction does not take place. Not all defendants, particularly those in the age bracket of 10 to 13, are streetwise, educated young
832
criminals. A wide variety of people come before our courts. It is sometimes said—perhaps not seriously, but one has only to look at the list outside the Old Bailey to see how true it is—that a court list consists of a judge with an English name trying people with foreign names. It is not just people who are slow-witted or backward at that age; our courts are, unhappily, also full of people who have been in this country for a very limited time. For example, in the past year or so I am aware of a case where a child from Somalia, who had recently come here as a refugee, had known nothing but civil war and had received no formal education, was tried for rape. There are also cases of youngsters who have recently come from the backstreets of Kingston, Jamaica, who find themselves before our courts. Those children cannot be judged by the standards of a child who has been through our English education system and grown up in our society.
I hope the Minister will accept that the conviction of a child who genuinely does not know that his actions are wrong cannot be morally justified. I know that he is sympathetic on all matters concerned with juvenile offenders and that his aim would be to ensure that someone in this position received assistance. I hope that if this rule is to go, as is intended by this legislation, and nothing is to replace it, we can at the very least be assured that those in the Crown Prosecution Service who decide whether or not to bring these prosecutions will continue to look rigorously at every case involving a child of this age to see whether it is really in the interests of justice that the full procedure of the criminal law should apply.
Lord Campbell of Alloway: My Lords, I speak with deference and considerable respect, but on this occasion I do not believe that the noble Baroness, Lady Mallalieu, has got it quite right. The noble Baroness has vast experience in this sphere. In this day and age this presumption makes no sense when squared against the annals of the kinds of serious criminal conduct committed by those who are of the age where the presumption applies. The concern, as put by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Goodhart, is understood: if the child did not know that what he was doing was seriously wrong, he ought not to stand trial. However, I am not sure that that is the right way of dealing with this issue. I shall be interested to hear what the noble Lord, Lord Williams of Mostyn, has to say about it.
The reason I am not sure is that most crimes involve a relevant element of intention which has to be proved by the Crown beyond all reasonable doubt. If for some reason—and some examples have been given—the child really did not know that what he was doing was seriously wrong, it is open to the court or the jury to conclude that he had not, beyond all reasonable doubt, that intention. Even if it is shown that the child had that intention, the circumstances, the fact that it is a child and all other factors will be taken into account in mitigation. Courts are very reluctant to deal harshly with children.

833
It seems to me that the clause as it stands is a sensible and brave contribution relevant to the needs of reducing crime committed by these very people, often in gangs and with severe ruthlessness. As presently advised, I shall oppose the amendment, but I shall be interested to hear the reply.
Lord Northbourne: My Lords, I too am inclined to oppose the amendment and to argue with the noble Baroness, Lady Mallalieu. If a child of 10 or 11 really does not know that a serious offence is wrong, it is important that that child should learn that it is wrong. To unconditionally discharge the child will not help him. It is much better that the courts should take the necessary action to ensure that the child is taken into care or given some other help so that he can learn that what he has done is wrong before he commits a more serious offence. For example, in the case of taking away and driving a car, the child should know that it is wrong before he does it again and kills someone.
Lord Judd: My Lords, like others, I need no convincing that my noble friend the Minister is on the side of enlightenment, compassion and concern in the administration of justice. He must therefore find this part of the Bill very difficult to defend.
This issue is a good illustration of the way in which law is often drafted by decent, responsible people who have had the benefit of a good education and a good family background and cannot conceive of the reality of the background from which some of the people who end up in court have come. As a constituency Member of the other place—which I was for 13 years—in the course of my casework I repeatedly came up against the most disturbing and horrific family situations in which it would have been quite amazing if a young person had reached the age of 10, 11, 12 or 13 with any clear sense of what was right and wrong. It is in that sense that the noble Lord, Lord Goodhart, is standing for decency in the law in saying that we must accept and face that reality and make sure that the position of young people coming from such a background is properly defended.
The other observation which I must make in this context—some of those who share my anxieties about this part of the Bill may not endorse my argument—is that there is a deeper issue which concerns me in regard to this part of the Bill. In the context of a rather materialistic society, I hope that we are not moving into an over-punitive approach towards the administration of justice. It seems to me that the biggest challenge—we will no doubt return to this argument on other elements of the Bill—in the administration of justice is always rehabilitation; that is, how we win the offender back to full constructive citizenship. That should be our primary concern in a civilised society.
What worries me is not what the intention was in the drafting of the Bill, but that the effect of this part of it plays to a social attitude which wants to pile all the blame onto the shoulders of the young child who is in court; that it fails to accept the collective social responsibility for the situation in which the child finds itself. The child may come from an environment of
834
appalling schools, appalling housing; media which plays to sensationalism and violence and parents who had no chance to develop their sense of responsible parenthood in their education, upbringing and environment.
If one takes into account all those wider challenges of the reality of the age in which we are living, this part of the Bill is not right. I hope therefore that the Minister—for whom I have tremendous respect, not only politically, but personally—will find a way when responding to say that, even if he cannot accept Amendment No. 81 today, he will look at the case that is being made; take it away and talk to his colleagues to see how at a later stage of the Bill he can come back and meet the genuine and widespread anxieties of this House.
4.30 p.m.
Earl Russell: My Lords, F.W. Maitland, who is perhaps still our greatest ever legal historian, once wrote an article under the title, The Early History of Malice Aforethought. But Amendment No. 81 is concerned rather with the pre-history of malice aforethought. Malice aforethought—mens rea—as far back as criminal records go, has been just about the central constituent idea of criminal responsibility. But that guilty intent is made up of several elements. It is made up of rote learning, of knowledge and imagination. One cannot necessarily assume that all parts of those constituent elements are necessarily acquired at the same moment, which is why the phrase, the "pre-history" of malice aforethought is relevant.
We can take, for example, children who pull the wings off butterflies; I have known such children among my school contemporaries. They know perfectly well that what they do is wrong in the sense that they know that mummy will be cross; but they do not have any conception at all of the sort of pain and horror that they may be creating.
The noble Lord, Lord Northbourne, said rightly that a child in that situation must be helped to learn. That is the centre of the point. But in moving the amendment my noble friend Lord Goodhart said that there is nothing about the carrying of this amendment which would in any way impede that process. Indeed, it may help it, for the full panoply of the criminal law is not necessarily the best way to help a child to learn.
I will take one single case, though it is not in any sense a criminal case, which perhaps pinpoints that mixture of fantasy and reality which these intermediate stages of childhood may involve. I am told—though I do not answer for the truth of it—that the youngest child ever to give birth was a Peruvian girl aged nine. She was offered the baby to hold and pushed it away and asked for her doll. It is that mixture of reality and fantasy which I should like to see protected by this amendment.
Lord Ackner: My Lords, one should bear in mind what a narrow subject we are dealing with. We are dealing with the question of the abolition of an out-of-date presumption and the sole question is: should the presumption be tempered so that part of it remains?

835
What is being overlooked by some is that we are not concerned with retributive punishment; that will not be applied in the cases with which we are dealing because the Children and Young Persons Act 1933, Section 44(1), provides that,
"Every court in dealing with a child or young person … shall have regard to the welfare of the child or young person".
That is why in Committee I submitted that there was wisdom in what Professor Glanville Williams said in 1954, that the presumption was out of date:
"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".
Lord Thomas of Gresford: My Lords, on re-reading what was said at Committee stage and listening to your Lordships today, it occurs to me that there is a general consensus on all sides of the House. Regardless of whether those who have spoken are for or against the amendment, everybody accepts that where a child of the ages about which we are talking has not developed a moral sense and does not appreciate that what he or she is doing is seriously wrong, then the proper way of dealing with the child is rehabilitation, redemption and so forth.
The noble and learned Lord, Lord Ackner, said that we are dealing with an out-of-date presumption. We are actually dealing with an out-of-date system for dealing with offenders of this age. If one goes to Scotland—reference has been made to the age of responsibility in Scotland being as low as eight—the Youth Panel system deals with young children in an entirely different way. It just so happens that in the Labour Government of 1966 to 1970 there was a division about the way in which young children should be treated. In Scotland the Youth Panel was implemented; in England and Wales, due to the intervention of the Magistrates' Association and the Justices' Clerks' Society which at that time made strong representations, the old system of a judicial process of proving a charge and of punishment was maintained for ourselves.
In Scotland, if a child is brought before the Youth Panel, that child will be dealt with by the justices, the magistrates and the members of the panel altogether. The child will be present, as will the parents, while the evidence is gone into; while the mitigating circumstances are discussed; while the reports are read. But, more particularly, the child is there while the members of the Youth Panel discuss among themselves and with the parents, in the presence of the child, what is the best way of bringing about redemption and rehabilitation. What we are urging from these Benches in later amendments is that we should seriously consider adopting that kind of regime in England and Wales. However, until we get there, and while we are still using the system we have at the present time, which I suggest is an out-of-date system, the amendment put forward by my noble friend has a great deal of validity.
It offends us, when we are considering the proving of a criminal offence and the punishment for that offence—which is the way in which things are framed at the
836
moment—for a child to be castigated as a criminal at the age of 10 when the premise of my noble friend's amendment is that the child does not fully appreciate or understand what it has done. Until we change the system in England and Wales, the amendment proposed by my noble friend has a great deal of validity, and I am very happy to support it.
Lord Williams of Mostyn: My Lords, there does not seem to be any disagreement that the ancient presumption is in need of reform. Therefore, the question seems to be: should it be reversed or should it be abolished? When we were deciding how best to proceed we considered whether reversal or abolition was the better course. We put it out to consultation. I respectfully remind your Lordships of what I said earlier. Of those who responded to the consultative paper Tackling Youth Crime, 111 out of the 180 who expressed a view said that abolition was appropriate.
I have listened with care to the argument. Perhaps I may respond in particular to one or two distinct aspects. The noble and learned Lord, Lord Ackner, with great respect, is quite right. We are not talking about a retributive system. I echo, again respectfully, what the noble Lord, Lord Northbourne, said. What one is looking for here is intervention which ought to be able to offer not retribution but rehabilitation, help and support. I agree entirely with the noble Lord, Lord Judd, that we must not look to an over-punitive regime. What we have done in dealing with children over the past years is to leave intervention and the opportunity for informed, structured rehabilitation far too long. One needs to make a careful distinction between, as the noble Lord, Lord Campbell of Alloway, said, intervention with a criminal prosecution and what one does if guilt is proved.
No one wants to be over-punitive of small children but one has to bear in mind that some small children do extraordinary harm. We have to bear in mind the legitimate and reasonable concerns of victims. Quite often it is notoriously, though sadly, true that the victims of young criminals are vulnerable people such as old people living alone. They are also entitled to a reasonable regard for their rights and freedoms just as one has to have a proper and tender regard for young children. We believe that we have the balance right here.
I go a little further, if I may, and repeat and adopt what the noble Lord, Lord Northbourne, said. What one wants here is early intervention; not early savage punishment but early assistance. It does a child no favours to let it drift on without knowing, particularly in a modern sophisticated society, that if it commits criminal acts there will be a sanction. It may well he a sanction by way of intervention and rehabilitation, not punishment, but that a sanction is required upon these occasions we believe is beyond doubt.
The noble Baroness, Lady Mallalieu, for whose opinions I always have great respect and regard, put the illustration of a young man from Somalia who had committed rape. There was therefore a victim of a gross offence. I have to say that in respect of that illustration I was not myself satisfied at all about the validity of her point. She asked specific questions. Your Lordships will

837
have seen that sitting next to me is the Solicitor-General, with his responsibility for the Crown Prosecution Service. I am happy to give the indication which the noble Baroness wanted.
Before a child appears in court accused of a criminal offence there will be several stages. At each stage a decision will have to be made about whether a criminal charge is appropriate. The first is the police, who will decide whether to charge or caution the child. If they decide to charge, the case will go to the Crown Prosecution Service, which will decide whether to prosecute. In making that decision—I take the noble Baroness's phrase and adopt it—of course the Crown Prosecution Service will continue to look rigorously at all the circumstances. It will, of course, decide whether there is a reasonable prospect of conviction. It will also continue to bear in mind whether or not it is in the public interest for a prosecution to be brought. The public interest, I respectfully repeat, does not limit itself only to the public interest in the welfare of a prospective defendant child. In making those decisions the Crown Prosecution Service will consider the welfare of the child because the courts are required to do so under Section 44 of the Children and Young Persons Act 1933. Those safeguards will continue, but we believe that is the proper way forward.
I also ought to tell your Lordships, as a matter of courtesy and, I hope, convenience, that the Government intend to introduce at Third Reading an amendment to the existing provisions relating to inferences which may be drawn from the refusal of a defendant to give evidence or answer questions in court. The provision applies at the moment only to those aged 14 or older. Our proposed amendment would extend the provision to all those who are over the age of criminal responsibility. That deviates from the point here but I thought it appropriate that I should mention it so that those of your Lordships who may have an interest in that area will have ample opportunity and notice.
I have listened to the submissions. I realise that there is not unanimity and that those who have anxiously held views about child welfare may come to different conclusions, as perhaps has the noble Lord, Lord Judd, on the one hand, and the noble Lord, Lord Northbourne, on the other. I hope your Lordships will think I have given due regard to the propositions that have been put, but I regret that we cannot accept the amendment. I further say to my noble friend Lord Judd that I cannot say that I will reconsider it with an open mind because we have come to our conclusion.
Lord Goodhart: My Lords, I am most grateful to all noble Lords who have spoken on this amendment and I am particularly grateful for the contributions from the other side of the House of the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Judd. I am grateful that the Minister recognises that help and not retribution is the aim when one is dealing with young children who have committed acts that in the case of an adult would clearly be criminal. The case is simply: what is the right place for that help; should it be the criminal court or the family proceedings court?
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I certainly believe that for a child who does not understand what he has done is seriously wrong, the appropriate place for that help is the family proceedings court.
I have taken note of what the noble Lord, Lord Williams, said at the end of his speech about the proposal to allow inferences to be drawn from the silence of children under the age of 14. On this occasion I shall say only that that causes me very considerable concern. But that is a matter for another time. I regard this amendment as a matter of importance and of principle and I therefore think it necessary to take the opinion of the House.
4.49 p.m.
On Question, Whether the said amendment (No. 81) shall be agreed to?
Their Lordships divided: Contents, 32; Not-Contents, 105.

Division No. 2

CONTENTS

Addington, L.

McNair, L.

Avebury, L.

Maddock, B.

Beaumont of Whitley, L.

Mar and Kellie, E.

Calverley, L.

Meston, L.

Carlisle, E.

Methuen, L.

Dholakia, L.

Newby, L.

Ezra, L.

Nicholson of Winterbourne, B.

Goodhart, L. [Teller.]

Rodgers of Quarry Bank, L.

Hamwee, B.

Roll of Ipsden, L.

Hooson, L.

Russell, E.

Hutchinson of Lullington, L.

Sainsbury, L.

Hylton, L.

Thomas of Gresford, L. [Teller.]

Kennedy of The Shaws, B.

Thomas of Walliswood, B.

Kennet, L.

Tope, L.

Linklater of Butterstone, B.

Wallace of Saltaire, L.

Ludford, B.

Wigoder, L.

NOT-CONTENTS

Ackner, L.

Dean of Thornton-le-Fylde, B.

Acton, L.

Donoughue, L.

Alexander of Tunis, E.

Dormand of Easington, L.

Alton of Liverpool, L.

Dubs, L.

Archer of Sandwell, L.

Elis-Thomas, L.

Barnett, L.

Elton, L.

Bassam of Brighton, L.

Evans of Parkside, L.

Blackstone, B.

Falconer of Thoroton, L.

Borrie, L.

Farrington of Ribbleton, B.

Brightman, L.

Gallacher, L.

Brooke of Alverthorpe, L.

Gilbert, L.

Bruce of Donington, L.

Gould of Potternewton, B.

Burlison, L.

Graham of Edmonton, L.

Burnham, L.

Halsbury, E.

Callaghan of Cardiff, L.

Hardie, L.

Campbell of Alloway, L.

Hardy of Wath, L.

Carmichael of Kelvingrove, L.

Haskel, L.

Carter, L. [Teller.]

Hayman, B.

Castle of Blackburn, B.

Henderson of Brompton, L.

Charteris of Amisfield, L.

Hollis of Heigham, B.

Chorley, L.

Howie of Troon, L.

Clanwilliam, E.

Hoyle, L.

Cledwyn of Penrhos, L.

Hughes, L.

Clinton-Davis, L.

Hughes of Woodside, L.

Cocks of Hartcliffe, L.

Hunt of Tanworth, L.

Coleridge, L.

Hylton-Foster, B.

Davidson, V.

Irvine of Lairg, L. [Lord Chancellor.]

Davies of Coity, L.

Davies of Oldham, L.

Jay of Paddington, B.

839

Jenkins of Putney, L.

Prys-Davies, L.

Kilbracken, L.

Ramsay of Cartvale, B.

Lane of Horsell, L.

Randall of St. Budeaux, L.

Lockwood, B.

Rendell of Babergh, B.

Lovell-Davis, L.

Renton, L.

McIntosh of Haringey, L. [Teller.]

Richard, L. [Lord Privy Seal]

St. John of Fawsley, L.

Masham of Ilton, B.

Shaughnessy, L.

Merlyn-Rees, L.

Simon, V.

Milner of Leeds, L.

Skelmersdale, L.

Molloy, L.

Stallard, L.

Monkswell, L.

Strabolgi, L.

Montague of Oxford, L

Swinfen, L.

Nelson, E.

Symons of Vernham Dean, B.

Tenby, V.

Noel-Buxton, L.

Thomas of Macclesfield, L.

Nome, L.

Turner of Camden, B.

Northbourne, L.

Warnock, B.

O'Cathain, B.

Watson of Invergowrie, L.

Oppenheim-Barnes, B.

Wedderburn of Charlton, L.

Palmer, L.

Wharton, B.

Patten, L.

Whitty, L.

Peston, L.

Williams of Elvel, L.

Plant of Highfield, L.

Williams of Mostyn, L.

Ponsonby of Shulbrede, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.58 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 82:
After Clause 27, insert the following new clause—
("Abolition of death penalty
ABOLITION OF DEATH PENALTY FOR TREASON AND PIRACY, ETC
.—(1) In section 1 of the Treason Act 1814 (form of sentence in case of high treason), for the words "such person shall he hanged by the neck until such person he dead", there shall be substituted the words "such person shall he liable to imprisonment for life".
(2) In section I of the Treason Act (Ireland) 1703, the words "pains of death, and" shall cease to have effect.
(3) The Treason Act 1790 and the Treason Act 1795 are hereby repealed.
(4) In section 2 of the Piracy Act 1837 (punishment of piracy when murder is attempted), for the words "and being convicted thereof shall suffer death" there shall he substituted the words "and being convicted thereof shall be liable to imprisonment for life".
(5) The Sentence of Death (Expectant Mothers) Act 1931 is hereby repealed.").
The noble and learned Lord said: My Lords, some of your Lordships may recollect that an amendment in terms similar to this one was debated in Committee. I am deeply grateful to those of your Lordships who have encouraged and supported me both inside and outside the Chamber. Your Lordships may be relieved to learn that I do not propose to repeat today all that I said in Committee. But lest some few of your Lordships were not present on that occasion, or have not had an opportunity of reading the report, may I indicate briefly what the amendment seeks and does not seek to do.
What it seeks to do is to remove finally from the statute book the last remnants of capital punishment in time of peace, that is, for certain offences of piracy and treason. I hope that I have now rectified the omissions in the draft which I presented in Committee. I am deeply grateful to all those who have assisted with the research,
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particularly to Amnesty International and to the officials of the Public Bill Office. We have trawled through the statutes in force and I think we have reached all the parts which my former researches did not reach. Even if there is some provision lurking unsuspected and undiscovered, I hope that your Lordships will not think that that precludes the House from taking a clear decision of principle today.
I turn now to what the amendment does not seek to do. First, it does not seek to revolutionise our customary way of life. The last execution for piracy was in 1830, and capital punishment for treason was last executed in 1947. So we have subdued piracy and frustrated treason for 50 years without resorting to the gallows. As some of your Lordships pointed out in Committee, capital punishment for arson in a royal dockyard was abolished unnoticed and unlamented in 1971 and was not followed by a spate of incendiarism in naval dockyards. The last execution in this country was for murder, and that provision was abolished in 1965, so I do not claim that the amendment will prevent the tumbrels from rolling.
My reasons for the proposal are twofold. First, I believe that it is a criterion by which history will judge our civilisation. As we perceive the ending of the blood feud and of whipping through the streets, so I believe will future generations perceive the ending of capital punishment in this country and its replacement by more civilised and more effective methods of law enforcement. Indeed, the Treason Act 1814, one of the provisions which it is proposed to repeal, was itself a civilising measure: it substituted hanging for disembowelling.
My second reason for moving the amendment is that I believe that it will encourage those countries which still retain capital punishment to think again and it will add credibility to our own Government's endeavours to bring that about. Knowing that the Government have reservations about ratifying the sixth protocol to the European Convention on Human Rights and the protocol to the International Convenant on Civil and Political Rights, I propose to leave that debate for another occasion. It is no part of this amendment and I do not propose to pursue it today although I give no undertakings as to my future conduct. My dispute with the Government on that issue is not because they are less than enthusiastic to see the death penalty abolished everywhere. They have played a leading role and strongly supported the final declaration of the summit of the Council of Europe last year which called for its universal abolition.
The amendment does not seek to amend the substantive law. Certainly, the law of treason is in need of revision; much of it still rests on the Treason Act 1351. In consequence, it would be treason to slay my noble and learned friend the Lord Chancellor but only if he is in his place executing his office. Anyone who imagines the need to slay him need only wait until he is going to the theatre when they need have no concern for the law of treason. Happily, as we all know, my noble and learned friend's safety does not rest on the Treason Act 1351. The Law Commission published a paper on

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the subject in 1977 but owing to what I believe were more the vicissitudes of parliamentary time than the merits of the argument the matter was never pursued.
None of that is relevant to the amendment. I mention it only because when I introduced a similar amendment in another place on 17th December 1990, I was met with the argument that the Law Commission was reviewing the whole law of treason and that it would be better to await the outcome. When next morning I telephoned the chairman of the Law Commission, he said that it was the first he had heard of it. Lest it be suggested that realistic amendment of the penalty should await a review of the substantive law, I merely observe that if it were to be suggested that because the law of treason is a complete muddle anyone convicted under it should for that reason be hanged, I would find the argument difficult to follow.
When the proposal in the amendment is made there are sometimes those who say that we should not act precipitately and that the matter requires more thought. Presumably, that is a way of saying that although no one can think of an argument against it, perhaps if we leave it long enough someone may come up with one. We have been reflecting on this since 1990.
The amendment does not seek to abolish the death penalty for certain offences against military law in time of war. That is not because I believe that our national safety depends upon shooting soldiers for cowardice, but because I recognise that the arguments are different. In Committee, the noble Lord, Lord Goodhart, suggested that it might be arguable that we should exempt from the amendment treason (even by civilians) in time of war. As the noble Lord would expect, I naturally reflected carefully on that. I finally decided against it because I believe that although it is arguable that in wartime troops in battle should be more afraid of their officers than they are of the enemy, I am not sure that civilians are best motivated in that way. I hope that the noble Lord will not press me on that.
Perhaps I may be permitted one final explanation. It may be wondered why I propose to substitute for the death penalty a mandatory life sentence since I have never concealed my support for those among your Lordships who argue for the abolition of that form of sentence. I do so only because that was the alternative to the death penalty that was adopted in the case of murder and it would avoid the charge of inconsistency. I simply say that I reserve that subject for a future debate.
This is one of those suggestions which are scarcely still controversial but for which there is never an appropriate moment to lay them to rest. I submit that there will be no better time than now. I beg to move.
Lord Windlesham: My Lords, in Committee, the noble and learned Lord, Lord Archer, and the noble Lord, Lord Thomas of Gresford, gave full and at times entertaining accounts of the historical origins of the statutes on piracy and treason. They had no difficulty in persuading the Committee that the death penalty
842
provisions were wholly obsolete and should he repealed. We heard a résumé of the argument from the noble and learned Lord just now.
My only reason for intervening today, having heard the previous debate but not spoken in it, is that I sensed in Committee an assumption, particularly noticeable in the latter part of the debate, that with the spread internationally of more civilised standards, if one can use that expression, the death penalty was in decline. As a convinced abolitionist, I wish that it were so, but, unhappily, much of the evidence points in the opposite direction.
The statistics compiled annually by Amnesty International, the most reliable source, show that in recent years, although there has been a welcome reduction in the total number of countries in which people are sentenced to death, the use made of capital punishment is on the increase and in some instances, such as the years 1995–96, sharply so. In 1995 at least 4,165 prisoners were sentenced to death, and 2,931 were executed. In 1996 7,107 prisoners were sentenced to death, and 5,139 were executed. It is true that some of the increases arose in countries with which we would not care to compare ourselves, but others are closer to home. In the United States of America, after a 10-year moratorium which ended in 1976, a substantial majority of states have reinstated capital punishment in state law, even states like New York and New Jersey which are regarded by some as traditional homes of civil liberties. In federal law there is now a long list of offences, some 40 or 50, punishable by the death penalty. In a number of cases the liability applies even where no victim has died as a result of the criminal act.
Because of the long drawn-out procedures for appeal against conviction and post-conviction review prisoners who are sentenced to death can spend anything up to 10 years on death row, and in a few cases even longer. As a result, at the moment there are over 3,000 prisoners on death row in the United States. In the state of California alone the number is between 400 and 500. There is an incoming tide from America.
Why do I raise that this afternoon in relation to this particular amendment which is so much narrower in scope? I raise it because in recent years so many ideas about penal policy—in my opinion, not all of them beneficent—have crossed the Atlantic in an easterly direction. For an example we need look no further than the introduction last year of mandatory sentences of imprisonment in the Crime (Sentences) Act.
The motivation for the use of the death penalty in the United States is now primarily retributive. It is the anger, fear and popular resentment caused by the extent of violent crime that has led to the re-emergence of what is fundamentally vengeance in penal policy. This is an ominous development of profound significance. Protective walls need to be built up in this country and elsewhere in Europe to make sure that there is no erosion of the principle that capital punishment has no place in the laws of a truly civilised country.
I return to the amendment. I hope that noble Lords will forgive me for going somewhat wider than the amendment which would effect a very modest change.

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We would be doing away with no more than historical relics of no practical significance. That would enable us to concentrate on strengthening what matters: our contemporary system of criminal justice, without resorting to the inhuman practices of the past.
5.15 p.m.
Lord Randall of St. Budeaux: My Lords, I make a very brief contribution to the debate on Amendment No. 82. I register my support for it rather than enter into the intricacies of the argument. My noble and learned friend Lord Archer has moved the amendment in such an eloquent fashion that I cannot match it. Therefore, I have decided to say very little.
I believe that the case is very simple. The principle is whether the state should be empowered to take the life of an individual and to do so irrespective of the seriousness of the crime. I do not believe that the state should ever have that power, and that is why I want the residual powers that exist in English law to be repealed. Existing science demonstrates that the death penalty is not the deterrent that has been used in political arguments for so many years. In the other place on numerous occasions attempts have been made to reintroduce capital punishment and those attempts have been defeated. I believe that that underlines the principle that capital punishment does not work in practice. The principle is itself so significant that a civilised country should not have recourse to such behaviour. The role of the state is to ensure that a convicted criminal is not in a position to harm individuals. I believe that there is here a "harm" test. Therefore, it is the responsibility of the state to take the appropriate action, which means imprisonment. Imprisonment in that way works. One can thereby ensure that the public is not harmed in any way.
My noble and learned friend Lord Archer went into the detail. It is not appropriate for me to go into the new clause and the way in which it deals with such matters as piracy and treason. The present law is utterly irrelevant. The failure of the courts to invoke it demonstrates that legislation introduced in the nineteenth century is not relevant to modern British society.
Before I sit down I should like to make one other point. I do not speak as a Catholic or as someone who has supported the anti-abortion campaign. This amendment would repeal The Sentence of Death (Expectant Mothers) Act 1931. I am pleased that it does so because I am repelled by the idea that a baby in the womb, which may be well developed, can be put to death by the state against the will of the mother for a crime committed by her. I find that quite unacceptable. I hope that this afternoon there is no division on this amendment and that it will be carried.
Lord Campbell of Alloway: My Lords, I am about to introduce a somewhat discordant note. I find difficulty with this amendment. Perhaps noble Lords will allow me briefly to explain the difficulty. I have no problem whatever about the repeal of the expectant mothers Act under subsection (5). This is a Bill to
844
reform our domestic criminal law and it is wholly appropriate that this particular enactment should be repealed.
My noble friend Lord Windlesham has done the House a signal service by deploying the international perspective of this affair which goes beyond the ordinary confines of a domestic criminal reform Bill. It was a most useful and objective exposition, and I say so with respect to my noble friend.
I have problems with subsection (4). Piracy, in public international law, is an offence. It is not just a matter of domestic law. The subsection provides:
"punishment of piracy when murder is attempted … and being convicted thereof shall suffer death".
My Lords, why not? That is the form generally in international affairs. What is wrong with it? Noble Lords will say no doubt, "This is wrong with that proposition; that is wrong with the proposition. What you are saying about international law is all nonsense. It is not that at all". So be it, but is this the time, is this the place, to entertain a discussion of that order? I respectfully suggest that it is not, and that this is not the Bill in which it should be dealt with.
Lord Archer of Sandwell: My Lords, perhaps the noble Lord will forgive me—I am most grateful to him. I trust that he appreciates that there is no intention in this amendment to change international law. This is to change our domestic law about what happens to someone who falls within the jurisdiction of the English and Scottish courts.
Lord Campbell of Alloway: My Lords, I am most grateful to the noble and learned Lord. I fully understand what I am talking about; but I am grateful to him nonetheless. I did not intend so to imply. I just want to deal with treason. I do not know, but I think that the last person who was hanged in the Tower was a stool pigeon at Colditz. That was for treason. I am not going to mention his name. What he did was treason. Those of us who were there were delighted to hear the result.
What happens in war? What happens in a prison camp? What is treason? How should it be dealt with? Is that a matter that we should start to discuss here? There are many ways in which this can be dealt with, but there is the international concept of treason. How is treason dealt with generally throughout the world? Usually by the death penalty. To me the death penalty is abhorrent. I spent a lot of useless time in your Lordships' House seeking to oppose the mandatory sentence for murder which was in exchange for the death penalty for murder. I oppose generally in our domestic law any form of re-imposition of the death penalty for murder, but I sincerely suggest that this amendment is not the way to deal with treason or piracy.
Lord Thomas of Gresford: My Lords, it always grieves me to disagree with the noble Lord, Lord Campbell of Alloway, and I am grieving rather a lot, I am afraid. He said that this is the form in international affairs. That is something that strikes me deeply. One may be conscious, as I am, of the executions that take place publicly in China, where

845
the family is charged for the price of the bullet. Those executions are carried out for offences which do not necessarily involve murder. They may involve all sorts of different types of commercial offences. When that is the standard of international affairs that is put before us, I cannot accept it.
Just before Christmas I received a letter from someone whose address was "c/o Death Row" in a prison in Jamaica. I am happy to say that I have received a subsequent letter with the address, "c/o Local Remand Centre", because the appeal was successful. That brings it home that when we are looking at the international dimension, as the noble Lord, Lord Windlesham, said, far too many executions are carried out. Human life is taken on the flimsiest of evidence.
I come to our domestic legislation. Surely we must all have at the forefront of our minds the principle of respect for human life. We must bear in mind at all times that today, with the advances that we have had in scientific knowledge, it is not possible to be as confident as people appeared to be in the past of the guilt of a particular defendant. People who have been executed within our own jurisdiction in the past, may very well have been wrongly executed.
If that is the principle, what is the practicality? The practicality is that we are dealing with historic offences, historic punishments, which, as the noble Lord said, have no relevance to the circumstances of today. If therefore these provisions have no practicality, then the principle has to remain. I do not know what the Minister's attitude on this amendment will be, but I hope that we do not have to face a whipped vote on a matter of this sort in relation to this amendment.
Lord Ponsonby of Shulbrede: My Lords, I wish to remind your Lordships that we are members of the Council of Europe. As members of the Council of Europe, we signed Resolution 10/97 which calls upon all parliaments in the world, which have not yet done so, to abolish the death penalty for all crimes before the end of this Millennium. That resolution was passed in 1996.
The noble Lords, Lord Thomas and Lord Windlesham, spoke forcefully about the increase in capital punishment in America. The Council of Europe now has 40 member countries. To be a member of the Council of Europe one has to abolish the death penalty. That is a force for good. Every noble Lord who has spoken has referred to the irrelevance of these provisions for the death penalty.
During the last plenary session of the Council of Europe, which I attended, that had some relevance in an obscure way. A resolution was moved by a British Member of Parliament which called for the expulsion of the Ukraine from the Council of Europe because it was continuing to execute people. I was not alone in being ribbed by other members of the Council of Europe about the vestiges of the death penalty that we still have on our statute book. It undermined the argument that we were deploying to have the Ukraine expelled from the
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Council of Europe. I support the amendment moved by my noble and learned friend. I shall support it if he chooses to press it to a Division.
Lord Milverton: My Lords, I have been thinking about the death penalty for many years. I have been going back and forth over it. I have finally come to the conclusion that it is wrong. Let us ensure that when a person is convicted of murder, vile or not so vile, horrible or not so horrible—most murder is vile and horrible, no matter how it is done, by a man or woman—he realises the wrongness of his deed by knowing that he will be in prison not just for a little twinkle time but for a reasonably long time. We must ensure that we have a Prison Service which can provide constructive and positive creative activity. One cannot force that upon a person, but we must ensure that it exists so that he will be unable to say, "While I was in prison I had nothing to do".
I know that it is horrible for someone to have to impose the death penalty. I recall that my father often had to do so during his different governorships. He was known to be a strong man, but there was a soft side to him and it was shown at such times. The family knew that when my father had to carry out the ghastly act of signing a death warrant it hurt him. He hated having to do it, but it was the law of the land. I know that deep down he wished he need not.
Let us ensure that those who commit such vile crimes do not believe that they can afterwards say, "It's all right, society does not really bother about it. People are just sorry for us and a feeble excuse will be made about why we did it". We must provide such people with the opportunity for creative activity while in prison so that they have no chance of saying, "We were not helped to return to normal, or as normal as anybody can be". I am pleased that I have at last reached that decision.
5.30 p.m.
Earl Russell: My Lords, people at meetings sometimes ask unexpected questions. I remember when I was an undergraduate the late Hugh Dalton, addressing a meeting, being asked what was the best degree for politics. He replied, "A second, because the first-class mind is too conscious of the possibility of error". I make no comment on what is the best degree for politics, but I should like my judicial system to be run, as I believe it is, by first-class minds. The possibility of error is the centre of the whole argument against the death penalty. I will not run through the possibility of error in cases of murder—it is not relevant to the amendment—but in cases of treason, as the noble and learned Lord. Lord Archer, pointed out, it is redoubled because the law is such a mess.
The noble and learned Lord made only one comment with which I disagree. Do not denigrate the 1352 statute—or the 1351 statute, as it is in lawyers' dating. Every attempt to improve upon it has made confusion worse confounded. The trouble with treason is that it is a charge used to say, "I am very angry". People are often angry about issues of doubtful value. Therefore, the death penalty for treason is more likely to lead to error even than the death penalty for murder. The noble

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Lord, Lord Campbell of Alloway, asked why it should be considered in this House. I say that because of all the places in which it has been debated over the centuries more sense has been spoken about it in this House than in almost all the rest put together.
I have one other point which is of particular relevance to the Opposition Front Bench. I have heard Members of it say many times in this Chamber that murder is literally the most heinous crime. Whether one accepts that argument or not, if one believes that, then it makes only sense that no crime should have a more severe punishment. If one believes that, there is some incongruity about punishing either treason or piracy more severely than murder.
Finally, one must consider the effect of any punishment on those who inflict it as well as on those upon whom it is inflicted. When I was an undergraduate, the piece of information which finally converted me to supporting abolition of the death penalty came from the late Gerald Gardiner. I learnt that the number of people who applied for the post of public hangman was 500 a week. That is really conclusive.
Lord Judd: My Lords, I join those noble Lords who have congratulated my noble and learned friend Lord Archer on the steadfast lead he has given on this issue. I wish to put forward one argument in addition to those already convincingly deployed. It seems to me that if we base our position in respect of capital punishment on principle, principle must be absolute and not relative. Therefore, the more testing the circumstances in which we are considering a punishment, the more important it is to stand by the principle. In some ways, the more extreme the provocation, the greater the danger, the more important it is to stand firm. The moment one shows that one's principle can be qualified one throws into a position of jeopardy the application of the principle across the board.
Reference has been made—and it is important—to the fact that the number of executions in the world is increasing and that the tide of public opinion in the international community is not convincingly going in our direction. In such a situation it is not impossible that arguments could begin to be deployed that if the death penalty is retained in certain circumstances it is not illogical in terms of principle to apply it in other directions, too. So far as I am concerned, that is the most clinching argument in support of what is put forward by my noble and learned friend Lord Archer.
Lord Renton: My Lords, I hope that I may be forgiven for intervening in this important debate having missed the first 14 minutes of it. I invite your Lordships to consider what the effect of the amendment could be in time of war. We would have our own men and women fighting against the enemy and sacrificing their lives. At home, one of our own citizens might act as a traitor, going so far as to kill the sovereign, or place a bomb under 10 Downing Street. That would amount to an act favourable to the enemy—an act of treason. If the amendment were carried, while people were
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sacrificing their lives to defend their country, such a man clearly being guilty of treason would simply be imprisoned. That is not right.
Lord Kennet: My Lords, before the noble Lord sits down, can he tell the House why such an act would favour the enemy? Would it not make our people even more angry with the enemy?
Lord Renton: My Lords, if I may say so, that is a ridiculous proposition.
The Earl of Onslow: My Lords. I wish to reply to my noble friend Lord Renton. I use the phrase "noble friend" not only in its political sense but in its most personal sense. Bombs have been directed at 10 Downing Street and there was an attempt in Brighton to blow up Her Majesty's Government. We deemed it extremely stupid to charge those rebels—and that is exactly what they were—with treason because we knew that, if we charged them with treason, they would be open to the death penalty. Therefore, we took a political decision—and in my view, a wise political decision—to charge them only with conspiracy to cause explosions.
I believe that we are too grown up and too civilised a state to use the death penalty any more. I use one further analogy. Until 1948, Members of your Lordships' House who were charged with a felony were charged in front of the whole of your Lordships' House. That was removed by a Conservative amendment to the 1948 Criminal Justice Act, with the exception of treason. One commits treason if one has carnal knowledge of the sovereign, if female, or the wife of the heir to the throne. It seems to me to be terribly stupid to have a system whereby, if Major Hewitt had been a Member of your Lordships' House, he could have been charged with treason, of which he was undoubtedly guilty, dragged in front of your Lordships' House and then hanged. I admit that I am reducing that to the realms of the ridiculous but we should not have on our statute books the right to hang people for a ridiculous offence. I hope that this amendment will he accepted.
Lord Renton: My Lords, surely the point which my noble friend has raised would be dealt with better by redefining treason and confining it to matters which seriously threaten the security of our country.
Lord Annan: My Lords, redefining treason is well known over the centuries. The noble Earl, Lord Russell, said that this House had debated the issue of capital punishment better than any other institution. It is certainly true that over the centuries, since 1351, more Members of your Lordships' House than of any other institution have been executed. That is because the nature of treason was redefined time and again during the Tudor and Stuart periods.
Lord Davies of Coity: My Lords, I too wish to add my voice and extend my congratulations to my noble and learned friend Lord Archer on introducing this amendment. If he pushes it to a vote, I shall certainly support him.

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I recall that I first became an abolitionist when I was a teenager. It was not popular to be so then because capital punishment was being practised in this country. But this debate this evening is not about whether or not this country has capital punishment. That debate has taken place; a decision has already been taken; and no longer do we practise capital punishment for murder. It is a question of establishing consistency in terms of capital punishment for piracy and treason.
It is totally inconsistent. I have always believed that, if we condemn people for committing murder, society can take no pride in committing the same offence in the form of what I have always considered to be state murder. I support this amendment and hope that the House will accept it.
Lord Lester of Herne Hill: My Lords, the merits of the amendment have been debated extensively and the overwhelming consensus of those who have spoken so far is that plainly there is an anomaly in our legal system. We are dealing with ancient, outmoded, archaic statute law. The question we need to consider now is whether we should promote a dialogue with another place to see whether both Houses are agreed that the time has come to remove those anomalies from our statute book.
It seems to me that it is peculiarly appropriate for this House to initiate that dialogue. We live in an age of statute law. some would say too much statute law. Some would say that we need a stronger common law for the age of statutes. But the problem for a legislature in an age of statutes is how on earth one gets rid of antiquated, archaic, dead laws which lie on the statute book and continue to disfigure it. It seems to me to be peculiarly within the province of the upper House, this House, with its expertise and Membership, to initiate a dialogue with the democratically elected other place so that if it is felt that the majorities that were formed in 1703, 1795, 1814 and 1837 no longer represent the majorities that would be formed in Parliament today, the other place can agree with this House to remove that disfiguring legislation from the statute book.
I should be surprised if another place were to take the view that contemporary majorities, legislative or otherwise, would be at all of the same spirit as in the 17th, 18th and 19th centuries. For that reason, I congratulate the noble and learned Lord, Lord Archer of Sandwell, on continuing with this initiative. I very much hope that the sometimes gloomy expressions on the Front Bench do not indicate that we shall hear from them anything other than wholehearted support for the amendment. I hope that the Government as a whole will feel able to give a lead on the issue, based as it is on reform and conscience. It seems to me to be an admirable issue for leadership from the Government.
Lord Henley: My Lords, perhaps I may speak relatively briefly from these Benches. As the noble and learned Lord, Lord Archer, reminded us, this is the second occasion on which we have addressed these matters. We covered the subject at a slightly later hour—I believe it was after dinner—on the third or fourth day in Committee. As I remember that debate, it ran somewhat
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wider than the amendment itself. We covered such subjects as the right of Peers to be hanged with a silken cord and the Ferrers case involving the forebear of my noble friend, who is sadly not with us on this occasion.
As I say, I speak from these Benches but I am giving my personal view. I stress that on these Benches, as I imagine is the case on the Government and Liberal Democrat Benches, this is a matter of conscience and should we have a vote, we shall be voting without the guidance and assistance of the party Whips.
As in Committee, I start by stressing my personal opposition to the death penalty and to its use. That is based partly on the reasons given by the noble Lord, Lord Randall; that is, a degree of repugnance towards such a penalty as the cold-blooded killing of offenders by a modern civilised state following the judicial process.
Secondly, I am opposed to it for the simple practical reason that there could be many occasions—and I dare say the lawyers would agree with me on this—when achieving a conviction could be considerably more difficult if certain members of the jury thought that that conviction was likely to lead to a death penalty. For that simple reason, I believe that the death penalty is unwelcome.
However, as regards the timing and place of the amendment, I do not share the same views as the noble and learned Lord, Lord Archer, and his supporters. Again, as I made clear in Committee, I do not believe it is appropriate that the final vestiges of capital punishment—and I appreciate that they are vestigial remnants; as my noble friend Lord Windlesham put it. mere historic relics—should disappear following a debate, albeit a fairly lengthy debate in this House on what is a relatively quiet Thursday afternoon and without that much notice. The noble and learned Lord, Lord Archer, looks around and seems to imply that it is a relatively full House. He will appreciate that I have seen a much better attended House to discuss important subjects.
Lord Archer of Sandwell: My Lords, I was in fact doing a random count. I have much more frequently seen an emptier House.
Lord Henley: My Lords, I have now been in this House, more or less to the day, for some 20 years and I have seen the House both full and empty on many occasions. However, on important subjects—and I am sure we would all agree that capital punishment is a most important subject—one would expect to see the Chamber considerably fuller than it is at present. Indeed, one would expect an amendment such as the one moved by the noble and learned Lord to have been flagged up in press reports and to have a degree of coverage that it has not received.
Obviously I shall not vote against the noble and learned Lord should he wish to press the matter to a Division. However, I would prefer him not to press the amendment on this occasion. Indeed, it might be more appropriate for him to return to the matter on Third Reading when we can repeat the debate in a fuller House showing greater interest. I believe that something which has not really come to the attention of—dare I say it?—that many noble Lords should not, on an occasion such as this, be pressed to a vote.

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As I made clear, I am not opposed to the amendment; my opposition is to the timing of it and the fact that it is being introduced as a Back-Bench amendment on such a Bill at this stage. I hope, therefore, that the noble and learned Lord will carefully consider whether it might be more appropriate for him to try to generate a greater degree of interest in his amendment and return to the matter on Third Reading.
Lord Williams of Mostyn: My Lords, I am grateful to my noble and learned friend Lord Archer and, indeed, to all contributors to the debate. As has been said, capital punishment for murder was abolished as long ago as 1965; but, equally, the death penalty still remains as a valid—that is, capable of being used—though unused sentence for the offences which have been specified.
My noble and learned friend Lord Archer rightly made perfectly clear that the amendment would not affect the position on Armed Forces legislation. The Government do not believe that the abolition of the death penalty for these obscure offences is a priority because we have other priorities; namely, to improve the criminal justice system and take forward our various manifesto commitments in the field. The offences are very archaic and, indeed, are rarely prosecuted.
However, although it is not a priority, it is an important matter of principle; namely, should those who commit these particular offences be executed for those crimes? Like our predecessors, we believe that questions relating to the availability of the death penalty are matters for individual Members of the House to decide on a free vote, according to conscience.
As my noble friend Lord Ponsonby said, our position internationally is quite clear. Parliament has consistently voted against the death penalty. We supported the Final Declaration of the Second Council of Europe Summit as recently as 11th October 1997. We have always believed that these are matters for a free vote. The consequences of the amendment have been sufficiently spelt out to enable me not to repeat them.
I am advised that the amendment would substitute a maximum of life imprisonment, not a mandatory life sentence. I believe I should stress that fact, although it may not affect the principle. In view of the fact that the most serious examples of these offences are murder and, as the noble Earl, Lord Onslow, indicated, cover other actions such as violating female members of the Royal Family whether or not they consent, we believe that a discretionary life sentence is appropriate.
As I said, it is a matter for a free vote. I cannot advise noble Lords on what view to take on the amendment. However, according to tradition, I am entitled to give my personal view while standing here and I do so. Indeed, I made clear my view when the amendment was discussed in Committee. However, noble Lords were present at that stage and I respectfully, gently dissent from the view expressed by the noble Lord, Lord Henley, that this matter has not been sufficiently covered. There are those who choose to attend and speak and that is their choice. Alternatively, there are those who choose to absent themselves and that is their choice. I do not believe that the matter has been sprung unwittingly on an unknowing House. That is my personal observation.
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As I said, I am entitled to give my view. I have always opposed the death penalty. If my noble and learned friend Lord Archer calls for a Division, I shall vote with him to abolish these offences—
Noble Lords: Hear, hear!
Lord Williams of Mostyn: However, there is a relatively minor point with which I shall deal shortly. If my noble friend's amendment is carried, we shall of course need to ascertain whether any further consequential amendments are required to attend to ancient legislation. If that proves to be the case, and if my noble friend's amendment is carried, we shall aim to bring such amendments forward on Third Reading.
Lord Archer of Sandwell: My Lords, I am most grateful to all noble Lords who have participated in the debate, especially those who supported my amendment. I am also most grateful to my noble friend the Minister. The speech he has just made from the Government Front Bench was indeed a delight to hear. I hope that we will hear many more speeches of that kind.
It is very tempting at this stage to try to address some of the issues that have been ventilated during the course of the debate. However, discarding the habits of a lifetime, I propose to resist that temptation. I would be a faint heart indeed if, with so much encouragement, I did not offer your Lordships the opportunity of taking a decision. I propose, therefore, to test the opinion of the House.
5.55 p.m.
The Deputy Speaker (Baroness Cox): My Lords, the Question is that Amendment No. 82 shall be agreed to. As many as are of that opinion will say "Content". To the contrary, "Not-Content". I think the Contents have it. Clear the Bar.
Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 31. A Division therefore cannot take place, and I declare that the Contents have it.
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 83:
After Clause 27, insert the following new clause—
RAPE OFFENCES
(".— (1) In section 1 (rape of woman or man) of the Sexual Offences Act 1956 ("the 1956 Act"), for paragraph (b) of subsection (2) there shall be substituted the following paragraph—
"(b) at the time he does not have reasonable grounds for believing that the person is consenting to sexual intercourse."
(2) Subsection (2) of section 1 (meaning of "rape" etc.) of the Sexual Offences (Amendment) Act 1976 ("the 1976 Act") shall cease to have effect.

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(3) Section 2 (restrictions on evidence at trials for rape, etc.) of the 1976 Act shall be amended as follows—

(a) in subsection (1), for the words "a rape offence" there shall he substituted the words "an offence listed in the Second Schedule to the Sexual Offences Act 1956 and triable on indictment"; and

(b) for subsection (4) there shall be substituted the following subsection—

"(4) If leave is given under subsection (1) above, evidence may he adduced and the person charged may be questioned in cross-examination at the trial to show that he has committed, been convicted of or been charged with any offence listed in the Second Schedule to the Sexual Offences Act 1956."
(4) In subsection (1) of section 4 (anonymity of complainants in rape etc. cases) of the 1976 Act, after paragraph (b) there shall be inserted the following paragraph—
"(c) after a person is accused of a rape offence, no matters likely to lead members of the public to identify that person as the person so accused shall, unless that person is convicted of the offences, be—

(i) published in England and Wales in a written publication available to the public, or

(ii) included in a relevant programme for reception in England and Wales.".").

The noble Lord said: My Lords, we have been deprived of the opportunity of voting on Amendment No. 82 but I express the pleasure of these Benches that it was accepted. Amendment No. 83 that we now discuss involves some important changes to the procedure in trials for serious sex offences, particularly rape. I should make it clear at this point that I do not intend to press this amendment to a vote because I believe that it would be wrong to do so on an issue of this importance which has not been raised until the Report stage. In any event I understand that the Government are conducting their own review of the matters covered by this amendment.
This amendment was not raised earlier because at the time of the Committee stage of this Bill the issues covered by the amendment were still a matter of internal debate within my party. That debate was resolved by a substantial majority of the party at its Spring conference last weekend. I am therefore anxious to raise these issues as soon as possible for discussion even if not for a vote. The amendment has three purposes. The first purpose is to remove the defence of mistaken belief in consent where that belief is not reasonable. That is covered by the proposed new subsections (1) and (2) of Amendment No. 83.
In the great majority of cases there are one of two defences to rape, either, "It was not me" or, "She consented". If the defence is, that she consented, the prosecution has to prove that the woman did not consent. That obligation rightly rests on the prosecution and is not affected in any way by this amendment. The defendant then has another string to his bow. He can say, "I thought she consented" even if she did not. The state of the defendant's belief is solely within his own knowledge and is difficult to disprove. Of course the rapist who springs out on a strange woman is not likely to be believed if he raises that defence, but it is much more difficult to be satisfied that the defendant is lying where some consensual sexual intimacy has occurred before the rape takes place. For example, I refer to the case of a young man who picks up a girl in a pub and takes her outside.
If one believed that mistaken belief in consent should be a defence, even where that belief is not reasonable, then the law should not be changed even if it provides a loophole by which the guilty can often escape. But I do not believe that unreasonable belief should be a defence. If a man wants sex with a woman, or indeed with another man—rape applies to an assault on either sex—he should not go ahead unless he knows that the other person has agreed to it. If he does not have her consent, or if he does not have reasonable grounds for believing that he has her consent, he should bear criminal responsibility for his action. Genuine belief in consent which is not reasonable may be a ground for mitigating the sentence but I believe that it is not a ground for escaping conviction.
The proposed new subsection (3) of the amendment deals with another matter; namely, the cross-examination of an alleged victim on her sexual history. This is, of course, something that is now permitted—except so far as sexual history between the defendant and the complainant is concerned—only with the leave of the judge. I think it was originally contemplated that that leave would be given only in exceptional circumstances. However, it is quite widely given, no doubt because judges are worried that if they refuse it that may be a ground for appeal. First, we say that the leave of a judge which is currently required only in rape offences should be extended to other serious sex offences. I apologise that there is a misprint in the amendment. I do not think that is my fault. The phrase "liable on indictment" in the amendment should of course be "triable on indictment".
Secondly—this is a change—the proposed new subsection (3) seeks to put the defendant's sexual history in issue where leave is given to cross-examine the complainant on her sexual history. There is, of course, a general principle that where the character of the prosecution witness is attacked, the defendant puts his own character in issue in evidence. This measure gives effect to a similar principle. Where the defence raises an issue as to the sexual behaviour of the woman, we believe he should not be exempt from being cross-examined and evidence being given as to his own sexual record.
Thirdly, the proposed new subsection (4) of the amendment seeks to extend to the defendant the anonymity which is given at present to the victim. This excludes a right to identify them in the press or in the broadcasting media unless and until convicted of the crime. We believe that is only fair and that the right to anonymity should apply both to the complainant and to the victim while the trial is proceeding. At our Spring conference the party also endorsed restrictions on cross-examination by a defendant in person, similar to those proposed in Amendment No. 84 which we shall therefore support. There is great and justified concern about the law and procedure in rape trials. We believe that amendments on the lines of those numbered 83 and 84 would do much to relieve that concern.
For the reasons given, I shall not press Amendment No. 83. However, I hope to see its contents reappear in due course in government legislation. I beg to move.
Earl Russell: My Lords, I support the amendment, to which I have put my name. The point of the first section of the amendment is the reversal of burden of proof where the defendant claims that the alleged victim consented. This is a very limited scope. The burden of proof still rests on the prosecution to prove that intercourse took place and that the victim did not consent. There is no change in that. The change in the burden of proof only arises when the man says, "I believe she consented".
Part of the problem that is being addressed in the amendment arises from the Morgan case, of which some of your Lordships may have heard. In the Morgan case, the victim's husband assured four of his military colleagues that his wife loved kinky sex, the rougher the better, and to take no notice of anything she said. The wife objected, to put it no higher. Because of what the husband had told them, the men concerned, the accused, took no notice. It was found on the existing law that they had a good ground for what they did.
Where a man claims that the woman consented, as my noble friend said, it is difficult to see into his mind. You cannot take his bare, unsupported word that he believed the woman consented. People have been known to believe most extraordinary things against the weight of the evidence. I think that it is quite fair to ask the man who says that, "Why did you believe that she consented?", and quite fair to require him to prove the contention he makes. That is as far as that goes.
The provision is in line with other areas of the law. Where a man is accused of intercourse with a girl under the age of consent, and he says that he believed she was over the age of consent, he has to show that he had good reason for believing that she was over the age of consent. The burden of proof similarly rests on him. Your Lordships may agree that it is quite right that the law is as it is in that respect.
Where a man is charged with bigamy, and where his defence is that he did not know he was committing bigamy, he did not know that the woman had a previous husband alive, in that case, similarly, I understand that the burden of proof rests on him. Your Lordships may agree that it is right that that is so.
The second part of the amendment applies only where the woman's previous sexual history is also put in issue. It is an amendment based on the principle of the level playing field. While I personally would prefer not to have the previous sexual history of either party taken in evidence, unless it was the sexual history of those two parties with each other, if it is to be taken in evidence at all there is a strong case for arguing that that should be on the basis of the level playing field.
The third plank of the amendment introduces anonymity not only for the woman but also the man. Again it is a level playing field amendment. Where you face a charge of this kind, the mere publicity is itself a severe penalty. You are recognised on buses. Your relations find out about the case from finding your face
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pictured on paper used to wrap kippers. These penalties are severe. The recognition may continue for years. It is a severe handicap to normal human relations. It is the contention of the amendment that that punishment should not be inflicted on those who are found innocent. If you are innocent you should not be punished. I think that that is only justice.
6.15 p.m.
Lord Ackner: My Lords, I may be entirely in error but it seems to me that the amendment overlooks Section 1(2) of the 1976 Act. It provides as follows:
"It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed".
I should have thought that that makes perfectly good sense. One has the subjective test in relation to the knowledge and appreciation of the accused; and then one has drawn to the attention of members of the jury that in considering whether they believe his proposition that the woman consented to the sexual intercourse, reasonable grounds for such a belief is a matter to which they are to have regard. I should have thought that that was a satisfactory situation. It was the result of a committee set up especially to consider this matter, presided over by a highly experienced lady judge, Mrs. Justice Heilbron.
In regard to the second part, the same committee provided in Section 2(2) the prohibition on the cross-examination with regard to previous sexual history. But it provided a let-out in these terms:
"The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of the defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would he unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
It is only when the judge is satisfied that it would be unfair to the defendant that leave is given. And it would be unfair to the defendant if it went to the very core of his defence to bring out the material about the complainant's sexual history in particular with regard to him. The judge says to himself, "Is this necessary for the defence? If it is, then I will make a special order". Why on earth should that then result in an exception to one of the principal rules of criminal law, that an accused's character is not put before the jury? It can only be done on the basis that the defendant himself has so attacked the complainant that the exception applies, that when you attack the character of a prosecution witness then, for the sake of the level playing field, your own character is put before the jury.
But the defendant has ex hypothesi obtained the consent of the judge in order to put his defence forward. He is not allowed to put the defence forward on the basis of just going essentially to credibility. For instance, it might be said, "It is my defence that this woman and I have lived together for 10 years and that she is highly sexed," and whatever other characteristics she may have, "and this is what happened in truth and

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in fact". It penalises a defendant on the basis that if he puts forward this defence, then his sexual history can go in: evidence can be adduced that he has been convicted or charged with any offence listed in the second schedule.
Lord Goodhart: My Lords, will the noble and learned Lord accept that the position under Section 2(1) of the 1976 Act is that, in fact, leave is only needed when the sexual history that is sought to be brought in evidence is the sexual history of the woman's relationships with other men? So our amendment would not apply to a defendant who simply seeks to raise as an issue, as he is entitled to do without leave, the sexual history between himself and the complainant.
Lord Ackner: My Lords, the actual provision of Section 2(1) reads as follows:
"If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall he adduced or asked at the trial, by or on behalf of any defendant at the trial about any sexual experience of a complainant with a person other than that defendant".
Lord Goodhart: That is correct—
"with a person other than that defendant".
Lord Ackner: My Lords, the permission to ask those questions, which can be achieved only on a separate application to the judge, is granted only if it would be unfair to the defendant to refuse to allow him to ask those questions. The unfairness could only be unfairness if the refusal meant that he could not properly put before the court his full defence.
So the proposition in this amendment is: "If you are going to be allowed to put forward your true defence, then you are going to have the entirety of your sexual character put in evidence, and everybody knows that, if that occurs, the inevitable result will be that you will be convicted". It would therefore mean that the accused would be inhibited from making the application which Parliament thought he would be perfectly entitled to make with the special leave of the judge. The consequences of getting that leave and taking advantage of it would be to let in—to his profound prejudice—the sexual activities which are covered by the amendment.
That is very unfair. There are many exceptions, rightly made, in regard to sexual offences, but to carry still further a special exception which can only do harm to the defendant seems to me to be going too far.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, these amendments are a valiant attempt to deal with a number of difficult problems in the law on rape. The proposed new clause deals with various different aspects of the law, including the definition of consent which goes right to the heart of the law on rape. It is a question of immense significance. I do not think it is appropriate to be dealt with in a quickly tabled amendment this late in the course of the Bill.
Subsections (1) and (2) on the definition of consent seemed to be intended to make it easier to prove a charge
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of rape. The Government have been concerned for some considerable time at the low success rate in prosecutions for rape. We are taking action in relation to that and I shall turn to that in a moment. While I understand why the noble Lords opposite have proposed these changes, they do not provide a better way forward.
The offence of rape is committed where a man has sexual intercourse with another man or woman; and at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. The effect of that, as the noble Lord, Lord Goodhart, pointed out, is that a man cannot be convicted of rape at present where he believes, even mistakenly, that the other is consenting, because if he had such a belief he cannot have intended to commit rape or have been reckless as to whether consent was given.
As the noble and learned Lord, Lord Ackner, pointed out, Section 1(2) of the Sexual Offences (Amendment) Act 1976 permits the jury to have regard to whether or not the grounds for his belief were reasonable, but only on the issue as to whether he believed that there was consent or was reckless as to whether or not there was consent.
The effect of what is proposed would be that, instead of the jury being asked about the accused's state of mind, it would be for the jury themselves to ask: "At the relevant time, did the defendant have reasonable grounds for believing that the person was consenting to sexual intercourse?" If he did not have reasonable grounds, then assume the other elements, and if in particular the commission of the sexual intercourse was proved, he would be guilty of rape.
This proposal is not simply a change to the burden of proof, as the noble Earl, Lord Russell, suggested, but would mark a fundamental change in the law on rape. At present a man can be convicted only if he has intercourse knowing or being reckless as to whether the alleged victim consented. The proposal would allow the jury to say subsequently that such a person did not have reasonable grounds for any actual belief that he had, and was therefore guilty.
I could not recommend such a change, well-intentioned though it is. Later this year the Government will have available the report of a major research study into the attrition rate in rape cases; namely, the difference between the number of complaints that are made of rape and at the end the number of convictions. The Government must first identify the specific problems of why rape cases fail, then attempt to deal with them rather than the approach adopted by the noble Lords' amendment to change the law fundamentally without the benefit of that detailed research and without consultation on this most controversial of subjects.
Turning to the other effects of the amendment, subsection 3(a) extends the restriction on cross-examination on a victim's previous sexual history, currently limited to rape, to other serious sexual offences, while the effect of subsection 3(b) is to allow in evidence, during a rape or sexual offence trial, details of a defendant's previous convictions or any charges—whether or not they resulted in conviction—previously laid against him for rape or sexual offences.

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As this House is aware, to take forward our manifesto commitment to provide greater protection to victims in rape and other serious sexual offences cases, we established in June last year an interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system. One of the important issues that group is examining is the law in respect of the cross-examination of victims about their previous sexual history in rape and serious sexual offence cases. The group is due to report to Ministers shortly; it has had its last meeting. One should wait for that report before proceeding on a change of the sort identified by those opposite.
The law governing the admission of evidence of previous convictions in criminal proceedings applies to all criminal offences and not just offences of rape. Therefore, it is important that this issue is considered in the wider context. Such a review is currently being undertaken by the Law Commission. This is recognised as an exceptionally complicated area of the law and I believe it is important that before we embark on any reform in this area the law is subjected to rigorous examination. We shall of course give further consideration to changes in both these areas in the light of the work of the Vulnerable or Intimidated Witnesses Review and the work of the Law Commission.
On subsection (4) of the amendment, relating to the anonymity of a defendant, I appreciate the concerns of those who have suffered from being identified as an alleged rapist. Society attaches a stigma to those accused of such an awful crime. I also recognise that those accused of such crimes once had anonymity. But that anonymity was removed. Why? First, because in a system of justice in which openness is a fundamental principle, defendants are generally named, even in the case of murder and other reprehensible crimes. Why should defendants in rape cases receive special protection?
Secondly, anonymity for the complainant is designed not only to protect victims from hurtful publicity for their sake but to encourage them to report crimes of rape to ensure that rapists do not escape prosecution. Such an argument does not apply to the accused where the arguments are about preventing personal hurt and embarrassment rather than improving justice.
Thirdly, an argument advanced for giving the complainant anonymity is that he should be treated on an equal basis to the victim. I do not believe that that is right. A defendant's equality lies with other accused persons and it is an acquittal which will give him public vindication.
Fourthly, anonymity might help to ease the pain suffered by defendants in rape cases, but even without all the publicity some defendants will doubtless experience suffering and trauma. Notwithstanding press anonymity, they may still be identified by their local communities.
Lastly on anonymity, subsection (4) would do nothing to help deal with the problems which subsections (1) and (2) seek to address—namely, the problems surrounding the low conviction rates for rape. Often the naming of the accused can be used to provide the public with information which they can pass on to the police. This can be vital in obtaining the necessary evidence against an accused.
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Attractive though this amendment may superficially seem, for the reasons given I urge your Lordships to reject it.
Lord Goodhart: My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his reply. As I made clear, the purpose of the amendment is to raise the issues, not to seek a decision on them this evening. There are arguments on both sides. Some of the reservations felt by the noble and learned Lord the Solicitor-General are shared by some of my noble friends, who are not unanimous on the subject. I shall not go through them again at this point, but there are important arguments in the other direction. I hope that the review which the Government are undertaking will take those arguments into account. Serious problems are involved. I believe that some, if not all, of the provisions proposed would help to ameliorate those problems.
Perhaps I may make two points in reply to the noble and learned Lord, Lord Ackner. First, he suggested that we had overlooked subsection (2) of Section 1 of the Sexual Offences (Amendment) Act 1976. We certainly did not overlook it since the amendment specifically proposes that it should be repealed. Views on whether reasonable grounds should be had regard to as a defence may have changed since 1976.
Secondly, leave to bring out a defendant's sexual history under the existing law, which we do not seek to change, is required only as regards the complainant's sexual history with other persons. The amendment does not bring the defendant's personal history into account if all he raises is his sexual history with the complainant. The amendment applies only where sexual history with other men is involved and where the defendant's defence is, "Because the complainant consented to sex with X, Y and Z, I therefore reasonably believe that she consented to sex with me." That brings the complainant's character into issue and in that case the level playing field of allowing the defendant's character to be brought in is entirely justified. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Schools Funding
6.34 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Education and Employment. The Statement is as follows:
"Tuesday's Budget has rightly been well received. It confirmed New Labour's reputation for economic

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competence. It was a Budget for enterprise, a Budget for work, a Budget for families and for education.
"The Chancellor pledged an extra £250 million for schools and skills in the coming financial year. Let me remind the House that this increase is part of the £2.5 billion boost for education and skills which we have already earmarked in the 10 months since we were elected last May.
"We inherited a situation where between 1993 and 1996 the party opposite had cut £110 in real terms from every secondary pupil in the country and £44 from every primary pupil. Already we have made a substantial start to repair the damage of years of Tory neglect by providing an extra £110 for every pupil in the coming financial year. We have increased the Standards Fund to over £500 million for 1998–99, which includes an extra £59 million to improve literacy standards. Today I want to detail the big difference which this week's Budget increase will mean to our schools and their pupils, outlining four further major steps we shall be taking.
"First, I can made this pledge today. We shall bring to an end the scandal whereby children in 600 of our schools, most of them primary, still have to go outside in order to use the toilet. Tens of thousands of children have to go outside to use facilities which often date back to the Victorian age. That is simply unacceptable in the last years of the 20th century. We are inviting the authorities affected to apply for a share of the extra £35 million which we are earmarking so that they can provide the decent facilities that every modern school should have. By next year we shall have ended the scandal of outside toilets forever. It will take our schools from the Victorian age into the age of the new millennium.
"Secondly, I am concerned at the number of schools which have inefficient boilers and heating systems which often break down. They waste energy and leave thousands of children spending their winter days in cold and draughty classrooms. We shall provide an extra £15 million which will allow up to 500 schools to replace or improve their inefficient heating systems. That will make classrooms more comfortable and learning-friendly places, save a great deal of money which is now being wasted and bring environmental benefits, including reduced carbon dioxide emissions. As many as 100,000 children will have, at long last, the kind of working conditions which they should be able to take for granted in a civilised society.
"Thirdly, we have already announced the first £22 million to provide the extra teachers to ensure that we make an immediate start on our class-size pledge, which will mean that by 2001 every five, six and seven year-old is in a class of 30 or under. That first tranche will mean that 100,000 infants will benefit from September this year.
"When we announced that funding, redirected from the phasing out of the assisted places scheme, we made clear that there would be extra money to build extra classrooms where they were needed. Today, I
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can announce that there will be an extra £40 million from the Budget which will be targeted specifically on providing those extra facilities during 1998–99. This extra funding will help us to deliver our core pledge on class sizes. Doing so will help us to meet our demanding literacy and numeracy targets.
"These three capital spending measures will be in addition to the £250 million from the new deal for schools to be allocated in 1998–99 and additional to the £800 million which LEAs and schools are spending in the normal way on repairs and maintenance this year.
"And there is a fourth piece of good news on schools from the Budget. I can further confirm that we shall be expanding rapidly our education action zones programme. We shall fund a five-fold increase to establish 25 zones by January 1999. We have already had considerable interest from imaginative partnerships between schools, LEAs and business at a local level.
"The zones offer extra flexibilities in order to help schools in challenging circumstances to meet demanding targets and to make significant improvements in standards and in expectations. By making a substantial expansion in the coming year, I am confident that we shall be able to extend the programme yet further in the lifetime of this Parliament.
"Taken together, this is a coherent programme which will help the process of transforming schools for the future. It means: no more children having to go outside to use the toilet; improvements in the heating of schools; substantial further progress to meeting our class size pledge; and a big boost to our flagship programme of education action zones.
"In the years ahead, we will meet our manifesto commitment to increase the proportion of national income spent on education. We are making a substantial start in the year ahead. By doing so, we are transforming the life chances of millions of children. We are modernising the fabric of our schools. And we are making real progress in raising standards for all our children. A New Labour Budget. A Budget for a modern Britain in a new century. A Budget to turn ambition into achievement".
My Lords, that concludes the Statement.
6.40 p.m.
Baroness Blatch: My Lords, I was persuaded earlier today to take this Statement later than usual. I was not particularly happy to do so, but nevertheless I agreed. I believe that the noble Baroness, at the time the Statement was due, was in the Division Lobby, and that is understandable.
I stayed in the Chamber throughout the whole of the last amendment on the grounds that discussion on any amendment can end at any time; that votes are not always pressed; and, indeed, it looked for one moment as though the amendment was not going to be pressed. The noble Baroness was not present in the Chamber throughout any of that time, and, in the event, it would have been possible for somebody on the Government

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Benches to have either suggested waiting one or two minutes for the noble Baroness to return to the Chamber, or for some cursory—even if only very cursory—discussions to have taken place with me indicating that we were pressing on with the Bill. I have now had to postpone an important engagement in order to deal with this Statement.
Lord McIntosh of Haringey: My Lords, I listened carefully to what the noble Baroness said. She knows that I have already apologised on behalf of the Government for the delay; I have not apologised on behalf of my noble friend Lady Blackstone, who has done nothing wrong.
The noble Baroness, Lady Blatch, knows that a Division is called because there are those who shout "Not-Content". It was those on the Opposition Benches who shouted "Not-Content", including the noble Baroness. It was their responsibility to put in Tellers. They failed to do so. As a result, there was understandable confusion and my noble friend Lady Blackstone was entirely within her rights to be in the Division Lobby. She considered the matter to be important. It was also right for the Deputy Speaker when the vote was negatived, to carry on with the business. I do not believe that any further apology is called for from anybody on this side of the House and I hope that the noble Baroness will feel, on reflection, that she has been fairly treated.
Baroness Blatch: My Lords, in the course of making my statement I said that I understood and understand that the noble Baroness could not have been here; she was in the Division Lobby. I am saying that, because she was in the Division Lobby and her colleagues knew that, it was possible for us to have waited no more than one minute for the noble Baroness to return.
Lord McIntosh of Haringey: My Lords, it is a decision of the Chair.
Baroness Blatch: My Lords, I have been in that position before and, on behalf of the Government, I have asked for an adjournment for one or two minutes. That is always possible from the Chair. The Chair has no instructions if they are not given.
However, no apology is forthcoming and it is no more than I expected. But perhaps I can say also that, to add insult to injury, I learnt the details of this Statement this morning from journalists. It is not unusual for me to do so because that is happening on a regular basis. The details of the Statement were made widely available to journalists. In fact, the first details of the Statement came very early this morning on Radio 4.
There is considerable confusion. I hope that the noble Baroness will address some specific questions to clear up that confusion resulting from the Chancellor of the Exchequer's Budget Statement, taken together with the Statement today. I should like to quote from the Budget speech when the Chancellor said,
"Over £100 million extra will he allocated in the coming year to tackle the skills gap in Britain".—[Official Report, Commons, 17/3/98; col. 1103.]
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The Chancellor then said at col. 1112,
"We are determined to improve education all round, so I am allocating for the coming year to education an additional £250 million".
The Statement today refers to an extra £250 million, which is part of the money already pledged last year. The Statement makes that clear—£35 million extra to improve toilet facilities; £15 million extra to improve heating systems; £40 million extra for the class size pledge. It goes on to state that those three pledges were in addition to the £250 million already pledged.
On 2nd July last year, (at cols. 315 and 316)—at the time of this Government's first Budget—£1 billion was earmarked for education from reserves; £1.3 billion was to be made available over the course of the whole Parliament. That was to be allocated in the following way: £83 million for this year, 1997–98, and £250 million for each of the following four years. My specific question therefore is: what spending referred to in the Budget speech and in the Statement today is part of that £2.3 billion? What expenditure announced today is new money and what is the source of any new money?
Higher inflation during the current year has cost local authorities around £1.2 billion on the education budget. The changes to taxation dividends in the July 1997 Budget are also estimated to have cost local authorities up to £300 million. Does not the noble Baroness agree, therefore, that the additional moneys of £1 billion from reserves and £83 million allocated this year of the £1.3 billion, does not compensate the authorities for such a loss? If the noble Baroness agrees, will she explain what capacity and from what source local authorities will meet such pressures caused specifically by measures set out by the present Chancellor of the Exchequer?
While referring to the measures set out by the Chancellor of the Exchequer in the Budget, perhaps I can ask what the cost implications are as a result of changes to the national insurance contributions paid by the employer for schools and local education authorities which employ staff earning above £23,000 per year. The noble Baroness will know—indeed, it was widely welcomed—that £1,000 was allocated to each school throughout the country in this financial year to meet the cost of extra books. What was the source of that money? Was it top-sliced from local authorities' total budgets?
With all the financial changes since the July Budget, what is the percentage increase in real terms and the increase in cash terms that has been made available to local education authorities in 1997–98 and 1998–99? That is one question about which the noble Baroness will probably need notice but the rest of my questions are pertinent to the Statement today.
As a result of announcing an additional £40 million, can the noble Baroness now confirm that the money released from the assisted places scheme was, as was widely predicted, not sufficient to fund the class size pledge? While on the subject of measures in the Chancellor's speech, perhaps I can refer the noble Baroness to education action zones. Let me say right away that I welcome more innovation in education. I welcome more private sector involvement, though, as

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the noble Baroness may understand, I shall have more to say about the detail of that policy when the Bill comes before the House.
My understanding is that five of the action zones are to be up and running by September, which is a mere 22 weeks away. I understand also that a further 20, as a result of the Statement, are to be up and running by January 1999—just 38 weeks away. I say nothing about the complexity of such arrangements—to be discussed later on the Bill—with regard to proper consultation, the views of parents of children attending each school in the action zone and the detailed contracts which will have to be made, including very complex financial arrangements, with the private sector.
However, this policy has only recently been presented to Parliament. The Bill has not even completed its stages through another place. It has yet to be discussed and considered for approval in this place. There are no draft regulations in existence which support these proposals. The closing date for applications to become an education zone is tomorrow. Decisions as to which schools will become action zones will be approved by the end of April. Is it not astounding arrogance on the part of the Government to be pre-empting so blatantly both Houses of Parliament in this way? How can the noble Baroness—I hope she will tell the House—and her right honourable friend the Secretary of State justify the statement, and I quote:
"I can further confirm that we will be expanding rapidly our education action zones programme".
On whose authority?
Will the noble Baroness list the local authorities which continue to have schools with outside toilets? I agree with the noble Baroness and her right honourable friend the Secretary of State that it is right to wish to see an end to all outside toilets. However, as a past county council leader I am conscious that there was a wide variation in the way in which local authorities managed their capital programmes. Often those with the greatest backlog of repairs were those which had not managed their financial programmes very well. Therefore, some of this expenditure could be seen to reward inefficiency. Is it the Government's intention, irrespective of the level of inefficiency and irrespective of the track record of an authority, that they shall be rewarded if they continue to have schools in their area with outside lavatories?
Welcome though it is when any government find additional funds to address problems such as better sanitation, improved heating systems and smaller classes, these proposals further erode local authorities' power to determine their own priorities in their own areas, and in many instances will reward the poorest financial management in local education authorities.
6.52 p.m.
Lord Tope: My Lords, I thank the Minister for repeating the Statement. Personally, I was content to wait a few minutes longer to hear the Statement, although I share the concern which has been expressed here and in another place that its contents were so widely known early this morning.
I was not quite clear whether the noble Baroness, Lady Blatch, was or was not welcoming the contents of the Statement. I say quite clearly that I do welcome the contents of the Statement. It is scandalous that in this day of the information superhighway literally thousands of our children under 10 years of age still have to go outside to use the toilet. It may well be that after 18 years of Conservative government the noble Baroness, Lady Blatch, felt a little constrained to give too warm a welcome to that. But I feel no such constraint.
I welcome the additional money for improved heating. As the leader of an LEA, I have some experience of such matters. I know that building maintenance, whether in schools or elsewhere, is always the easy cut to make each year. But I think we all know that the accumulative effect of so-called easy cuts each year becomes more and more serious. Local authority associations predicted a year or more ago that a sum in excess of £3 billion additional money would be necessary to bring school buildings up to an adequate state of repair. This is a small step in that direction; it is nevertheless a welcome step.
We welcome the move to provide the additional classrooms that will be necessary to reduce class sizes. We regret that it is limited only to infant classes, although that in itself is welcome. There is a recognition that the money from the assisted places scheme is not enough to meet this. I can only echo the statements made by others, including the noble Baroness, Lady Blatch, that we told you so. It is nevertheless still welcome.
As has been said, we shall be debating education action zones in the not-too-distant future when the Bill comes to the House. I know that they have been welcomed by my colleagues in the other place.
I have some specific questions which I think are directly pertinent to the Statement and which I ask as the leader of a local authority that happens to be a local education authority. I know that these are questions which I shall be asked in the morning. The Statement gives the impression that this is real money being given to LEAs by a generous Government. I ask the Minister specifically: are we talking here about cash grants, or are we talking, as I suspect we are, about permission to borrow—credit approvals? Are we saying therefore that LEAs will have permission to borrow this money, with the consequent effects that that will have on revenue budgets through debt charges?
I understand that this is to be a bidding process. Although I am not surprised, I am disappointed by that because bidding inevitably means a lot of work, raised expectations and then, for many, some disappointment. I am little confused. The Secretary of State has made a clear commitment to end outside toilets by next year.

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Does that mean that every LEA will be entitled to receive the money necessary to remove the outside toilets—presumably to provide inside toilets? Is there sufficient money? On average it costs about £58,000 per school. That does not seem to me sufficient in all cases.
Will it be a condition of the application that the LEA will be required to contribute towards such costs? Will there he an upper limit for each grant, or, as is more likely, for the permission to borrow that is going to come? As I said, one of the problems with bidding is that a lot of work goes into preparing the bids and no one is too sure what the outcome will be. Will the Government be publishing the criteria against which they will be judging those bids so that at least LEAs know what they are aiming for when submitting the bids?
I believe I am correct in saying—perhaps the Minister can confirm this—that the closing date for bids for this money or permission to borrow is 30th April, which is just six weeks away. If that is correct, can she tell us when the announcements will be made? I am sure she will recognise that that is particularly pertinent because much of this necessary work, especially if it is to be done before next winter, will have to be done during the school summer holidays, which begin in the middle of July. Can she assure us that announcements on successful bids will be made in enough time to enable LEAs to do all the work that is necessary to bring the contractors in to carry out this work during the school holidays?
Lastly on bidding, I have a concern which I have expressed before in your Lordships' House about those good local education authorities, regardless of political control, that have managed their capital programmes well, as the noble Baroness, Lady Blatch, said; that have made education a priority; that have long since removed outside toilets; and that have, it is to be hoped, despite all the difficulties, tackled questions of heating and so on. Are they once again to lose out because the money is being provided inevitably to meet need and some LEAs have for years failed to meet that need themselves? What are the Government going to do to ensure that good LEAs are not further penalised in this way?
Finally, the Statement is about schools' funding. I am certain that the Minister shares my concern and the concern of other noble Lords that there seems to have been nothing in the Budget for lifelong learning. When does she expect to make a Statement about additional funding for further education?
6.58 p.m.
Baroness Blackstone: My Lords, the noble Baroness, Lady Blatch, was, I am very sorry to say, unable to welcome the Statement which provides substantial additional funds to ensure that our schools are brought into the last part of the 20th century and do provide hugely better conditions for both young people and teachers. That is important if we are to improve standards of education and the conditions in which people work. I am very grateful to the noble Lord, Lord Tope, who was able to welcome the Statement in that respect.
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The noble Baroness, Lady Blatch, referred to a great many different figures and quoted, if I may say so, rather selectively from the Chancellor's Statement yesterday. I think she has confused a number of different elements of the Government's new budget proposals. It might be best to write to her to ensure that she fully understands the wider context for today. What I have spoken about today is the new—and it is new—£90 million of expenditure on a package of important measures to improve the quality of our school buildings. That is the focus of today, plus a small sum of additional money to allow education action zones to be increased in number. I very much look forward to debating with her some of the issues that she has raised on education action zones and class sizes when the Bill comes into this House.
The Government, under the new deal for schools, were able to provide last year an additional £1.3 billion of capital for the UK as a whole and £1.085 billion for England in order to deal with the high priorities of repairing, renovating and replacing in many of our schools, where there is an appalling backlog of urgent repairs which need to be done. The noble Lord, Lord Tope, referred to a backlog of £3 billion. Of course, that depends on how one defines what needs to be done but the Government figure is £4 billion.
So far as recurrent spending is concerned, the Government were also able to provide an additional £835 million above the planned expenditure for 1998–99 in the announcements that were made in July of last year. I think that this additional money is greatly welcomed, not just by teachers, not just by local education authorities, but also by the hundreds of thousands of parents who have children in our schools.
The noble Baroness asked what the implications of the national insurance increases would be on local education authorities as employers. I cannot give her the precise figure and I am happy to write to her about that. They do have a very substantial improvement in the amount that they have for recurrent expenditure, as I have just indicated.
The noble Baroness also asked about the assisted places scheme and whether the abolition of that scheme provides sufficient additional resources to fund the class sizes pledged. What the Government have always said is that that would provide adequate funding for the recurrent needs of bringing class sizes down, but the Government never said that they would provide enough money for the capital side. The additional £40 million that we are able to make available today is making a start on the whole issue of trying to provide adequate classroom provision to ensure that no child aged five, six or seven is in a class with more than 30 children.
The noble Baroness asked whether it was right that we would be getting five education action zones off the ground by September with a further 20 in January. I can confirm that that is our intention and that the date for applications ends tomorrow. The noble Baroness suggested that the Government are pre-empting both Houses of Parliament. May I say that the Government have inherited a situation in which we believe that standards of provision in a variety of respects in our

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primary and secondary schools are not good enough? We want to try to encourage exciting and interesting innovation. That is what education action zones will do. Of course, they will not be able to be established until after the legislation is through.
The noble Baroness also asked about which local education authorities are still running primary and secondary schools with outside lavatories. I obviously cannot give her a complete list. I am happy to write to her about that. There are some 600 schools—
Baroness Blatch: My Lords, I am grateful to the noble Baroness. If I may return to the action zones, the noble Baroness in the Statement has said that the Government will be introducing them and they will be expanding them. My question was not that I did not welcome them. In fact, I made quite a point of saying that I welcome innovation and welcome the involvement of the private sector. What I asked the noble Baroness for was authority for saying at this stage definitively that they will do something which has not yet been determined by another place and has not even started to be determined by this place.
Baroness Blackstone: My Lords, it is clear that it is the Government's intention to develop education action zones in the interests of the education of children and young people in this country. That is something that has been widely welcomed. I am very glad that the noble Baroness has welcomed the concept.
If I may come back to the subject of schools with outside lavatories, I shall write to the noble Baroness and give her a list of those authorities. I can say that for the most part they are shire counties and in particular the schools in question are likely to be in rural areas. But it is the intention of the Government to get rid of all outside lavatories.
The noble Lord, Lord Tope, also asked whether there was any intention to penalise those authorities that had handled their capital well. Of course not. We have no wish to penalise authorities in that way but we also do not want to see children penalised because they happen to live in authorities, mainly shire counties, which have not resolved this problem. There are all kinds of difficulties if small children are asked to use outside lavatories, including, these days, the particularly serious one of security. It is important that we put money into the system to deal with that as soon as possible.
The noble Lord, Lord Tope, also asked whether this would be real money for local education authorities, and I can say yes, it will be. They will be 100 per cent. grants. The Government believe that that is important. There will be a bidding process but it is important to allow LEAs to identify exactly what their needs are, and a bidding process is needed in order to do that so that the Government can sensibly allocate the funds that are needed.
The noble Lord also asked about the closing date. It is 30th April because we want to get on, but there will be enough time left to local education authorities to do
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this work and to do it, for the most part, in the school holidays, although it may be necessary to do some of it in term time.
Finally, the noble Lord asked about lifelong learning. There is an additional £100 million in the Chancellor's announcement for our skills agenda and we will be saying more about that next week. I should also add that the Government have been able to provide an extra £100 million for further education before the completion of the Comprehensive Spending Review and an extra £165 million, as I think he knows, for higher education, again before the completion of that review and above the targets that were originally set by our predecessors.
Baroness Blatch: My Lords, before the Back-Bench debate begins, can the Minister tell the House the source of that £90 million?
Baroness Blackstone: No, my Lords. It is not possible to state the specific source. It is from revenue collected by the Treasury.
7.9 p.m.
Lord Hunt of Kings Heath: My Lords, I welcome the Statement which my noble friend has repeated, and particularly the Government's intention both to reduce class sizes and to improve the fabric of our schools. Nothing is more depressing and demoralizing for students, parents and teachers than to have to operate in schools with poor facilities. Outside toilets must be a strong indicator of such poor facilities.
Will my noble friend encourage schools to use some of the additional resources that they will be receiving to improve the quality of the supervision of children during playtime periods? I have become concerned about the lack of experienced and suitably qualified supervisors at playtimes and particularly at lunchtime. It is not at all surprising that bullying, which we see in so many of our schools, occurs at lunchtime. I should be grateful if my noble friend could give me some hope in that area.
Baroness Blackstone: My Lords, the Government recognise that bullying can do enormous long-term damage to children. Some takes place during breaks or at lunchtimes; some occurs on the way to or from school and some in the classroom. It is important that there is adequate supervision of children during lunch breaks, especially for younger children. I shall take back my noble friend's point and see whether we can do further work to ensure that schools provide adequate supervision. I believe that most schools take this matter seriously and I very much hope that some of the additional recurrent funding that we have been able to provide will allow them to do so.
Baroness Maddock: My Lords. I welcome the Minister's Statement. Having had daughters who attended a school with outside toilets and having campaigned on that for a number of years and been horrified that members of the county council did not even know that there were outside toilets in their schools, may I say from the heart that what the noble Baroness has said pleases me no end?

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However, perhaps I may press her further on the point raised by my noble friend Lord Tope. The Minister told us that the closing date for the bids will be 30th April. When will the announcement of the successful bids be made? We on these Benches are concerned that the work will need to he done in the summer holidays, and that that is a very tight timetable.
Baroness Blackstone: My Lords, I cannot give a precise date for the announcement of the successful bids. I am not sure that it is yet known. If I am wrong on that, I shall write to the noble Baroness immediately and, if I am right and the date has not yet been finalised, I shall let her know as soon as it is.

Crime and Disorder Bill [H.L.]
7.13 p.m.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 84:
Before Clause 28, insert the following new clause—
("Trial procedure for rape and indecent assault
TRIAL PROCEDURE FOR RAPE AND INDECENT ASSAULT
.—(1) A defendant charged with a rape offence or an offence of indecent assault shall not personally ask questions of a complainant in the course of a trial related to the charges.
(2) In this section—
"complainant" means a woman or man upon whom, in a charge for a rape offence or an offence of indecent assault, it is alleged that rape or indecent assault was committed, attempted or proposed; and
"a rape offence" means any of the following, namely rape, attempted rape, aiding, abetting, counselling and procuring rape or attempted rape, incitement to rape and conspiracy to rape.").
The noble Baroness said: My Lords, this new clause would introduce a prohibition on defendants in trials of rape and serious sexual offences personally cross-examining their alleged victim. As I have observed before, this is a sensitive and problematic issue which is of vital importance to those victims who suffer the trauma of rape and indecent assault.
I spoke to this amendment in Committee on 12th February and I am grateful to all who have subsequently written to me indicating their support, and particularly to those who act on behalf of the victims of rape, including those who counsel them at the Old Bailey. At that stage I withdrew my amendment and I had not intended to table it at Report. Therefore, I feel that I should explain to the House why I changed my mind and am moving it today.
When the noble and learned Lord, Lord Falconer of Thoroton, responded to my amendment on 12th February, he referred (Hansard, col. 1357) to the interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system, including a consideration of ways to prohibit unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. He said then that the group
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would meet again in March and hoped that it would report soon after. Today, on the previous amendment, he told us that it has had its last meeting.
On the basis of what the noble and learned Lord said in Committee, I decided that it would be proper for me to seek the opportunity to debate the issue in depth outwith the context of this Bill and after the publication of the report to which the Minister referred. I am grateful to my noble friend Lady Byford for tabling a Motion for debate in the form of an Unstarred Question.
I decided to bring the amendment back on Report only when I read stories in the press 11 days ago of a statement made by the Home Secretary on that subject. I have not been able to find any reference to his statement on the Home Office website nor in its official press releases. The Home Office told a House of Lords Library researcher that the statement was made in an interview with The Times. The Home Secretary told The Times that men accused of rape are to be barred from cross-examining their alleged victims in court under new laws. He said that witnesses would also be protected from prurient questioning by banisters, a subject mentioned on the previous amendment which was tabled by noble Lords who, at the moment, are to my right, which seems an odd way of describing them.
I was puzzled that what seemed to be impossible one week when I suggested it—humble though I am—was suddenly possible the next week when the Home Secretary not only suggested it, but stated that it would happen. I welcome that part of his statement which refers to my amendment—I say that without reservation—but I should like the Minister to explain how the Government have changed their mind about their objections to my proposal. As they have obviously changed their mind, I ask them whether they will accept my amendment now. If the Minister is still worried that I do not provide an alternative method by which witness evidence is tested, I should, of course, be happy to return at Third Reading with an amendment suitably worded to achieve that objective.
I shall not abuse Report procedure by attempting to repeat at length the arguments that I put in Committee to justify my amendment, but I invite the Minister to answer a point that I made in Committee which he did not seem to address then; nor has he answered it since. I argued that the principle of having the right personally to cross-examine the alleged victim had already been breached in English law and that, as far as I was aware, there was not any evidence that we had thereby breached the European Convention on Human Rights. I referred the Minister to Section 34A of the Criminal Justice Act 1988 which provides that a defendant shall not cross-examine in person any child witness who is the alleged victim of certain offences, which include rape and indecent assault. Does the Minister agree that it is possible and acceptable, in principle at least, to extend the Section 34A provision to adult victims of rape and indecent assault?
The Home Secretary's proposals are far more radical and wide-ranging than mine. Of course, I expect that he carefully considered the evidence and advice available to him before announcing such important proposals

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publicly. Therefore, I invite the Minister to consider whether it is possible to accept my more modest amendment today. If it is not possible, I invite the Minister to explain why the alleged victims of such crimes must, it seems, wait another year before the Government take the course which they have already decided to adopt. I am sure that the Government would not wish to delay any longer than absolutely necessary any measure that would introduce such provisions. I beg to move.
Lord Goodhart: My Lords, as I indicated in my speech on the previous amendment, my party now supports the amendment just moved by the noble Baroness, Lady Anelay. It does not necessarily have the unqualified support of all my noble friends but it has my support and I encourage the Government to accept it. The jurisprudence of the European Court of Human Rights makes it clear that a restriction of this kind on the rights of a defendant in person does not contravene the European Convention on Human Rights. There have been a number of cases over the past two or three years in which the rights of a defendant in person have been abused.
It is in any event absolutely clear that anyone who is charged with an offence as serious as rape is either deeply misguided or malicious if he decides to defend himself. It is essential that legal aid should be provided. I take it that that is implicit in the amendment and that legal aid will be provided to any defendant who is denied the right to defend himself, except in the very exceptional case where the defendant is sufficiently rich to be able to afford to pay his own legal expenses. In those circumstances, we believe that this amendment is justified. There are other matters that can be added to it. There is a possibility that if a defendant absolutely refuses to instruct counsel to appear for him the judge may he able to appoint an amicus curiae to examine the complainant and put the questions that can properly be put to her. The principle underlying this amendment is one that I fully support. I hope that the Government will see fit to accept the principle if not the precise wording.
Lord Ackner: My Lords, before the noble Lord sits down, perhaps he can assist me in regard to Article 6(3)(d) of the European Convention on Human Rights. That provision gives to everyone who is charged with a criminal offence the right to examine, or have examined, witnesses against him. I can find nothing in the convention that in any way prohibits a person from acting on his own behalf. There is nothing to oblige him to accept lawyers to act for him. Can the noble Lord inform the House of the jurisprudence of the European Court of Human Rights that supports what is proposed in the amendment, which would otherwise breach Article 6(3)(d)?
Lord Goodhart: My Lords, there is a decision of the European Court of Human Rights which states specifically that the defendant does not necessarily have the right to appear in person provided that he is able to instruct a lawyer, or is provided with the finance to do
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so. The case relates to a decision of a German court. I do not come armed with the name of that case, but I shall be happy to write to the noble and learned Lord and provide him with that information.
Lord Ackner: My Lords, I thank the noble Lord.
Lord Monson: My Lords, I was not present when this matter was debated at Committee stage, so I apologise if the argument that I am about to advance has already been made. Although the status quo is on occasion unsatisfactory and unfair to the victim, one wonders whether this amendment tilts the balance a little too far the other way. I note that some of the press shares that view. A man who is convicted of rape is certain to spend a long time in prison even if the rape is non-violent or involves a last-minute change of mind on the part of the victim. Therefore, it is extremely important to ensure that the conviction is 100 per cent. safe. Surely some compromise can be found to permit the trial judge to intervene much more rapidly and decisively when the cross-examination by the defendant becomes aggressive and offensive.
Viscount Tenby: My Lords, I rise to support the amendment very ably moved by the noble Baroness, Lady Anelay. In recent years the country has been disturbed by the spectacle of defendants in rape cases conducting their own defence and subjecting the victims to prolonged cross-examination, probably often for reasons of sexual gratification. I understand very well the strong feeling among practitioners in the law so admirably expressed by my noble and learned friend Lord Ackner about the right of a defendant to conduct the cross-examination of the alleged victim. However, it is the duty of the presiding judge to ensure that matters do not get out of hand. Perhaps that is what has gone wrong in the past. Nevertheless, I too have understood from the media that something is to be done about it, possibly in another criminal justice Bill next year. But if even one victim suffers in this way in the intervening period it is surely one too many. I beg the noble Lord the Minister to look at the matter again with his customary compassion and respond favourably to this amendment.
Lord Lane: My Lords, there is a dilemma here, is there not? On the one hand it is intolerable that defendants should be allowed to cross-examine rape victims interminably over hours and sometimes days. Recent examples have been paraded before us. On the other hand, if it is by any means possible, a defendant should always be allowed to represent himself and conduct his own case and should not be forced, if he can be, to accept legal representation.
Is there a way out of this dilemma? I suggest that there is. It appears to have been overlooked by judges and others that it is the judge at trial who is in charge of the case. It is his task to see that justice is done and that the proceedings are conducted in fairness to both sides. Plainly, cross-examination of the kind that we have read about is neither just nor fair. Accordingly, it is the judge's right and duty to see that such cross-examination and behaviour stops, and he can do

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it. If necessary, he can invite the jury to retire while he explains to the defendant the proper limits of cross-examination in terms of time, relevance and brevity of questions and number of questions. Then or later he can, if necessary in the absence of the jury, tell the defendant that if he goes on he will be stopped; or he may be given a period of time during which cross-examination can take place and beyond that time further cross-examination will not be permitted.
I believe that that is the way out and it is not necessary to have any statutory intervention to solve the dilemma. Provided the judge acts justly and fairly in any particular case, as one expects he would, without doubt his actions would, if necessary, be upheld by the Court of Appeal (Criminal Division). It is perhaps a great pity that the occasion has not arisen for that court to pronounce upon this matter. No doubt very shortly it will do so, but in the interim I respectfully suggest that this amendment is unnecessary.
7.30 p.m.
Lord Thomas of Gresford: My Lords, I endorse what the noble and learned Lord said a moment ago. I intervene just to prevent any criticism of the trial judge. In the first of the two cases about which I know, which attracted considerable publicity, the judge was, and is, an experienced, competent and caring lady with a considerable reputation for the way in which she conducts her court. When that unique, as it was for her, situation arose, she was faced with a dilemma: did she intervene with the defendant to the point where the jury thought that she was entering into the arena, and therefore would take a view hostile to the judge, and more in favour of the defendant, thereby raising the possibility of miscarriage of justice, or, could she be sure that a robust intervention at an early stage would have carried with it the support of the Court of Appeal? As the noble and learned Lord the former Lord Chief Justice said, it is a situation which has never come before the Court of Appeal.
In Committee and today your Lordships have heard from senior members of the judiciary that that latter fear need not have concerned the judge; that she would have had the full backing of the Court of Appeal had she taken the robust view that I am sure she would have wanted to take in that case. I say nothing, one way or another, about the merits of the amendment, but I am concerned that her reputation is maintained, as it most certainly should be.
Lord Meston: My Lords, this is an important amendment, because a few cases attract a large amount of publicity, and cause a great deal of distress to the victims of rape involved in those cases, and also have a tendency to deter other complainants of rape from reporting the matter to the police.
As has been explained in an interesting article in the Journal of Criminal Law for February 1998, there can be a direct conflict—sometimes acute—between, on the one hand, the need to protect the dignity of the victim, and, on the other hand, the fact-finding process in which
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the prosecution has to prove its case beyond reasonable doubt, and in which the defendant has the right to test the evidence against him.
The amendment would not be necessary if judges were confident that there was power firmly to curtail cross-examination. Like my noble friend, I know the two judges in the two most recent notorious cases, and was frankly surprised that neither of them, whom I know to be firm but fair, felt able to curtail the cross-examination which attracted such publicity in the press. It is for that reason that I suspect that there is insufficient guidance on their ability to curtail cross-examination from the Court of Appeal at the moment.
Of course the matter does not stop there, because, as the noble Baroness, Lady Anelay, said, it must be looked at now in terms of the European Convention on Human Rights. In Committee, reference was made to the case of De Oliveira. which, as I understand it, was concerned with a judge stopping a defendant's personal cross-examination in a case involving a child. That of course is not on all fours with a case involving adult rape. Nevertheless, it is important that any development in that area of the law so far as concerns us is compliant with the convention, not merely from the point of view of the defendant but from the point of view of the victim, because, in the article to which I have just referred, mention is made of a victim of such cross-examination called Julia Mason, who waived her anonymity after her harrowing six-days' cross-examination by her attacker, to take her case to the European Court of Human Rights.
Unfortunately I do not know, and have had no opportunity to discover, what has happened to that case. Clearly there is, as has been pointed out, not least by the noble and learned Lord, Lord Lane, a dilemma which is now heightened by the need to comply with the European convention. This is a matter which requires a great deal of thought which needs to be undertaken urgently.
Lord Ackner: My Lords, I agree entirely with what my noble and learned friend the former Chief Justice said. I do not believe that what he said—except that it was said more eloquently—differs from what I said in Committee. This situation is a novel one. To deal with novel situations, we usually have to have new techniques.
I can well understand any judge realising that if he has to intervene frequently in front of a jury, he runs the risk of the jury thinking that he is biased against the defendant. I do not know how the two judges referred to handled the cases. It may well be that they did not take advantage of a judge's discretion to ask the jury to retire and then to handle the matter in the retirement.
There is no difficulty in discovering—one should know it before the case starts—what is the nature of the defence, and what are the likely issues. With the jury outside, a sensible conversation can take place with the defendant with the judge saying, "What is it that represents your defence? Tell me what you are seeking to establish." That having been said, back comes the jury, and the cross-examination then begins. If the

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cross-examination becomes an abuse of the right to cross-examine, then the jury is sent out yet again, and the matter is dealt with on the basis, "You must not cross-examine in that way". As my noble and learned friend Lord Lane said, a time limit can be placed upon the cross-examination.
There is no danger of the judge being rebuked, or the trial aborting in any way, so long as the judge has acted fairly. He can act both firmly and fairly. I instanced on the previous occasion that the self-same problem has arisen in civil cases where there has been a suggestion that the judge was not entitled to give limited time for cross-examination or limited time for argument. There is not the slightest doubt that in civil matters the judge is entitled to run the case as he thinks appropriate, so long as he acts fairly. That is why one should wait to see what emerges from the Court of Appeal (Criminal Division).
What I suspect is happening—it accounts for the silence—is that that Court of Appeal, very understandably, likes to illustrate what are the correct principles, by having a case or cases brought before it so that it can then link its wisdom to the particular case or cases. While that is being waited for, it would be premature to seek to put forward an amendment as narrow as this. For those reasons, I continue to resist the amendment.
Lord Falconer of Thoroton: My Lords, the amendment, as we are all aware, was provoked originally by the awful cases where rape victims were cross-examined interminably in person by unrepresented defendants. The Government, and the whole House, have repeatedly made clear their determination to ensure that vulnerable witnesses, including rape victims and victims of serious sexual assault, should not have to endure such an experience.
As the House is aware—I mentioned it on the previous occasion and again earlier today—in order to take forward our manifesto commitment to provide greater protection to victims of rape and other serious sexual offences, we established in June last year an interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system. That group has been specifically asked to consider ways to prevent unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. The group met on a number of occasions and had its final meeting on 13th March 1998. The result of its work will be reported to Ministers soon.
The new clause proposed by the noble Baroness provides for a mandatory prohibition on defendants in rape and indecent assault trials personally cross-examining the victim. It makes no provision for arrangements to enable the victim's evidence to be tested. As your Lordships will appreciate, in rape trials in particular it is the victim's evidence which is normally crucial and in the interests of justice it is important that any solution addresses that matter.
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Clearly, as many noble Lords said, it is important to balance the needs of the victim and his or her right not to be subjected to this type of treatment with the right of the defendant to a fair trial. The working group has been examining that issue in the broader context of the other measures being considered to provide greater protection to vulnerable or intimidated witnesses.
Obviously, we must take account of our obligations under the European Convention on Human Rights for the reasons given by the noble and learned Lord, Lord Ackner, during our previous debate on the subject. As regards the state of the jurisprudence, the De Oliveira case is about children where the balance might be regarded as being struck differently. There is also a case called Croissant v. Germany, referred to by the noble Lord, Lord Goodhart, when replying to the noble and learned Lord, Lord Ackner. It is not on all fours, but it gives some indication that preventing an unrepresented defendant from cross-examining would be allowed. At this stage, I am not in a position to answer the noble Baroness's question as to whether we say that it would definitely be allowed under the European Convention on Human Rights because further advice will be required. However, there are indications—I go no further than that—that it would be allowed.
Various noble Lords, in particular the noble and learned Lords, Lord Lane and Lord Ackner, pointed out that the matter can be dealt with simply by judges being more robust in their handling of trials by ensuring that there is not oppressive cross-examination by an unrepresented, or any, defendant. I do not believe that one can be so confident that that would be the position, particularly having regard to the fact that the incident reported in the press a few weeks ago was not isolated. I make it clear that this Government remain committed to measures which, consistent with the interests of justice, protect victims of rape or serious sexual offences from direct cross-examination by the defendant.
I am not aware that my right honourable friend in another place has said anything inconsistent with that approach; namely, that that is the aim of the Government and a working party is considering ways in which it might be achieved. My right honourable friend has gone no further than that and I note that the noble Baroness did not refer to any direct quote to the contrary. There is no inconsistency between the position I made clear in Committee and the position I have made clear again today. The matter is under active and urgent consideration and in the light of those assurances I hope that the noble Baroness will withdraw her amendment.
Baroness Anelay of St. Johns: My Lords, I thank all noble Lords who have taken part in this brief debate. I shall not press the matter to a Division tonight. Issues have been raised which we can more suitably explore when we have an opportunity to debate them both on an Unstarred Question and in the criminal justice Bill. The Home Secretary stated unequivocally to The Times that in that Bill the Government would introduce measures of the nature I outlined. The statements which he made to The Times, as opposed to a Statement to this House,

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related to policy and legislation to be introduced. I look forward to those matters being brought to the House for debate.
I thank the noble and learned Lord for his courteous reply and for taking us a little further in relation to the European Court of Human Rights. I appreciate his comments and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Northern Ireland Arms Decommissioning Act 1997 (Amnesty Period) Order 1998
7.45 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs) rose to move, That the draft order laid before the House on 2nd March be approved [25th Report from the Joint Committee].
The noble Lord said: My Lords, we have placed copies of a draft decommissioning scheme in the Library and the Printed Paper Office and, I understand, copies have been circulated to various of your Lordships who take a special interest in Northern Ireland affairs. I hope that this will illustrate the practical side of decommissioning and assist your Lordships in discussing the draft order.
I shall first make a few introductory remarks to place what is a rather technical order in context. This Government believe that resolution of the decommissioning issue in a manner satisfactory to all sides is a key part of the process of negotiations.
We wish to see, as part of the ongoing efforts and to build confidence on all sites, the decommissioning of some paramilitary arms as progress is made in political talks. There is no doubt that the ultimate resolution of this issues will need to be addressed in framing the political settlement to which we are now moving ever closer. Of course, this is a matter which is being discussed elsewhere. But decommissioning, and the draft order we are discussing today, is an integral part of the process of negotiations.
That is why successive governments, both here and in the Irish Republic, have co-operated closely over the past two years to put in place arrangements to enable voluntary decommissioning to take place. We have always recognised that decommissioning on the lines envisaged is essentially a voluntary activity. We cannot force people voluntarily to decommission.
The repulsive sectarian attacks we have witnessed recently; the murder of two young men in Poyntzpass on 3rd March and the subsequent murder of one of the suspects for that crime; the no warning mortar attack on Armagh; and most recently another no warning bomb
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attacks on a youth club in Lame only renew our determination to find a settlement. Decommissioning must form part of this settlement.
I pay tribute to the vigilance of the security forces in preventing death and destruction at Armagh and for their work in seeking out those responsible for perpetrating these crimes. There will be no let up in this area. I should also commend the efforts of the Garda Siochana in recent weeks who have had numerous successes in preventing attacks and uncovering terrorist weapons.
The draft amnesty period order fixes the maximum duration of any amnesty period identified in a decommissioning scheme. During an amnesty period, a person who decommissions arms in accordance with a scheme benefits from an amnesty in respect of the offences set out in the schedule to the Northern Ireland Arms Decommissioning Act 1997.
I emphasise that the order does nothing more than set the maximum duration of the statutory amnesty. It is the non-statutory scheme (which spells out the details of how arms are to be decommissioned) which will set the actual dates of the amnesty. We will do so once a paramilitary group has indicated a willingness to disarm. Sadly, no group has yet done so.
The order is needed because the 1997 Act requires any amnesty period to end before 27th February 1998. Without this order we could not presently set up a decommissioning scheme because, though non-statutory, the scheme is required by the 1997 Act to set out the amnesty period.
The effect of the order before us is that any amnesty period identified in a decommissioning scheme must end before 27th February 1999. It is important that the Government be in a position to implement any scheme without delay. That is why we are bringing forward the order now rather than waiting until there is a proposal for actual decommissioning.
The draft scheme circulated to your Lordships shows how decommissioning could take place. It gives effect to proposals for decommissioning schemes made by the Independent International Commission on Decommissioning. This commission is chaired by General John de Chastelain and has Ambassador Donald Johnson and Brigadier Tauno Nieminen as members. I welcome this opportunity to record the Government's appreciation of their work. The effective and efficient manner with which they carried out their remit and the process of consultation engaged in by the commission has resulted in proposals for decommissioning schemes which were endorsed by the participants in the Talks Liaison Sub-Committee and the two Governments.
As was the case at other stages of this process, there has been close and ongoing consultation between the British and Irish Governments. I hope the draft scheme helps to show some of the practicalities behind the short order we are debating.
In conclusion, as stated earlier, decommissioning of the kind envisaged in the arrangements before us today is a voluntary exercise. It is not in the Government's gift to say when decommissioning will occur. As soon as there are indications that a paramilitary organisation

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is prepared to commence decommissioning, we shall immediately give effect to an appropriate scheme. This order will enable us to do so without delay.
In the meantime the security forces will continue to search out illegal arms and bring before the courts those found in possession of them. We are determined to pursue every option open to us to rid our society of the large quantities of arms concealed in the community and whose presence poses such a threat to stability and public safety.
The two Governments have, with the invaluable help of the independent commission, played their part in ensuring that all the necessary practical arrangements to enable decommissioning are in place. This order is a vital part of those arrangements. I commend it to the House. I beg to move.
Moved, That the draft order laid before the House on 2nd March be approved [25th Report from the Joint Committee].—(Lord Dubs.)
7.53 p.m.
Lord Cope of Berkeley: My Lords, as the Minister has made clear, this is a short, simple order with a limited purpose but about a topic of the very first importance. The decommissioning of weapons is at the core of the peace process. The Secretary of State called it the base line of the peace process not long before she became the Secretary of State. The Minister said this evening that it played a key part in that process. We all agree with that.
Without it, the talks process and, if it is to become one, the peace process will be essentially unstable at best and probably ineffective altogether. It is quite right that the Government, building on the Act which the previous government put before Parliament, should put in place the decommissioning scheme and should pass this order to enable that to happen when the moment comes. I entirely support the tribute which the Minister paid to those who have worked hard to put the scheme into the form in which it now is under General John de Chastelain.
Of course, what is really required is the political will to put it into practice. That can come only from the paramilitaries on both sides. The original idea was that decommissioning should start before the talks began. That was the original proposal. Then we were told that decommissioning would take place during the talks: it would be progressive and would get going during the talks. The talks are in the final stages and we are now told that there has been no decommissioning. This evening, by this order, we are extending the deadline of the proposed amnesty.
The so-called "loyalist" paramilitaries claim to be reactive only. If the PIRA did not exist, they would not exist. I am sure that we all believe that it depends on the settlement that is reached whether that doctrine holds, but as regards decommissioning, the loyalist groups would certainly have even less excuse for having weapons if PIRA did not. The whole purpose is to have a scheme for the mutual decommissioning of all terrorist weapons.
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Sinn Fein still pretends that it is separate from PIRA. If one goes along with that for the sake of argument, whether the shooting and the bombings stop depends on PIRA and not Sinn Fein because PIRA has the weapons. The real question in all our minds at the moment is whether PIRA wants peace. Decommissioning is the test of that. To break down the question into its constituent parts: do PIRA bosses want peace and if so, can they deliver it; would their followers follow their lead? Even some token decommissioning would help to answer those questions in the affirmative. As it is, so far we must assume that the answer is no. I wonder sometimes whether the PIRA bosses realise how important even token decommissioning would be, or would have been, at the beginning of the process. Handing in a weapon or two or a pound or two of Semtex would have changed the atmosphere of the talks for the better. It would not have made much practical difference, as we all know, because they are known to have sufficient stocks of weapons in any event. However, it would have improved the atmosphere, but they were not even prepared to make such a gesture.
As it is, far from handing them in, PIRA weapons have been used very recently, as the Minister reminded us, particularly in the recent mortar attack, it seemed, where the technical details of the attack seem consistent only with PIRA weapons having been used. At present we cannot tell whether that attack was the work of a break-away group or some terrorists still under command. But either way, it was a vivid demonstration of the importance of decommissioning.
Like the Minister, I pay tribute to the RUC and the Garda Siochana for the work that they have done in enforced decommissioning; that is, the discovery of arms. That is another very effective way to remove them from the scene.
We are told that the talks process is coming to an end. The Minister said that none of the groups has been prepared so far to commence decommissioning. Can the Minister tell us, because it is a crucial part of our consideration on how the peace process is going, whether the groups are anywhere near being ready to implement it? Have there been any indications within the talks process that decommissioning will be part of any settlement? If it is not, I do not believe that that settlement would be satisfactory to anybody. But at the same time, we have so far had no indication that that is the way that this particular aspect of the talks process is moving.
Obviously, I support the order and I hope that the decommissioning scheme which has been worked on so carefully is able to be put into effect.
7.57 p.m.
Lord Thomas of Gresford: My Lords, from these Benches, perhaps I may also express appreciation of the work of the international body—Senator Mitchell, Hari Holkeri and General de Chastelain—who have made a substantial contribution to political progress in the Province. It was their report in 1996 which initiated the approach to decommissioning and in August 1997, as a result of their work, the British and Irish Governments

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were able to assign the necessary independent International Commission on Decommissioning. In September, General de Chastelain was appointed chairman and Ambassador Johnson and Brigadier Tauno Nieminen were appointed members. They have refined even further the ideas which had been previously expressed. We congratulate them on achieving a major step in the peace process by producing the draft decommissioning scheme. It is not only impartial but it is seen to be impartial. That is largely due to their hard work and integrity in approaching their task.
As noble Lords have said, the purpose of the order is to renew the amnesty period set out in Section 2(2)(b) of the Act. The effect of an amnesty will be the statutory suspension of the criminal law. That is a major step. Such a step must not be taken in the mere hope that the process of decommissioning will take place.
There should be no advance in the suspension of the criminal law until there is a positive move by one or other of the paramilitary organisations. The Act is a framework only as is the draft decommissioning scheme now put forward. The real test will be whether the paramilitary organisations will demonstrate their willingness to get rid of their weapons and dismantle their organisations. I have to say that it is not encouraging that so far we are told that not a single paramilitary organisation has come forward.
We must hope and pray that the ongoing talks succeed. It is possible that the two governments and the active participants may be only weeks away from an historic settlement. Indeed, it will be historic because it will express the will of the vast majority of the people in Northern Ireland to bind up the wounds of what is an unhappy and divided society. Essential to the healing of those wounds is the issue of trust. The paramilitary organisations can express their own consent to a settlement by an act of trust by the surrender of their arms. It is crucial to a successful settlement in Northern Ireland that trust be re-established in the democratic process. As the forum for the resolution of dissension, discord and differences, trust rather than the gun must rule. But will the paramilitary organisations take that step or do they delight not in the building of a united society but in the infliction of death and pain for its own sake? This is an opportunity for those organisations to demonstrate that they mean what they say. They have their ideals before them—whatever they may be and whatever form of society they see—but let it be a democratic society. They should avoid their constant connection with the pain, death and suffering which have been inflicted for so long on the people of Northern Ireland.
Although the draft decommissioning scheme is still in draft, I should like to make one or two comments upon it. The notion of a "contact person" as set out in paragraph 4 of the scheme, and as described in later paragraphs, is commendable. The military structures of most paramilitary groups lend themselves to one individual being directly responsible for the decommissioning. If that should happen, it would help to establish responsibility on that person and his accountability to the commission.
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I hope that there will be scope for informal discussions between such a "contact person" and the commission before the machinery of the scheme is set in motion by the giving of formal notice under paragraph 7. The conditions in the scheme are necessarily expressed in rather general terms; for example, paragraph 9 says that the contact person,
"shall provide the Commission with such information as it may require".
The words are mandatory: the contact person "shall provide" information. But although the nature of the information to be provided is illustrated by some specific examples in the scheme, the final expression of those illustrations—namely, that the contact person "shall provide" any other "information" required by the commission—sounds to my mind somewhat heavy handed and may give rise to some suspicion. Informal discussions beforehand will allow clarification and will put an end to any fears which may arise about the information to be provided.
Confidentiality is referred to in paragraph 26 and is to be welcomed. We hope that the need for confidentiality will not hamper the release of good news. Above everything else, what Northern Ireland needs is good news. This legislation must not hinder publication of successes. If a single paramilitary organisation comes forward to start the process that will be a victory. It will not be a victory for one side or the other; it will be a victory for common sense, for agreement and for rational compromise over bigotry and extremism. This legislation must work and must be seen to work. The Government may he assured of wholehearted support from these Benches.
8.4 p.m.
Lord Molyneaux of Killead: My Lords, I am sure that we are all grateful to the Minister for the way that he presented the order this evening. We were sorry that, for understandable reasons, he was not able to be with us on Monday when the Statement on the prison murder was repeated in this House. However, it may console the noble Lord to know that he was very ably represented by the noble Baroness, Lady Farrington, who now sits beside him. In fact, if I were in the noble Lord's position, I would start worrying about job security.
I take some responsibility for the idea of an international decommissioning body because I was leader of the Ulster Unionist Party when we submitted the idea and the proposal on how the process of disarmament and decommissioning should proceed. I suppose that I was personally influenced by my experiences in Europe at the end of the Second World War. The dangers in accepting surrenders were brought home to me most forcibly on that occasion, when my wing commander and I were ordered by the Supreme Commander, General Eisenhower, to impose his conditions on 9,400 Luftwaffe officers and men at an air base at Flensburg near the Danish frontier. One young German pilot, who was obviously very hysterical, stepped out of the surrender queue, drew his pistol and shot directly at the wing commander and myself. Fortunately the shot went between us. The young man was, unfortunately, shot dead by his own commandant.

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which came as something of a relief to us, given the fact that we were in something of a minority at that gathering.
However, there were problems in a wider sphere. German servicemen were most reluctant to part with their firearms, which they wished to retain for the purpose of defending themselves against the Russians, although the war had in fact ended a few days earlier. Then, dyed-in-the-wool Nazis had their own reasons for defying the conditions of surrender and decommissioning. We also had to cope with various resistance movements in several countries, many of which had, unfortunately, set aside their noble aspirations and were determined to stake out their claims for a position of authority in the post-war world.
The average British and American serviceman was not trained in the arts of diplomacy. So, eventually, a control commission was established. That commission succeeded because the Supreme Commander insisted, first, that disarmament must precede all else; and, secondly, that the disarmament commission be broadly based.
When Ken Maginnis and I put those proposals to the last government, we expected—and still expect—those principles established in 1945 to become the necessary precondition for a lasting peace. In 1945 the Allied governments recognised that peace could not be firmly established until all the warmongers were disarmed. Again, in 1945, decommissioning the mines as opposed to the weapons—for example, of SS divisions—would not really have done much to establish real peace in Europe—neither will it neutralise modern thugs and murderers and prevent them inflicting much suffering on all of us at the moment.
Similarly, real democratic structures cannot take root in the absence of disarmament. I believe that there has been general agreement among us on that point this evening. That was also recognised by Mr. John Hume, the leader of the SDLP (the main nationalist party), when he declared that elected representatives cannot sit down with men who have guns on the table, guns under the table and guns outside the door. Therefore decommissioning cannot be what is called loosely a confidence building measure if there is no co-operation nor reciprocity.
If and when decommissioning takes place, there must be progress reports at intervals. I am at one with the noble Lord, Lord Thomas, that confidentiality is important. If there is a perception remaining that the operation is simply bogus, confidence in the ranks of the law-abiding people of Northern Ireland will be nil. If the general public are to have confidence in the scheme, there is everything to gain from the disclosure—as the noble Lord has said—of the amount of hardware and munitions surrendered. I say sincerely that in the next six weeks the Government will have to be clear and honest with the electorate. I should be grateful if the Minister can provide some guidance on this aspect of confidentiality.
I am sorry to have to say that there can be no justification for the current hype about there being an agreement within our grasp. That is the phrase that is tossed around rather unthinkingly. It simply is not true. It may sound good at Washington receptions but realities
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are not being faced and that is the simple truth. Ten days ago it might have been possible to persuade people to the contrary, and (even in the absence of proof) that a miracle might have happened. That hope of an agreed lasting solution was demolished by Mr. Adams only last week when he announced that Sinn Fein/IRA regards the present talks and the referendum as a mere phase in an ongoing process which will deliver an all Ireland republic.
It was always the understanding of all of us who supported the talks from the beginning, and it was the clear understanding of all who bravely participated in those talks, that there was an aim to achieve—and the hope that this would be achieved—a lasting settlement. We are now told on the highest authority of Mr. Adams that that is not so. We are told that the talks and a referendum on the outcome are a first phase and simply the beginning of a longer and far more dangerous process. He will no doubt accept and pocket any concessions made during what he calls phase one and then drive on to his subsequent phases using the muscle power of the IRA and/or one of its many subcontractors.
Her Majesty's Government and Parliament may soon be forced by paramilitaries to understand the damaging effect of Mr. Adams's phased strategy, particularly—as noble Lords have said—with no decommissioning in sight and no decommissioning at the conclusion of the current talks in perhaps four to six weeks' time.
I hope that I can bring some cheer to noble Lords when I say sincerely that together our Government and all right thinking people and all of us in Parliament will be wise from this moment to do something to lower expectations and abandon what I have called the high wire act of negotiation, which has never succeeded in all the attempts made during the past 38 or so years, and seldom succeeds anywhere else whether in Israel or some other part of the world. Having, I hope, reduced the temperature by so doing, we can then begin the ongoing progress which will stop the unelected continuing to usurp the role of the elected.
8.14 p.m.
Lord Dubs: My Lords, I thank noble Lords who have contributed to the debate. I shall try to deal with the specific points that have been made. I thank the noble Lord, Lord Cope, for his support for this measure and generally for the positive comments that he made. He asked whether there had been any indications that decommissioning was likely in the near future, or that some of the paramilitaries were about to embark on a decommissioning process. We very much hope that the paramilitary organisations and their counterparts in the talks process will see the benefits of decommissioning. Certainly the Government hope that some decommissioning will take place. However, I must repeat what I said earlier; namely, we cannot force anyone to decommission; we cannot insist. We must leave it to the paramilitary groups voluntarily to decommission their arms. In that way we shall know that those people have truly accepted the democratic path. Sadly, there is no indication that they are willing to do so at the present time.
I also thank the noble Lord, Lord Thomas, for the supportive comments that he made. He asked one or two specific questions based on what I think he called the

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heavy handed requirement for information by the decommissioning body. The scheme requires that information will be given to the commission because there is an overriding need for the commission to ensure public safety. We cannot have a situation where paramilitaries are destroying their weapons in such a way that that process itself endangers public safety. There are also considerations of verification that decommissioning is actually taking place as opposed to a claim that it has happened.
We have to make the provision of information mandatory because the commission must be satisfied that the "contact person" genuinely wants to decommission. Otherwise there would be the possibility of abuse of the provisions of the 1997 Act, in particular the amnesty and exemption from forensic testing. Therefore the commission must he able to insist on certain information being provided. On the other hand the commission—the noble Lord paid tribute to its members—understands the realities of this all too well. I am confident that in this situation the commission will achieve the right balance between information that it needs and not being too heavy handed or bureaucratic in its approach. I assure the noble Lord that we have confidence in the way the commission will carry out its task and proceed without falling into the trap that he has indicated.
The noble Lord, Lord Molyneaux, indicated that he has experience of decommissioning and knows how it works based upon his responsibilities in the immediate post-war period. I welcome the positive contribution he made to this debate by giving us examples of the difficulties that may arise for the commission. He asked about confidentiality. It is important that information be protected if paramilitary groups are to have confidence that decommissioning will not result in their prosecution. This was one of the recommendations of the Mitchell Report, upon which we have based our approach to decommissioning. However, we must also ensure that verification is made clear and unambiguous. The noble Lord also referred to a comment made by Gerry Adams. A number of participants in the talks have made comments from time to time which have not been all that positive and have given other people doubts as to whether we shall achieve a successful outcome.
Lord Molyneaux of Killead: My Lords, I am grateful to the noble Lord for giving way. I think the point that was also made by the noble Lord, Lord Thomas, was that there needed to be some release of information as regards the scale of the surrender, decommissioning, or whatever we may call it. Otherwise, there will be no public confidence in the procedure and there will be no perception that it is working. That is the point that is being made.
Lord Dubs: My Lords, I understand what the noble Lord says and I appreciate the importance of it. I think that is a point that the commission will have to take on board: it will have to make sure that as part of the process the participants in the talks and the general public are kept in the picture as to what is happening. I take the point that, if it is happening secretly and no one knows that decommissioning is taking place, there will he a lack of confidence in the process.
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I was talking about comments made by some of the participants in the talks to which the noble Lord referred. Reference has been made to the way Gerry Adams views the process. Frankly that is not the way that we see it. We have as our ultimate aim peace, prosperity and reconciliation in Northern Ireland. That has to be our aim. It is the outcome that we seek in the talks.
I conclude by again thanking noble Lords for their helpful and positive comments, which the Government will bear in mind as we proceed with these matters. I am sure that the commission will also hear them in mind in regard to its responsibilities.
On Question, Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.45 p.m.
Moved, That the House do adjourn during pleasure until 8.45 p.m.—(Baroness Farrington of Ribbleton.)
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.20 to 8.45 p.m.]

Crime and Disorder Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 29 [Local provision of youth justice services]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 85:
Page 22, line 17, leave out ("established under section 3 of the Police Act 1996").
The noble and learned Lord said: My Lords, with the leave of the House I shall speak to Amendments Nos. 86, 94, 95 and 96. This series of technical amendments provides that for the purposes of Clauses 29 to 33 of the Bill "police authority" should have the same meaning as in Section 101(1) of the Police Act 1996. As presently drafted, the narrower definition in Section 3 of the 1996 Act is used, which excludes the police authorities for the Metropolitan Police and the City of London Police (that is, the Home Secretary and the Common Council of the City of London respectively).
This is anomalous. The Government consider that the police authorities for London should be covered in the same way as police authorities outside London in respect of the new youth justice arrangements established under Clauses 29 to 33. These include the duty to co-operate with local authorities in the provision of youth justice services and youth offending teams and the requirement to be consulted by local authorities in the formulation of youth justice plans. A similar amendment was made to Clause 17 at Committee stage. I beg to move.
On Question, amendment agreed to.
Clause 30 [Youth offending teams]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 86:
Page 23, line 23, leave out ("established under section 3 of the Police Act 1996").
The noble and learned Lord said: My Lords, I have just spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 87:
Page 23, line 40, leave out ("with").
The noble and learned Lord said: My Lords, I spoke to this amendment on the previous day of Report stage. I beg to move.
On Question, amendment agreed to.
Lord Northbourne Lord Northbourne moved Amendment No. 88:
Page 24, line 3, at end insert—
("(7) The Secretary of State shall reimburse to the relevant police authority, probation service, health authority and local authority for the reasonable cost of providing persons to be members of a youth offending team, and of fulfilling the duties imposed upon youth offending teams by subsection (6) above.").
The noble Lord said: My Lords, I believe, as I think many noble Lords do, that this is an important Bill. Clauses 29 and 30 are particularly important. If they work properly, they will be of enormous benefit not only to the youth justice service but also to the young people involved. I tabled this amendment because I am concerned that the Government are in danger of falling into the same trap as the previous administration fell into in relation to the Children Act.
That Act was an innovative and important piece of legislation. It contained a number of new elements, and a number of new duties and responsibilities were laid upon local authorities. However, little or no provision was made for funding. What happened was that some local authorities did their best to ignore the obligations laid upon them; others simply robbed Peter to pay Paul. That is why, today, in many local authorities there is virtually no youth service. That is why playing fields have been sold off. There are few outdoor activities, and school visits and residentials scarcely exist in primary schools and are much rarer in secondary schools.
The Bill also imposes substantial new duties, not only on local authorities but on the Probation Service, the health services, the police and so forth. As I understand it, the obligations that a youth offending team will have to undertake include assessment and intervention; work in support of police remands and warnings; the supervision of community sentences; ensuring that there is an appropriate adult service; the provision of bail information; bail supervision and support; the placement of young people in open or secure accommodation; remand fostering and approved lodgings during the pre-trial period; court work and the preparation of reports; and involvement in through-care and undertaking post-release supervision following a custodial sentence. Other duties may also be imposed on youth offending teams by the Secretary of State.
As to funding, the government proposal appears to be that teams and associated youth justice services will be established and operated on the basis of the resources available in 1999–2000 to the local authority, social services and education departments, the Probation Service, the police and the health authority, and according to the pattern of responsibilities for youth justice work which is determined by the chief officer's group and set out in the youth justice plan. In other words, they are going to have to do that out of the money they have.
That seems unrealistic. Let us take the Probation Service, for example. The service has suffered funding cuts in real terms over the past two years, and another cut is envisaged in the forthcoming year. The Probation Service, on average across the country, uses only 10 per cent. of its resources on young people under the age of 18. Many of the duties under the provisions of this Bill will require the Probation Service to spend many more resources on persons under the age of 18. How will that be funded? Will it be by cutting back on the services to the 18 year-olds and older? I should be grateful for an indication from the Minister.
I declare an interest as chairman of the children's department at Toynbee Hall. Last week, the worker who runs the youth department—we have only two full-time workers—came to me and asked whether it would be appropriate for him to put his name down as a possible member of a youth offending team. I had to say yes, as he is a man who would do the job enormously well. But how are we going to manage to carry on our existing work if he is taken away from us for perhaps one or two days a week to operate in connection with a youth offending team?
Of course, if the measures in the Bill eventually succeed, there will be economies in other areas of youth justice which may enable local authorities, the police and the Probation Service to deploy fewer resources in other areas in order to fund the services envisaged in the Bill. But there is a timing difference. Those advantages will happen only when the provisions of this Bill have started to work. Therefore is the Treasury prepared to pump prime? The Treasury does not have a very good historical record on prevention. It is not keen to spend a penny today even if it will save a pound tomorrow. I hope that even if the Minister cannot accept the amendment as it stands, he might be prepared to say, "Yes, the Treasury is a party to this Bill. Yes, the Treasury has made the commitment that it will make this Bill work", and say that it will provide the pump-priming finance that is needed to make it work. I beg to move.
The Earl of Mar and Kellie: My Lords, these two amendments bring us face to face with reality. The proposed youth justice system will work only if it is properly staffed and paid for. Nothing will be worse than if this scheme of useful intervention were to start out with an inadequate budget. The various authorities involved will all have to put in several members of staff. Those members of staff are already doing statutory work in the main, and the switch to this new, more extensive work has to mean that the existing tasks will be given

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less priority. Not only will there be a requirement for more resources in the conventional sense of money; there will also be a need for new ideas. Training and development work will be needed if the new regime is to intervene effectively in the lives of those committed to it by the youth courts. I have to hope that there are lots of ideas held latently by those who will staff the youth offending teams.
I agree with the noble Lord who introduced the amendment that since the 1960s we have seen the rise and subsequent demise of the youth service. There now seems to be little hope for outdoor education, certainly in the statutory sector. The only hope now seems to be lottery funding. I must record that that has occurred in Clackmannanshire satisfactorily. However, that is an affront to the principle of additionality. The need for financial and intellectual resources to be put in place prior to the start leads me to support the amendment.
Lord Henley: My Lords, I rise merely to say that the noble Lord, Lord Northbourne, has made a very good case. I trust that the Government will be able to explain what extra resources will be available, whence those extra resources will come, and how much the Government think it will be necessary to provide to make sure that the Probation Service is appropriately funded for the new duties that are to be imposed upon it.
Baroness Thomas of Walliswood: My Lords, I wish briefly to add my voice in support of the noble Lord, Lord Northbourne. I do so as someone who has served on a local authority and on a hospital trust, and I am currently a member of a probation committee. I support the noble Lord's points in relation to the Probation Service. The cuts in the base budget that the service has suffered amount in some cases to 20 per cent. of its total annual expenditure. That means that it is already having to take money away from one area of work to keep another going. It also means that new initiatives, such as special care for drug offenders and so on, are increasingly difficult to maintain. I therefore hope that the Government will he able to say how they propose, in a situation of actual falls in base budgets, to ensure that the work that is so valuable coming out of this Bill can he carried out.
9 p.m.
Lord Hylton: My Lords, I support the amendment moved by my noble friend Lord Northbourne. Perhaps I can illustrate the kinds of things that happen at present by referring to two Written Answers to Parliamentary Questions which I have recently received, both signed by the noble Lord, Lord Williams of Mostyn.
The first concerned advisory services to asylum seekers. Under the previous government there was something called "spend to save", whereby money was paid out in order to gain future savings. This provided something, like £1/2 million a year to one specialist advisory body helping asylum seekers to present their cases, either at first instance or at appeal. This is to be cut back—virtually eliminated, I believe—in the coming
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financial year, although in this case the backlog of unheard and undecided asylum applications remains very large.
The second Answer concerned the savings expected to come from the prevention of crime generally, whether youth crime, adult crime or any other kind of crime. I do not have the Answer with me but I shall try to give the gist of it from memory. It was that in this case there was no system for estimating future savings and, once they had been achieved, for reallocating them between different government departments and between central government, local government and other statutory bodies.
Those examples both indicate an unsatisfactory situation which I hope the Government will be able to address, particularly in the context of the Bill.
Lord Falconer of Thoroton: My Lords, the amendments standing in the name of the noble Lord, Lord Northbourne, propose the creation of central funding arrangements for youth offending teams, with the Secretary of State reimbursing to the relevant local agencies the costs of providing members of the teams.
The Government understand the concern which has been expressed about the availability of resources for youth offending teams. We do not consider, however, that central funding arrangements are appropriate for these teams.
The Government intend that youth offending teams should bring together existing staff and services on a more effective interagency basis, building on current interagency arrangements in many areas. We believe that youth offending teams should be established and operated on the basis of the resources available to the local authority, the probation service, the police and the health authority and according to the pattern of responsibility for youth justice work which is determined locally by those agencies and set out in the youth justice plan formulated under Clause 31. This will preserve local ownership and accountability and encourage partnership between the relevant agencies. The Government consider that such a locally-based approach is more practicable than one which would require central government to consider the assessment made of local need and the resources required to meet it.
The Government acknowledge, of course, that where additional work is to be undertaken there is a case for additional resources, and the requirement for these must be properly evaluated before the new provisions are brought into force. Chapter 10 of the White Paper No More Excuses set out the Government's view of the resource implications of the youth justice measures contained in the Crime and Disorder Bill. There was an element of spending to save in relation to that.
Most of the youth justice services which will have to be provided locally should already be in place and, in some areas, interagency working is already being implemented within existing resources. Our proposals will ensure more effective interagency planning and provision of services, bringing together all those who can make a contribution to tackling youth offending.

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We are, however, assessing the resource implications of the new services which will be required—for example, to deliver the final warning scheme and the new court orders, the reparation, action plan, child safety and parenting orders. We shall be piloting these new measures, some of which will build on, and in some cases replace, existing disposals and provision. We shall also be piloting the youth offending teams. The pilots will enable the costs and savings associated with the provision of youth justice services and youth offending teams to be assessed in advance of nationwide implementation. The outcome of the pilots will then help inform decisions over the timing of full implementation of these measures.
I hope that, in the light of this reassurance, the noble Lord, Lord Northbourne, will not press the amendments which stand in his name.
Lord Northbourne: My Lords, I shall not press the amendment, not because the noble and learned Lord has convinced me but because I believe it would be a waste of your Lordships' time at this hour.
The noble and learned Lord said, "No", that these things have to be funded out of the existing resources of the various organisations, the local authorities, the probation service, the police, and so on. I believe that the Government are living in an unreal world. I refer again to Tower Hamlets, about which I know a little. The interagency working is being cut back because the organisations, including the police, are very strapped for money. The police youth service has been virtually wiped out in Tower Hamlets in the past five years.
The only comfort I can glean is that the noble and learned Lord said that there will be pilot schemes. I believe the Government will come in for a nasty shock as to the additional resources needed, at least on a pump-priming basis. It may be that in five years' time the benefits of the Act will feed through and the need for funding will reduce, but in the initial period there will be a need for funding. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Youth justice plans]:
[Amendment No. 89 not moved.]
Clause 32 [The Youth Justice Board]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 90:
Page 24, line 45, at end insert ("and
(iv) the steps that might he taken to prevent offending by children and young persons;").
The noble and learned Lord said: My Lords, in moving Amendment No. 90, I shall, with the leave of the House, speak also to Amendments Nos. 91 and 93. As my noble friend Lord Williams of Mostyn explained in responding to an amendment at Committee stage on 12th February moved by the noble Baroness, Lady David, the Government believe that the welfare of children and young people is directly concerned with preventing offending by them.
These amendments build on the crime prevention foundations already in the Bill by extending the remit of the Youth Justice Board for England and Wales under Clause 32 to enable it to take a view on the steps that might be taken to prevent youth offending and thereby promote the welfare of the children and young people concerned. They also reflect the role which the youth offending teams established under Clause 30 will be able to play in work to prevent youth offending.
The main business of youth offending teams will be work with known offenders. However, Clause 31(3) already enables youth offending teams to undertake work to prevent youth offending and for that to be included in the youth justice plan formulated by the local authority under Clause 31(1). That will allow local authorities which have a duty under paragraph 7(b) of Schedule 2 to the Children Act 1989 to take steps to encourage children and young people not to commit offences, and the other local agencies flexibility as to the relative involvement in preventive work of the youth offending team and the agencies themselves, including the local authority social services department.
Given its function of monitoring the work of youth offending teams, the Government consider it appropriate that their possible role in preventing youth offending should be reflected in the functions of the youth justice board under Clause 32(5). The Government also consider that, to complement its role in monitoring the operation of the youth justice system under subsection (5)(a) and advising the Home Secretary on how the new principal aim of that system of preventing youth offending might most effectively be pursued under subsection (5)(b)(ii), the youth justice board should be able to offer advice on what might be done to prevent young people becoming involved in crime and entering the youth justice system in the first instance.
Amendment No. 90 therefore amends the board's advisory functions under Clause 32(5)(b) to include the provision of advice on the steps that might be taken to prevent offending by children and young people. Amendments Nos. 91 and 93 extend the board's function under subsection (5)(d) to obtain information from the relevant local agencies—local authorities, police authorities, probation committees and health authorities—to cover information to inform its advice under subsection (5)(b).
The youth justice board's exercise of those functions will be subject, under Clause 32(7), to directions and guidance given by the Secretary of State. That should ensure that the work of the board in relation to preventing youth offending complements the Government's overall approach to crime reduction. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 91:
Page 25, line 3, after ("(a)") insert (", (b)").
The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 91. I beg to move.
On Question, amendment agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 92:
Page 25, line 13, at end insert ("and
() themselves to commission research on the introduction into the youth justice system of childrens' panels to replicate for England and Wales the relevant provisions of Part III of the Social Work (Scotland) Act 1968.").
The noble Earl said: My Lords, Amendment No. 92 has the purpose of bringing the principles of the children's panel system into the new youth justice system. I am pleased to have the opportunity to bring the much-admired but never copied Scottish children's panel into a head-to-head debate with the proposed youth justice system.
The children's hearings are the product of the Kilbrandon Report and form Part 111 of the Social Work (Scotland) Act 1968. As a social work student in 1968 I recall a briefing on the Bill by the senior civil servant adviser for that part of the Bill.
I have attended both the juvenile court in England and children's hearings with social work clients and their families, often collecting them to ensure their attendance and so preventing an adjournment. The children's hearings can be convened within a day of an offence being committed. I believe that that is a "fast-track" procedure.
At the children's hearing the family, the three panel members, the reporter and the social worker sit at a table together and do not leave it until a decision is reached. There are no adjournments while the Bench sorts out its decision. At the beginning of the hearing the child and the parents are asked if they accept the grounds of referral. The reporter to the children's panel will have received a report that the child is either in need of statutory measures of care or that an offence has been committed. If the family accepts the grounds of referral, the hearing proceeds to deal with the child's future. If the family does not accept the grounds of referral, the hearing is adjourned and the family assents to the sheriff in chambers for an approved hearing.
The case in chambers is led by the reporter and, once the sheriff has determined that there is a case to answer, the family is sent back to the reconvened children's hearing. If the sheriff finds the case not proved, then that is an end of it. The same panel members will see the case through to the eventual discharge and any supervision requirement made. The proceedings are as informal as possible and, though obviously a formal event, are more likely to allow the family to participate than in a formal court setting. The single table, the equal chairs and the small room are conducive to achieving the philosophical aim of doing the best thing for the welfare of the child.
I recall appearing with families in the English juvenile court. The setting was that of any other court room. Though the magistrates were specially selected, they still sat "up there" on the bench. If we were lucky, we would be called forward with the family to stand below the bench and speak at reasonable proximity to the magistrates. Otherwise, the family had to discuss the issues across the open formal court. I accept that that
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description came from my personal experience in the 1970s, but I wonder whether it has changed much since then.
The amendment would require the youth justice board to establish a judicial procedure similar to a children's hearing. This would lead to a less formal and more future oriented process in which the child and the family would have a greater and more meaningful part. The rapid response of the initial hearing, being within a very short space of time, has considerable merit. The treatment plans can be implemented very speedily except where the grounds of referral are not accepted. In my experience, the grounds of referral are usually accepted. This means that there is not a requirement to prepare for prosecution beyond the receipt of evidence. It is here that the fast track is achieved; that is, by not having to go through due process unless insisted upon. I beg to move.
9.15 p.m.
Lord Falconer of Thoroton: My Lords, this amendment would give the youth justice board the function of commissioning research on the introduction into the youth justice system in England and Wales of the system of the children's panel which operates in Scotland. We are keen to look at and learn from the effectiveness of the Scottish children's hearings system. Research commissioned by the Scottish Office is expected to be completed later this year. This research includes a study into decision-making in the children's hearings system, and a three-year longitudinal study examining outcomes for a cohort of children referred to reporters, who have been described by the noble Earl in 1995.
The Scottish system has a number of positive features. In particular, that system appears to benefit from a clear separation of decisions about guilt from decisions on disposal. An equally important feature of the Scottish system, however, is that it operates entirely outside the criminal justice system. It also considers care and protection issues as well as cases which involve offending. It cannot therefore simply he replicated within the framework of the criminal youth court system in England and Wales.
The Government's plans for reforming the youth court are designed to ensure that its structure and procedures are clearly directed at changing offending behaviour. In particular, our longer term proposals for reform are designed to provide a new opportunity for those appearing before the younth court for the first time to be dealt with following conviction by a new youth panel. The panel would be responsible for agreeing with the young person a "contract" which would be enforced by the youth court. The contract would ensure that the young person made amends to the victim or the community at large and would tackle the causes of their offending behaviour.
We believe that the reforms we have proposed will help to shape a more effective youth justice system for England and Wales for the next century. Our approach combines the principles of restorative justice—of restoration, reintegration and responsibility—with more

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traditional punitive measures, which must be available to the courts in order to protect the public. The result should be a more streamlined and effective system, with a clearer focus on preventing offending.
The terms of this amendment have caused us to reflect on the scope of the youth justice board's functions under subsection (5)(f), (g) and (h) of Clause 32. As currently drafted, these enable the board to identify and promote good practice in the operation of the youth justice system and the provision of youth justice services; to make grants to local authorities and other bodies to develop, or commission research into, good practice in working with young offenders; and itself to commission such research.
We have concluded that these functions need to be broadened so that the youth justice board is able to identify and promote, and make grants and commission research in respect of, good practice both in the operation of the youth justice system and the provision of youth justice services and in relation to work to prevent offending by children and young people. This would enable the board to commission research of the type proposed by the noble Earl.
The Government intend to bring forward amendments to this effect at Third Reading. I hope that, in the light of what I have said, the noble Earl will not press his amendment.
The Earl of Mar and Kellie: My Lords, it is not often that I receive an answer like that, or should I say so favourable an answer as that. I am particularly grateful for the favourable description of the children's panel system with its fast track, informality and participation which are considerable features of it. From 1968 until now is so many years that I hope we do not have to wait quite so long to decide whether or not we think that the youth justice system was working well.
The noble and learned Lord has said that he hopes to bring forward other amendments. I am grateful for that and willing, therefore, to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 93
Page 25, line 26, after ("(5)(a)") insert (", (b)").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 94:
Page 25, line 37, leave out ("established under section 3 of the Police Act 1996").
On Question, amendment agreed to.
Clause 33 [Supplementary provisions]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 95 and 96:
Page 25, line 41, at end insert ("and this section").
Page 26, line 2, at end insert—
(""police authority" has the meaning given by section 101(1) of the Police Act 1996:").
The noble and learned Lord said: My Lords, I have already spoken to these Amendments. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 40 [Powers of magistrates' courts exercisable by single justice etc.]:
The Deputy Speaker (The Viscount of Oxfuird): My Lords, we now come to Amendment No. 97 in the name of the noble Lord, Lord Dholakia—
Lord Williams of Mostyn: My Lords, without being discourteous to the noble Lord, Lord Dholakia, perhaps I could be of assistance. There are a number of grouped amendments here and I can put it generally, if I may, but it is the Government's intention to meet the requirements or the requests of the movers of Amendments Nos. 97, 98, 99, 100, 103, 101, 102, 105 and 104, not in entirety but generally. It may he helpful, therefore, if I simply indicate what the Government's view is. That may or may not satisfy the various movers; the noble Lords, Lord Dholakia and Lord Goodhart, and the noble Baronesses, Lady Anelay and Lady David. I am advised that the noble Lord, Lord Dholakia, should move the amendment formally before I make any rejoinder to something he has not said.
Lord Dholakia Lord Dholakia moved Amendment No. 97:
Page 31. leave out lines 22 to 24.
The noble Lord said: My Lords, the Minister has been very kind to me in the past, and I am sure he intends to be so again. I beg to move.
Lord Williams of Mostyn: My Lords, the amendments to which I referred are in a general group. They relate to problems which a number of noble Lords had in relation to the powers under Clause 40. Amendments Nos. 100 to 104 and 97 restrict the powers in Clause 40 which could be made available to justices' clerks or, in the case of Amendment No. 97, to a single justice. There were concerns expressed in Committee by a number of noble Lords and I promised that we would consult further. I think we have delivered on that promise.
Last week I met a delegation, including the noble Baronesses, Lady Anelay and Lady David, and the noble Lord, Lord Goodhart, together with representatives of the Magistrates' Association and the Justices' Clerks' Society. As recently as Monday the Home Secretary had a useful meeting with the Lord Chief Justice, who had also expressed concern. The Home Secretary wrote to the Lord Chief Justice with some proposals and I am able to say that the Lord Chief Justice has indicated that he is generally content—generally, I have to say, not perfectly.
We always intended that the powers in Clause 40 should be exercisable by a justice sitting alone, not a full court. The Lord Chief Justice sees no difficulty in that. We intended that the listed powers should be capable, if suitable rules were made, of being exercised by clerks but that it might be necessary—indeed it would be necessary—for the powers to be restricted

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when given to clerks. The drafting of the clause, which has been explained earlier, made provisions for those restrictions.
Following very strong representations, and they were reasoned representations, we wondered whether there should be restrictions on the face of the Bill. We have come to the conclusion that it is possible to do that and furthermore that it is right to do that. I can tell your Lordships that we propose to move suitable amendments at Third Reading to make clear the extent of the powers which clerks would be capable of exercising subject to rules.
The most objectionable power as seen by your Lordships was that of remanding a defendant in custody. The power to remand on bail was also opposed by the Magistrates' Association. It was never the Government's intention that clerks should be empowered to determine disputed issues of bail or custody. The amendment in the name of my noble friend Lady David would prevent clerks from remanding a defendant in custody at all, even where he had previously been so remanded by a court and was content for the remand to be extended. That would mean that clerks would be precluded from conducting pre-trial reviews in any custody cases, which would detract significantly from courts' ability to organise themselves efficiently. Our proposal, therefore, is to withhold from clerks the power to remand a defendant in custody, with the one exception, which we believe to be reasonable and well justified, that a clerk would be able to renew with the defendant's consent a remand in custody which has previously been made by a court. I believe that to be a reasonable outcome.
As for remands on bail, we would again propose that the power to vary conditions or to impose new ones should be exercisable by clerks only with the parties' consent. A clerk would be capable of renewing bail on the same conditions without consent. Clerks would also be given a new power to grant bail to a defendant who had answered to police bail in appearing at an early administrative hearing, since without this power clerks would be unable to conduct such hearings at all. Again, we believe that that is reasonable.
There has been a good deal of concern about pre-sentence reports. We see some force in the argument that to give an indication of seriousness would involve the clerk too closely in the sentencing process. We are therefore content to remove that part of the paragraph as far as clerks are concerned.
Amendment No. 97 in the name of the noble Lord, Lord Dholakia, would go much further, removing the power to order a pre-sentence report altogether, not only from a clerk but from a single justice. We do not think that that is right. It would mean that many cases in which a guilty plea was made at a pre-trial hearing would have to be put before a full Bench merely to order a pre-sentence report when it was apparent that that was wanted.
Paragraph (m) of Clause 40(1), relating to prohibition of publication was a matter of concern to the Lord Chief Justice. It was specifically raised by the noble Lord, Lord Goodhart, when we had our discussion, which all
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present found useful and fruitful. The noble Lord pointed out that it might involve a clerk in taking decisions which might be controversial and subject to criticism. We thought about that and we have concluded that the noble Lord is right. We think that that power should be excluded from clerks and reserved to a single justice.
In relation to the power in paragraph (o), about orders for joint or separate trials, the Government are happy to accept the suggestion of the noble and learned Lord the Lord Chief Justice that we should insert a provision requiring the parties' consent to that decision being taken by a justices' clerk.
There remains one power—that in paragraph (n), about giving directions for the conduct of the trial—about which the Lord Chief Justice still has some reservations. We wondered whether this power could be limited by requiring consent. But this is a wide-ranging power, covering such issues as the timetable for the case and attendance of witnesses, and it is fundamental to the role of the clerk in the management of cases rather than their disposal. We think that to require the parties' consent would damage that provision because it gives the mischievous an opportunity to be unco-operative and to put a spoke in the wheel.
We are not persuaded of the case for Amendment No. 99, which needs the parties' consent to the exercise of the power to bring forward the date of a hearing to which the defendant has already been bailed by the police. The power can be exercised by a court. It is seldom needed. It is likely to be used even less in the future because of the Clause 37 requirement for defendants to be bailed to the next available court hearing. The parties' consent was not necessary when a date was originally set by the police and we do not see why it should be needed when a single justice or a clerk alters it.
We do not think that the drafting suggested in Amendment No. 98 is necessary. Some of the powers in Clause 40 relate to extending time limits and to the grant of bail. It might be helpful if I set out our thoughts because we intend to introduce a number of amendments at Third Reading. First, we should like to amend Clause 34 to make it clear that time limits may be extended where a court orders separate trials in the interests of justice. Secondly, we wish to introduce a new clause to strengthen the use of sureties in bail cases to complement the wider use of securities in Clause 45.
We hope to introduce an amendment to the bail provision in the Criminal Justice and Public Order Act 1994, which is currently the subject of two actions in the European Court of Human Rights. At Third Reading we intend to table amendments to Clause 40 which take account of many of the points that have legitimately troubled your Lordships. We are looking again at the finer points of the clause for further improvement.
Amendment No. 105 in this group is in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Henley. We agree that not all court clerks would be suitable to exercise the power specified. Justices' clerks may be authorised under rules to exercise the powers of a single justice, and justices' clerks may in

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turn delegate those powers at their discretion to other court clerks. We intended that before the piloting of Clause 40 the consultation procedure provided in subsection (3) should address, among other things, the question of who, apart from the clerk to the justices himself, should be authorised. I am not sure that this amendment is precisely what is needed. I apprehend that the noble Baroness put it forward on the basis that it might stimulate further thought. It has had that consequence. We are quite happy to consider whether there is scope for restricting the extent to which Clause 40 powers can be delegated by justices' clerks to other clerks, but we wish to retain local flexibility which is very important. On the basis of that indication I hope that the noble Baroness is reasonably content for this evening.
9.30 p.m.
Baroness Anelay of St. Johns: My Lords, I hope that I can be both reasonable and content but perhaps not necessarily at the same time. I thank the Minister for his early indication about amendments to Clause 40 that the Government may table at Third Reading. With the leave of the House, perhaps I may respond briefly. I am aware that at Report, when the Minister has spoken at an early stage, those who have tabled amendments may comment before the noble Lord, Lord Dholakia, determines whether or not he wishes to proceed with his amendment.
I should like to place on record my thanks to the noble Lord, Lord Williams of Mostyn, for the meeting held at my request last Thursday. It was a most helpful meeting for all those who attended. I know that the noble Viscount, Lord Tenby, would have attended that meeting had he not had a previous long-standing engagement. Those who attended made non-party, non-partisan representations on the core matters of concern in regard to bail and the ordering of pre-sentence reports with an indication of the seriousness of the offence by a justice's clerk.
I have listened carefully to what the Minister has said. I shall read carefully in Hansard the implications of the proposals that he has made this evening, but at first sight it appears that most of my objections have been met. However, in this world one does not get everything for which one asks. It appears that the Government have listened to the principles underlying my objections. I note at this stage that the pre-sentence report will still be granted by a justice's clerk or a magistrate sitting alone, which is almost on a par with the procedure in the Crown Court where a report is ordered in virtually every case. The query in my mind is what implications that has for the Probation Service in preparing such reports, because it appears that consequently there will be a huge increase in its workload. I am sure that the Government will consult the service about the implications of the proposals. I shall consider whether there are any outstanding issues when I have read Hansard.
The Minister has referred to Amendment No. 105 in my name. I am relieved to hear that the Government are looking closely at what experience a justice's clerk
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should possess before he carries out the powers to be delegated to him under Clause 40. I end simply by thanking the Minister for the remarks that he has made. When we come to Amendment No. 105 I shall not be moving it.
Lord Goodhart: My Lords, I, too, am grateful for the concessions made by the Minister, which have met just about all our requirements on this matter. They will have saved your Lordships from wading through a good deal of what I would describe as alphabet soup in the next few minutes, which we would otherwise have had to do.
I am especially grateful that the points that I raised on prohibition of disclosure—what happens in a magistrates' court—have now been reserved to a justice and cannot be made by a justices' clerk. At this stage I obviously cannot give any blanket undertaking that we shall not raise any objections to whatever amendments the Government may introduce on Third Reading, because we have not yet seen them, nor do we have detailed knowledge of the scope of what they would cover. However, broadly speaking, this issue can now be taken to have been settled.
Lord Dholakia: My Lords, I am grateful to the Minister, the noble Baroness, Lady Anelay, and my noble friend Lord Goodhart who has kept me informed about discussions with the Minister. A number of points made to the Minister has substantially been met. I shall study Hansard and wait to see what happens on Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98 to 105 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 106:
Page 32, line 18, leave out ("with").
On Question, amendment agreed to.
Clause 43 [Provisions supplementing section 42]:
[Amendment No.106A not moved.]
Clause 44 [Crown Prosecution Service: powers of non-legal staff]:
Lord Meston Lord Meston moved Amendment No. 107:
Page 35, line 20, at end insert ("for non-imprisonable offences").
The noble Lord said: My Lords, I shall speak to Amendments Nos. 107 to 110. These amendments are a simplified version of amendments moved in Committee to introduce certain safeguards on the face of the Bill to what is now Clause 44. The matter was debated on the fourth day of Committee on 24th February.
Clause 44 will enable non-legal staff in the CPS to decide whether or not to institute and whether or not to continue criminal proceedings, and will enable them to conduct criminal proceedings, other than trials, in magistrates' courts. Those functions are not always straightforward. They can involve difficult decisions with implications for the defendant, and for his or her liberty; implications for the victims of crime; and implications for the running of the courts.
The people who exercise those functions should have the requisite skill, training and experience. For those reasons an amendment to the proposed new Clause 44 was moved in Committee. It attracted support from several speakers. It also attracted reassurances from the noble and learned Lord the Solicitor-General that there will be appropriate safeguards, and that lay staff so employed will have appropriate training, will be supervised and will be independent.
Amendments Nos. 109 and 110 now seek to place those assurances on the face of the Bill. Amendments Nos. 107 and 108 seek to limit the delegation of functions to non-imprisonable offences. If that is not acceptable to the Government, it is all the more important that Amendments Nos. 109 and 110 are on the face of the Bill. The amendments have the support of the Association of First Division Civil Servants, the Law Society and the Bar Council. I beg to move.
Lord Falconer of Thoroton: My Lords, I not only understand, but to some extent I share the concern about the wide scope of Clause 44 which underlies these amendments. It is clearly true that the business which could in theory be given to professionally unqualified staff to deal with is very considerably wider than that which, in practice, it would ever be intended that they should take on. I am anxious, therefore, to do all that I can to clarify the position, both by a readiness to bring forward suitable amendments and by giving assurances as to practice.
The problem is that it is not at all easy to define what kind of cases lay staff ought to deal with. It is clear that they should not handle contested trials, and they are already excluded. It is also clear that they would in no circumstances be asked to deal with indictable-only cases, and it would be straightforward to reflect this by excluding such offences from the ambit of the clause. But beyond that, the category of offence is an unreliable criterion for exclusion. Restricting lay staff to dealing with non-imprisonable offences, for example, would not be appropriate because it would prevent them from dealing with some imprisonable offences—for example, simple shoplifting where the facts are not in question—which would be entirely suitable for them, while still allowing lay presenters to deal with non-imprisonable offences—for example, where a public figure was involved—which would not be suitable.
For these reasons, it is inevitable that the clause will leave the director with a wide discretion as to which of the cases not in the excluded categories could properly be dealt with by lay staff. It would be necessary for detailed guidance on the cases in which lay reviewers and lay presenters would be deployed to be produced by the CPS, and our intention is that this guidance should be made public.
It will certainly be necessary for the director to take steps to ensure that lay staff are fully trained in the exercise of these new responsibilities, and a training programme would be established which lay staff would be required to attend before they would be permitted to carry them out.
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Amendment No. 109 deals with the question of supervision, which was raised by several noble Lords in Committee. There is no dispute that lay staff should indeed be subject to the supervision of professionally qualified Crown prosecutors. There is already a requirement that they should be so supervised. It is imposed by subsection (3) of the new Section 7A, where the reference to
"instructions given to him by the director".
(which is taken from the existing Section 7A of the Prosecution of Offences Act 1985) covers, by virtue of Section 1(7) of that Act, instructions given by a Crown prosecutor.
As a result of the debate in Committee and the comments of the noble Lord, Lord Meston, I am conscious that there is a general desire to restrict the scope of this clause. I have already indicated that we are willing to remove indictable-only offences, and it may be possible—we are still considering this—to tighten the drafting in other ways. I hope that in the light of these assurances, and of what I have said about the publication of guidance, noble Lords will withdraw these amendments. We will produce amendments on Third Reading.
Lord Meston: My Lords, on that basis, I am happy not to press the matter. I am grateful for the further assurances which the noble and learned Lord has provided. I hope that he can indicate not later than Third Reading when the guidance, at least in draft form, can be expected. I am happy to wait until the Third Reading and until we have sight of the proposed government amendments. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 108 to 111 not moved.]
Clause 51 [Periodic reviews]:
[Amendment No. 112 had been withdrawn from the Marshalled List.]
9.45 p.m.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 112A:
Page 41, line 2, at end insert—
("() Where the order was made by a magistrates' court in the case of an offender under the age of 18 years in respect of an offence triable only on indictment in the case of an adult, the court's power under subsection (4)(b) above shall be a power to do one of the following, namely—

(a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made; or

(b) to deal with the offender for that offence in any way in which it could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months;

and the reference in paragraph (b) above to an offence punishable with imprisonment shall he construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders.").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 165. These two amendments make provision for a scenario in which a magistrates' court

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imposes a drug treatment and testing order on a 16 or 17 year-old offender in respect of an offence which would be triable only on indictment were he aged over 18.
Following those circumstances, if, after the offender had attained the age of 18, the court then proposed to vary the requirements of the drug treatment and testing order, either at a periodic review in the case of the first amendment or on the application of the supervising officer in the case of the second, and the offender then refused to consent to the variation proposed by the court, the court would be entitled to resentence him for the original offence as though he had just been convicted of it.
However, in the absence of these amendments the magistrates' court has no power to deal with him for the offence triable only on indictment. Therefore, these two amendments confer the necessary powers on the magistrates' court to resentence the offender in the scenario described.
The amount of the maximum fine, which is £5,000, is specified on the basis that it should be no less than that specified in respect of an offence which is triable either way in the case of an adult. I beg to move.
On Question, amendment agreed to.
Clause 52 [Supplementary provisions as to orders]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 113:
Page 41, line 27, leave out ("court has power (under that Schedule) to review the order") and insert ("order may be reviewed (under that Schedule)").
The noble and learned Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 114, 205 and 206. Amendments Nos. 113 and 114 provide that a drug treatment and testing order made on appeal by the Court of Appeal or the House of Lords should be treated as though it had been made by the Crown Court. They are made in order to clarify the requirements in Clause 51 of this Bill that reviews are heard and associated reports received by the court which made the order.
We should not want that requirement to mean that an order might have to be reviewed by the Court of Appeal or the House of Lords. That would mean imposing potentially costly travel expenses on the offender and would detract from the intention that the court should form part of a local triumvirate—the probation officer and the treatment provider comprising the other parts—with oversight of the order.
Amendments Nos. 205 and 206 will alter Schedule 2 to the Criminal Justice Act 1991 to reflect the changes to Clause 51 made by Amendments Nos. 113 and 114. I beg to move.
Lord Henley: My Lords, I hate to be a bore and I intervene only to ask a question for clarification. The noble and learned Lord said that he was addressing Amendments Nos. 113 and 114, 205 and 206. I appreciate that the groupings are merely informal and are not binding but the groupings list refers to Amendments Nos. 113, 114, 197 and 206. For the sake
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of clarity, I should like the noble and learned Lord to confirm that the groupings are wrong and he is right, which I am sure must be the case.
Lord Falconer of Thoroton: My Lords, I am right and the groupings are wrong.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 114
Page 41, line 40, at end insert—
("() Where a drug treatment and testing order has been made on an appeal brought from the Crown Court, or from the criminal division of the Court of Appeal, for the purposes of sections 50 and 51 above it shall be deemed to have been made by the Crown Court.").
On Question, amendment agreed to.
Baroness Masham of Ilion Baroness Masham of Ilion moved Amendment No. 114A:
After Clause 52, insert the following new clause—
("Young offenders: detention
DETENTION OF GIRLS UNDER 18
. An offender who is convicted of any offence punishable with detention and who is a girl under the age of 18 shall he kept separate from adults and shall be detained in a separate institution such as local authority secure accommodation, or in a separate part of an institution also holding adults, unless, after assessment and in exceptional circumstances, it is held to be in the best interests of the offender to be held with adults for a temporary period.").
The noble Baroness said: My Lords, I am particularly grateful to the noble Baroness, Lady Mallalieu, the noble Lord, Lord Hurd of Westwell, and the noble Lord, Lord Hooson, who have attached their names to Amendment No. 125. I am also grateful to my noble friend Lord Tenby who wanted to put his name to this amendment. Indeed, I am grateful to all noble Lords who supported this amendment in Committee, and, as I said, I am especially grateful to the noble Baroness, Lady Mallalieu, who I see is still present in the Chamber. At the same time, I should express my thanks to the noble Lord, Lord Williams of Mostyn, for his invitation to meet him at the Home Office yesterday. We had an interesting discussion with officials present.
Your Lordships will notice that I have tabled two new clauses, the first contained in Amendment No. 114A and designed to clarify the aim of my original amendment, Amendment No. 125, to separate juveniles from adults as soon as possible and not wait for the introduction of the detention and training order. The second proposed new clause, contained in Amendment No. 128A, simply seeks to include Scotland.
The amendments would make it unlawful for girls aged under 18 to be held with adults in prison unless in exceptional circumstances. That would bring the UK into line with the UN Convention on the Rights of the Child (Article 37(c)), to which the Government entered a reservation. It requires that juveniles and adults be held separately—that is, without the reservation.
The main point of the amendments is that girls aged 15, 16 and 17 who are still children under the Children Act should be held not in prisons but in local authority

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secure accommodation units, unless exceptional circumstances apply. These units are designed for dealing with this complex age group and are staffed by people with particular commitment to, and considerable experience of, dealing with adolescents in trouble. This group seems to be getting more difficult and aggressive; research is needed on how to prevent this particular problem escalating. As the inquiry that I chaired for the Howard League found, these young girls could become "lost" inside the prisons. I have yet to meet a prison governor or a prison chaplain who wants this young age group in his establishment.
Many of these girls have dropped out from education. If they are to see a future and hold down good jobs they need education and not be locked up in a cell at 5 p.m. which often happens in prison. Secure units provide the national curriculum and the children in their care can take GCSEs, and even A-levels, if they are willing and able to do so. They also provide expert teaching for those with special needs, such as those who have difficulty with reading and writing. None of the prisons that we visited was able to provide the national curriculum.
In a secure unit, every child is assessed by a psychiatrist and a clinical psychologist on admission. Individual and group therapy work is done with them and is directly related to each child's particular needs, whether it be counselling for sexual and physical abuse, which many of them have suffered; help in dealing with drug and alcohol misuse; or, work with their offending behaviour and anger management. The Prison Service is simply unable to provide anything comparable because it does not have the staff or the resources: indeed, prisons can be universities of crime and drug abuse for young people.
The Minister was concerned that units for girls would be small and that children with social problems would be mixing with children with criminal records. However, that is already done. Indeed, some of the children have worse records than those in prison, but the standard of supervision is high in the local authority secure units.
The Minister said that if we had a number of distinct local authority units we might well end up with a number of their secure accommodation units containing as few as five persons. In fact, it is growing practice now to divide local authority secure accommodation units into smaller units of around five or six people. The new secure unit in Wales operates this system and it is planned for Stamford House in London to do the same. Because there are small numbers, the individual needs for meaningful and constructive regimes for education, training and personal development can be achieved.
I heard yesterday that the Home Office is creating three or four juvenile units within existing prisons. I cannot accept that this is a suitable solution for the young girls. I hope that it will be helpful for the 18, 19 and 20 year-olds of whom there are considerable numbers. I hope your Lordships will agree with me for the following reasons. While such a measure would fulfil the strict obligation of Article 37 it would not meet the spirit of the convention as a whole. The culture and
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atmosphere of the units would inevitably take on the characteristics of an adult prison. There would he the same damaging psychological effect and stigma for the children and their families of having been in an adult gaol. Staff with a special affinity for, and who have received training in dealing with, what we agree is an exceedingly complex group will not be available. An extremely high ratio of staff to girls would be necessary if the high levels of bullying and drug taking found in prisons were not to be repeated in the units—a level of staffing the Prison Service is unlikely to be able to provide.
The youngsters would be competing for resources with the main adult population. It is important to note that with only three or four units the girls would be even further away from their homes and families—a factor which has been identified as being important as regards rates of reoffending. I have the highest regard for the Minister. I hope he agrees that this vulnerable and at risk group of 15 to 17 year-olds needs helping to see the point of a useful, crime-free life. I beg to move.
Lord Judd: My Lords, I congratulate the noble Baroness on having returned to the fray on this amendment this evening. Her commitment is legendary and greatly respected in all parts of the House. In view of the late hour I do not think it necessary to repeat all the detailed arguments which the noble Baroness put so clearly. I have a great sense of solidarity with the Minister and his colleagues in their immense responsibilities. However, I think there comes a time to call a spade a spade. I believe the Minister knows as well as the noble Baroness and the rest of us that the prison environment and neighbourhood is no place for these young girls. The challenge to government is to ensure that this is changed as rapidly as possible.
It is not a question of whether one builds a secure unit separated from the rest of the prison. The whole issue is related to the psychology and the ambience of the prison environment. What we are concerned about—I know the Minister is also concerned—is that these young prisoners should, above all, be rehabilitated. We touched on the point earlier. It is not just that we want to win a young person back to civilised behaviour in society, as I expressed it earlier. It is also a matter of simple economics. If we do not rehabilitate young prisoners, the future cost to society will be high indeed. As is so often the case with public expenditure, we look at the immediate costs in isolation from the long-term costs of not being prepared to afford what is necessary in the immediate setting.
Once again I congratulate the noble Baroness on staying with her cause. I hope that the Government will address her anxieties, if not tonight, then on some future occasion. I am certain that what is happening at the moment is not acceptable. Improvised solutions may have all kinds of administrative rationale behind them but they are not meeting the need for rehabilitation of the prisoner. That is the biggest challenge of all. I therefore wish strongly to associate myself with the case that has been put.
10 p.m.
Lord Goodhart: My Lords, in the absence of my noble friend Lord Hooson, who put his name to Amendment No. 125, I simply say that the noble Baroness, Lady Masham, has made an extremely powerful case for her amendment today, as she did at Committee stage. I would not wish to add anything to what has been said by the noble Baroness and the noble Lord, Lord Judd. They have far more experience of these matters than I do. From these Benches, we support the amendment of the noble Baroness.
Baroness Mallalieu: My Lords, I have put my name to Amendment No. 125. I wish to support the noble Baroness. No one who read the powerful report from the Howard League inquiry, which the noble Baroness chaired, could be in any doubt that the very last thing that emotionally damaged adolescent girls need is to be locked up in a prison environment with older, more sophisticated, emotionally damaged women.
The Minister has, I think, the sympathies of us all because he has inherited a situation, and one which is worsening. The present numbers of 60 to 80 per year represent a three fold increase since 1992 as more girls are sent to prison. We all recognise his difficulties in making provision for small numbers of this kind which will involve a different regime and specially trained officers. But the present position surely cannot be allowed to continue indefinitely.
The Government have said on many occasions, both prior to the general election and subsequently, that all legislation would be scrutinised to ensure that it treated men and women fairly. This seems to me to be one area in which a real start could be made. These teenagers, few in number though they are, may not be the most deserving youngsters in our community but they are every hit as much—perhaps even more—in need of special help and guidance as their male counterparts; and our present penal system is currently treating them less well for the single reason that they are female.
I hope that the Minister will give us hope that something is to be done in the very near future.
The Earl of Mar and Kellie: My Lords, Amendment No. 128A refers to Scotland. I wish to speak about the special circumstances which pertain there.
Amendment No. 128A is aimed at separating off young women under the age of 18 from adults, or at least from those over 18 in Scotland. The aim is laudable. The intention that girls under 18 should not be in prison but maintained in secure accommodation is clearly central to the approach embodied in the children's hearing system.
Where this may not hold water is in the ability of the secure accommodation unit to contain the very unruly behaviour of a few of the girls. That may be a matter of staff training or of inadequate facilities. The Scottish women's prison at Cornton Vale typically houses about 180 prisoners of all ages. The current average population of young offenders aged between 16 and 21 is no more than 12 to 15. This small group can include those remanded on serious charges; those on unruly
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certificates; those "revolving door" clients who are chronically disturbed; and one or two young women serving very long sentences.
The policy over the past few years has been to run the YOI and the prison on a mixed basis for practical reasons. The advantage outweighs the acknowledged disadvantage. The mixing of this small group of young offenders with adults has a stabilising effect, reducing volatile behaviour among the younger women. Many of the young offenders are older than their years in terms of raw life experience, characterised by the expression, "Seventeen and 18, going on 40".
They are vulnerable young offenders, but they are most vulnerable to being bullied by their own age group. I can assure the House that there never has been any use of Cornton Vale prison for girls under 16. I realise that I am in a difficult position here as I believe that the amendments have merit, but the circumstances seem to make them unworkable.
Lord Williams of Mostyn: My Lords, everyone has spoken with great feeling, and with great generosity in recognising the situation that we have inherited. I believe all noble Lords who have spoken feel strongly about the matter; and so do I. I say, without any equivocation, that I have great sympathy with the overall aim of these amendments.
We have specified in Clause 28 of the Bill that,
"It shall be the principal aim of the youth justice system to prevent offending by children and young persons".
That was done as an aspect of deliberate policy. We want to make the system quicker, and fundamentally we must have earlier interventions where those can work.
The new detention and training order is focused on this group. Half the length of the order will be served in custody and half under community supervision. It will be possible for good or bad progress to be reflected in the release date from custody. It is vital that there should be consistent, continuous through-care from the point of sentence to the point of completion of the period of community supervision.
Under Clause 63(7) of the Bill, youngsters subject to the new detention and training order can be placed in: a secure training centre; a young offender institution; a youth treatment centre; local authority secure accommodation; or,
"such other accommodation provided for the purpose of restricting liberty as the Secretary of State may direct".
Those are alternatives that we have chosen specifically to deal with the point that arose earlier; namely, although young people may be of the same age, their requirements are different, and those requirements are not always related simply to chronological age because their backgrounds are different and the remedies wanted may also differ.
These amendments would go wider than the proposed detention and training order. The proposal would encompass Section 53 children—those sentenced by virtue of the 1933 Act for very serious offences—and those sentenced to detention in a young offenders

911
institution and under the secure training order, although that applies only to those aged 12 to 14. As the noble Earl pointed out, it would also apply to Scotland.
A good deal has been achieved by the Prison Service since the Howard League report. I was particularly grateful that the noble Baroness, Lady Masham, was able to join us in the Home Office yesterday. I think I can say as objectively as possible that the response of officials was universally open-minded. They acknowledged the difficulties and were eager to see what could be done within a realistic time-scale.
Since the Howard League report was published, all young offenders—that is, those under 21—are held in designated young offender accommodation. We are looking to the further separation of young offender and adult accommodation. On 10th March, according to the latest figures I have, there were 83 sentenced girls under 18; of those, over half were held in separate young offender blocks, or wings in open prisons, or in mother and baby units. We have agreed plans for a further two physically separate units in establishments which currently hold a further 25 juvenile girls. Of the 17 Section 53 girls held on 31 January this year—that is, those between 15 and 17 years of age and held for really serious offences, 13 were in local authority secure accommodation, including every one of the 15 year-olds. There were two 16, and two 17 year-olds in Prison Service accommodation. It is not a perfect situation; however, I believe we have begun to make progress.
There is a working group, about which the noble Baroness was informed, and about which she knew anyway, on age mixing in the female estate. We are considering the options, including whether or not juvenile girls should be held with juvenile boys in some circumstances, because there are problems in others; whether they should be held in totally separate units in the female prison estate; and what can be done about local authority secure units, to which the noble Baroness significantly directed her remarks.
There are difficulties with all of those options. One has to face the fact that among the 90 girls some are very difficult to manage. They can be a risk to the younger and more vulnerable individuals who are sometimes held in local authority units. We want to have the most flexible range of remedies for these girls on an individual basis rather than set out in legislation that they should be held in one place or another.
The accommodation of some of these girls in local authority secure units may not meet their needs as effectively as accommodation in secure training centres or, in some cases, the kind of unit that the Prison Service is seeking to provide. I say again that not all local authority secure units provide as good a level of care as is desirable.
It is very difficult to see offending behaviour programmes necessarily having the same priority in an establishment which is not exclusively devoted to dealing with offenders. We must bear in mind that many of the local authority units are small, providing 16 to 18 places. They take a wide age range, from 10 upwards. I understand and deeply sympathise with the proposition
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that is put about the vulnerability of these young girls. However, we must not forget the vulnerability of the younger children in local authority secure units of age 10 upwards. There is often a significant difference between a 10 year-old and the young girls to whom the noble Baroness referred. It is very difficult in units that small, with an age range that wide, to provide suitable accommodation in such a small establishment.
The age range is narrower within the Prison Service, from 15 to 17. What are we doing for juveniles in prison? The noble Lord, Lord Judd, made a perfectly reasonable and typically generous request. We are looking to a careful assessment of each individual's health, social, educational and vocational needs; programmes to tackle individual needs in education, training for work and offending behaviour; and regular and formal reviews of each individual's plans. I believe that experience shows that, when an individual gets into the system, the system often becomes more important than the child. I believe that the structural internal discipline of regular formal reviews is very important. We want the co-operation of the agencies and, where possible, the support and involvement of families.
The Children Act does not apply in prisons. However, we wish to reflect its principles in the operation of regimes for young offenders. An additional £3 million has been put forward to enhance regimes in six establishments, including two juvenile establishments and two women's prisons. That money is to develop the kind of regime to which I referred earlier.
I understand and share the concern about inappropriate mixing of vulnerable female prisoners with other female prisoners who can bully them, oppress them and lead them further astray. We have made a start. We have not been able to deliver everything. As I believe that an imposed discipline is good for us as well as for those who minister to children. I am happy to undertake to report back to your Lordships on the further progress we have achieved in improving facilities for girls when we introduce the new detention and training order in the summer of 1999.
I have not offered a perfect answer to these difficult problems. The truth is: I have no perfect answer. All I can say is that, whether it is Ministers in the Home Office—not least the Secretary of State—or whether it is the officials, to whom I pay grateful tribute, we are determined to do what we can to address this problem which, though numerically small, is a blot on our community. The noble Earl's figures are correct. In Scotland there are 20 young female offenders, only five of whom (according to my last figures) are under 18; most of them are held in Cornton Vale, which is an all-female institution. If I understood him correctly, the noble Earl said that some of the regime there seems to be fruitful and working well. I am happy for that reassurance.
I repeat that I do not have a perfect answer. All I can offer is a commitment to do the utmost that we can and to reiterate my offer to return to your Lordships with a progress report in what may seem a long time away to a young person of 15 to 17, but which seems a realistic timescale to me in which to be able to return with a

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full report. I am conscious that what I have said will be recorded; having been recorded, it will be read and will rightly be put to me once more when I have my opportunity to report.
10.15 p.m.
Baroness Masham of Mon: My Lords, I thank all noble Lords, particularly the noble Lord, Lord Judd, who is really committed to this subject. I thank also the Minister for his full answer, which will be read carefully and digested.
I am concerned that the Minister did not mention education in those units. I feel that the 15 and 16 year-olds particularly need a full school day's work. Next Wednesday the Cross-Bench Peers have a debate on the problems of the prisons. I know that some noble Lords will be visiting prisons before then and will see the situation for themselves. It was interesting to hear about Scotland. I am a full-blown Scot and did not want to leave Scotland out; but I know that the system is different and I therefore thank the noble Earl for looking into the situation in Scotland.
I should like to take this matter away because it is important. It can mean a difference to a young person's life. We have one more stage of the Bill to come, at which time I will have the right to bring back the amendment if I need to. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Reprimands and warnings]:
Lord Goodhart Lord Goodhart moved Amendment No. 115:
Page 42, line 21, at end insert ("or
(c) where the offender has previously been warned, the constable considers that to continue a rehabilitation programme arranged under section 54(2)(b) below would he more likely to prevent the commission by the offender of further offences than prosecuting him for the offence and the constable considers the offence to be not so serious as to require a charge to be brought;").
The noble Lord said: My Lords, in the absence of my noble friend Lord McNally, who is unwell, and my noble friend Lord Thomas of Gresford who should have departed from Euston station around 15 minutes ago, it falls to me as third string to move this amendment.
By no means for the first time, but possibly for the last time during the debate on this Bill, I wish to complain of the rigidity with which the Government have approached many of the aspects of the Bill, in particular the aspects of cautioning and sentencing.
The Bill as it stands allows a warning to be given only if the offender has not previously been warned or, where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought. I entirely understand and sympathise with the Government's desire to curb the practice of giving repeat cautions which, as the Government made clear, do nothing but create an attitude in the young offender that he does not have to worry about justice. That is wrong, and it is right that repeated cautions should not
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be given in normal circumstances. I would have hoped that this matter could be dealt with by guidance from the Government to police forces rather than by a rigid statutory restriction on the power to give a warning.
What the amendment provides for is very far from being a general power to give a second warning. It is a tightly limited amendment which merely authorises a second warning to be given within the two-year period where the constable considers that the continuation of a rehabilitation programme would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence. This seems to be a very reasonable amendment and it is certainly one which in no way will give rise to the abuse of constantly repeated cautions without prosecutions.
In those circumstances, and taking into account the fact that the amendment is supported by the National Association of Probation Officers, it is my hope that even now the Government will be prepared to consider this limited extension of the power to grant a second warning and give a certain degree of increased flexibility to the way in which offences by young people are dealt with. I beg to move.
Lord Williams of Mostyn: My Lords, Clauses 53 and 54 are, as the noble Lord rightly said, designed to replace the existing cautioning arrangements, which have been abused and perverted. I do not think it is fair to say that the Government have approached the Bill with rigidity. On 11 distinct aspects we have varied our original views after carefully giving consideration to what has been put to us. I do not think that the experience of Clause 40 points to rigidity.
Lord Goodhart: My Lords, I was not complaining about the Government's rigidity regarding criticisms of the Bill but about the Government's rigidity in the way they have imposed restrictions on the powers of the courts and constables.
Lord Williams of Mostyn: My Lords, this amendment deals with constables and constables alone. Perhaps I can show that rigidity is not a necessary consequence of our suggested regime.
The noble Lord is suggesting additional grounds for issuing a second warning. First, a police officer must consider that the continuation of the previous rehabilitation programme would be more effective; and secondly, the new offence must be one that clearly does not merit prosecution. We debated this in Committee and I have listened again this evening. Certainly, as a matter of practice, the question as to whether rehabilitation would be more effective than prosecution will be extremely difficult for a constable to judge. I think it would be virtually impossible for a police officer to deal with it personally. It seems to me that he would have to consult the youth offending team in question. Then we would be back to our old, well known friends, delay and uncertainty. The young person would be left in a kind of limbo, wondering what is going on, and the whole point of this regime—a quick, clear and known response to offending behaviour—would be lost. One would also have variation in practice between one

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police force and another and the kind of inconsistency that undermined the effectiveness of the current cautioning arrangements.
We believe that, if a young person commits a further offence, the proper course of action is for the police officer in the appropriate case to charge that young person. Then it is for the Crown Prosecution Service to take a decision as to whether prosecution is the right way forward. The Crown Prosecution Service, as I mentioned earlier, can take into account the issue of public interest, including the detail of the young person's offending history. Therefore, that is the flexibility which the CPS introduces into this story. It is not rigidity, because the Crown Prosecution Service has a discretion which it is capable of exercising.
We believe therefore that it is for the CPS to take the decision about discontinuance or not, to take the decision in line with the code for Crown prosecutors in full knowledge of all the facts of the case and bearing in mind the injunction set upon the CPS that it must take into account the public interest in a child case. We believe that that is what we ought to be doing. I am quite satisfied, not in a spirit of "We thought of it therefore we cannot change" but in the genuine feeling that the cautioning practice has gone so sadly astray that it has done infinite harm to many young people. We believe that the appropriate component of flexibility is provided for by the CPS discretion. I hope that the noble Lord, Lord Goodhart, will not he so rigid as not to realise the attractions and virtue of the argument I have put forward.
Lord Goodhart: My Lords, I thank the Minister for that reply. While I recognise that there is an element of flexibility through the possibility that the CPS will decide to take no action on the prosecution, in the kind of circumstances that are envisaged by this amendment it would be much better for the appropriate and necessary decision to be taken by the police officer who is much closer to the offence and to the offender than the CPS. Certainly, so far as delay is concerned, it seems to me that it is likely, even if there is a necessity to consult the youth offending team, that it would also be quicker if dealt with by the police than by the CPS. However, this is not a matter on which I feel it would be appropriate to press the Government further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 116:
Page 42, line 27, after ("station") insert ("and, where the offender is under the age of 17,").
The noble Lord said: My Lords, in moving Amendment No. 116, I speak also to Amendments Nos. 117 and 118. In Committee your Lordships agreed a government amendment which sought to bring the provisions of the Bill in respect of the role of appropriate adults into line with those under the Police and Criminal Evidence Act 1984. But the noble Lord, Lord Henley, in commenting on the amendment, now subsection (6) of Clause 53, was concerned about drafting. He made it plain that that concern was not
916
related to the purpose of the amendment but to the form of it. He asked me to think again and to consult parliamentary counsel to see whether we might improve clarity. I have done that. I think the noble Lord was right. These amendments are to meet the noble Lord's concern. Amendment No. 118 removes subsection (6) of Clause 53. Amendments Nos. 116 and 117 give effect to the same policy objective by putting the references directly into subsection (5) of Clause 53. I hope that your Lordships think that that is an improvement and I am sure that the noble Lord, bearing in mind his paternity, will bless his offspring. I beg to move.
Lord Henley: My Lords, I rise merely to say that I thank the noble Lord and offer my blessing to these amendments.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 117 and 118:
Page 42, line 29, after ("and") insert where he is under that age,").
Page 42, line 36, leave out subsection (6).
On Question, amendments agreed to.
Clause 54 [Effect of reprimands and warnings]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 119:
Page 43, line 37, leave out from ("warning,") to ("make") in line 38 and insert ("the court by or before which he is so convicted—
(a) shall not").
The noble Lord said: My Lords, Amendments Nos. 119, 120 and 198 are grouped. I shall speak to them together, if I may. The three amendments—the last is a consequential amendment to Schedule 7—are to strengthen the existing provisions of subsection (4) of Clause 54. Subsection (4) provides that a conditional discharge may only be used in exceptional circumstances where a person is being sentenced for an offence committed within two years of receiving a warning. Our aim is that young people appearing before the court in these circumstances should receive a sentence which is both proportionate and directed at preventing further offending behaviour. In some cases, a conditional discharge will be sufficient to meet these objectives, but in very many cases it will not. The amendments would require a court, when issuing a conditional discharge on the grounds of "exceptional circumstances", to state its reasons. We believe that that provides the discipline so that "exceptional circumstances" are not interpreted too widely or used inappropriately.
There is such a provision in the Criminal Justice Act 1991 in relation to the use of custodial sentences. These amendments reflect a suggestion made by the Magistrates' Association and an amendment tabled in Committee by the noble Lord, Lord Henley, the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Baroness, Lady Anelay, which was, in the event, not moved. I beg to move.
On Question, amendment agreed to.
10.30 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 120:
Page 43, line 42, at end insert ("and
(b) where it does so, shall state in open court that it is of that opinion and why it is.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 61 [Detention and training orders]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 121:
Page 49, line 45, after ("offender")") insert ("aged 12 or over").
The noble Baroness said: My Lords, Clauses 60 to 65 introduce a new detention and training order for 10 to 17 year-olds. Amendments Nos. 121, 122 and 124 seek to restrict detention and training orders to those aged 12 and over. Offenders aged 10 and 11 can currently be sentenced to long-term detention under Section 53 of the Children and Young Persons Act. They can be sentenced to a supervision order with a residence requirement which requires the local authority to place the young person in local authority accommodation for specified periods of up to six months. Offenders aged 10 and 11 can also be taken into care through civil care proceedings if they are out of control and, if necessary, be held in local authority secure units. That range of powers is adequate to ensure that juveniles can be detained wherever this is genuinely necessary.
Past experience shows that removing young people from family and community life is likely to magnify their difficulties. Not only is the normal maturing process interrupted, but reintegration back into normal life presents great difficulties and can lead to long-term problems. All forms of institutional care or custody for young offenders have high reconviction rates; 89 per cent. of juveniles leaving Prison Service custody are reconvicted within two years.
In Committee we rehearsed at great length many of the examples relating to, and the evidence about, the consequences to young people of being placed away from home in residential care and the very high reconviction rates that occur in almost every instance. When these amendments were debated in Committee, on 3rd March, the noble Lord, Lord Williams of Mostyn, said:
"It is not yet apparent that there is a need to introduce this order for 10 and 11 year-olds".—[Official Report, 3/3/98: col. 1104.]
Therefore, one must question why that power is written into the Act at all. It seems astonishing that the Government propose to include a power in the Bill for which, in the Minister's words,
"It is not yet apparent that there is a need".
The detention of children aged 10 and 11 is such a serious matter that Parliament surely needs evidence that wider powers to lock up that age group are genuinely necessary before empowering the Home Secretary to introduce such powers by delegated legislation.
I should like also to address Amendment No. 124, which is grouped with Amendments Nos. 121 and 122. Amendment No. 124 would prohibit the placing of
918
children under 15 in Prison Service custody under the detention and training order. The current minimum age for being sentenced to Prison Service custody is 15. However, as it stands, Clause 63(7) apparently enables a child of any age given a detention and training order to be placed in a Prison Service young offender institution. This could mean a child as young as 12, or, if the lower age range for the order is reduced from 12 to 10 by order under Clause 61(2)(6), a child as young as 10 years old.
When this amendment was debated in Committee on 3rd March, the noble Lord, Lord Williams of Mostyn, said:
"In this order we want to offer flexibility in the arrangements for dealing with young offenders. We want to be able to place individual young offenders in accommodation according to their individual needs and maturity".—[Official Report, 3/3/98: col. 1113.]
It is entirely reasonable that the Government should want to retain flexibility to place older but less sophisticated youngsters in local authority accommodation rather than Prison Service custody. However, it is extraordinary that the Government should want to retain discretion to place those aged 14 or even younger in Prison Service custody. Sending young children to Prison Service custody is not just a recipe for criminal contamination but also, all too often, for intimidation, self-harm and suicide attempts. I beg to move.
Lord Goodhart: My Lords, in the absence of my noble friend Lord McNally, I rise to speak to the amendment. In view of the lateness of the hour, I hope that the noble Baroness will understand if I do no more than say that, for the reasons she gave, we too support the amendment.
Lord Henley: My Lords, I rise to support in particular the first amendment in the group to which the noble Baroness has spoken, Amendment No. 121. My chief concern is that the Government seek a power at a time when, as the noble Lord. Lord Williams, said at Committee stage, it is not yet apparent that there is a need to introduce this order for 10 to 12 year-olds. As the noble Baroness made clear, this is a matter of extreme seriousness. We believe it is right that a power of this sort should be sought when the need for that power has been demonstrated and not beforehand. To do it by seeking an order-making power and then to introduce it at a later point is not the right way to go about it. If the Government believe that there is a need for such a power in due course they will have an adequate opportunity to secure it in a criminal justice Bill, or whatever, in the next Session. They can then seek that power and justify it to the House. I believe it is wrong to give that power to the Government, even if it is by means of order-making power subject to Parliament's approval—obviously, Parliament would not have the chance to amend it—in advance of the need being demonstrated. I hope therefore that the noble Baroness will pursue her amendment and press it on this occasion.
Lord Williams of Mostyn: My Lords, we believe that courts should have the power, where there is a

919
clear need, to impose custodial sentences upon 12 to 17 year-olds. The detention and training order is to replace detention in a young offender institution and the secure training order. The noble Baroness spoke of the high reconviction rate. I entirely agree. But the detention and training order regime has not been available so far with the split that I described earlier. I shall not weary your Lordships further with that.
I repeat what I said before. I said it deliberately. It is not yet apparent that there is a need to introduce the order for 10 and 11 year-olds. I hope that the need does not arise. We are considering a power that the Secretary of State may take if the evidence demonstrates it. I assure noble Lords that we propose to monitor the courts' use of the detention and training order for those over 12 to see what happens in practice and how the regime makes a difference. It is an entirely different concept. We also intend to monitor the underlying rate of offending by 10 and 11 year-olds. It is only at that stage that the Secretary of State may come to the conclusion that he wishes to extend the age range.
I turn to Amendment No.124. Some of the ground has been covered earlier in the debate relating to young female offenders. This amendment is deliberately designed to restrict options for placing young offenders subject to detention and training orders in different types of secure accommodation according to their age. We are looking for the options, the flexibility: young offender institution secure training centre, local authority secure accommodation, youth treatment centre or other accommodation provided for the purpose of restricting liberty, as specified by the Home Secretary.
If Amendment No. 124 were carried, it would hamper flexibility. A robust, vigorous, mature, sophisticated 14 year-old, a few weeks away from being 15, but subject to a full two-year detention and training order, could be placed in a secure training centre until his release, possibly after his 16th birthday, where his presence could be disruptive to the welfare and well-being of other trainees, but he could not be in a young offender institution which might be better suited to his needs, his maturity, and any specific problems he might pose.
Such an example shows that there is no benefit in arbitrarily limiting discretion. I understand the concerns about inappropriate mixing. We believe that the amendment, curiously, would reduce the flexibility which is required to put young prisoners in the most appropriate accommodation, according to their needs, according to what is best for their possible rehabilitation, and of course taking account of the risk they pose to themselves and to others. We do not believe that the amendment would be helpful to that cause. I hope that my noble friend will not seek to press the amendment.
Baroness Hilton of Eggardon: My Lords, despite the challenge thrown out by the noble Lord, Lord Henley, I do not intend to press the amendment to a Division. However, I am deeply disappointed that my noble friend did not produce a more sympathetic or constructive response to the amendments. I do not believe that it is necessary for 11 and 12 year-olds. One could legislate for all sorts of things which might be possible in the future. One could imagine all sorts of strange things that one
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might introduce, on the possibility that they might be necessary at some future time. That does not seem an adequate reason for introducing them into Acts of Parliament. However, as it is, at the moment, we hope, a remote contingent possibility that we are going to lock up 10 and 11 year-olds in that way, I beg leave to withdraw the amendment.
Lord Henley: No.
10.42 p.m.
On Question, Whether the said amendment (No. 121) shall be agreed to?
Their Lordships divided: Contents, 9; Not-Contents, 21.

Division No. 3

CONTENTS

Addington, L.

Goodhart, L.

Anelay of St. Johns, B. [Teller.]

Mackay of Drumadoon, L [Teller.]

Dholakia, L.

Elton, L.

Mar and Kellie,E.

Ely, Bp.

Russell, E.

NOT-CONTENTS

Alton of Liverpool, L.

McIntosh of Haringey, L. [Teller.]

Ashbourne, L.

Carter, L. [Teller.]

Mallalieu, B.

Clinton-Davis, L.

Masham of Ilton, B.

Darcy de Knayth, B.

Monson, L.

Falconer of Thoroton, L.

Ponsonby of Shulbrede, L.

Farrington of Ribbleton, B.

Puttnam, L.

Hardie, L.

Simon, V.

Hilton of Eggardon, B.

Whitty, L.

Hoyle, L.

Williams of Mostyn, L.

Lawrence, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
10.50 p.m.
[Amendment No. 122 not moved.]
Clause 62 [Duties and powers of court]:
[Amendment No. 123 not moved.]
Clause 63 [The period of detention and training]:
[Amendments Nos. 124 and 125 not moved.]
[Amendment No. 126 not moved.]
Clause 68 [The Sentencing Advisory Panel]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 127:
Page 56, line 6, leave out from beginning to ("as") in line 7 and insert ("remuneration").
The noble Lord said: My Lords, this is a minor amendment making plain that the panel may be paid a fee. That is much simpler and in line with other such bodies. The previous formulation would have been unnecessarily complicated and might even have required a Division at this time of night. I beg to move.
On Question, amendment agreed to.
Baroness Flather Baroness Flather moved Amendment No. 128:
After Clause 69, insert the following new clause—
RACIAL AGGRAVATION: DUTY OF PROSECUTION
(" .—(1) In relation to a prosecution for any offence it shall be the duty of the prosecution to bring to the attention of the court any information or material which contains evidence that the offence was racially aggravated.
(2) Section 22 above applies for the purposes of this section as it applies for the purposes of sections 23 to 25 and 69 above.").
The noble Baroness said: My Lords, on Second Reading, I mentioned that in 1994 I had placed before your Lordships' House two amendments to a Criminal Justice Bill. One provided aggravated penalties for crimes where racial motivation was displayed; and secondly, a corollary to that, that there should be a duty on the prosecution to inform the court of any racial element in the crime.
I am grateful to the Government for putting in this Bill a comprehensive package of measures to deal with racially aggravated crime. It covers almost every eventuality. I have looked very carefully at Clause 69 and again, that places before us the ways to deal with the other clauses and puts a duty on the prosecution.
However, there is no duty on the prosecution to place before the court all the racial elements in any crime that is being dealt with. A chain breaks at its weakest link. A considerable amount of plea bargaining takes place. I shall not mention the names of noble and learned Lords who have accepted that fact and agreed that it does take place. But I am sure that noble and learned Lords on the Benches opposite know perfectly well that plea bargaining takes place. One of the elements of plea bargaining is to present a slightly more anodyne picture of the crime than may have been the case had the defendant not agreed to plead guilty to a lesser charge.
It is my greatest fear that all this superstructure, which has been built up and which gives expectations to ethnic minorities in this country, will not deliver if, somehow or the other, the actual elements of racially motivated behaviour are fudged before the courts. Therefore, I have tabled the amendment to place on the face of the Bill quite clearly a duty on the prosecution, whether or not there is plea bargaining or a plea to a lesser charge, to ensure that all racial elements in a crime are clearly placed before the courts before sentencing takes place. I beg to move.
Lord Dholakia: My Lords, I rise to express my support for the noble Baroness. She is absolutely right when she says that, in the whole process of looking at racially motivated offences, this is indeed a very weak spot. All we are seeking to do is to place a duty on the prosecution to ensure that offences which are racially aggravated are properly presented as such to the courts. That is only right because the courts, judges and magistrates now have what are commonly called, "sentencing guidelines", which take into account racially aggravated offences. However, they can only take such elements into account if they are brought to their attention.
922
We should perhaps look at the record of the Crown Prosecution Service. I was a member of the Home Office working party some years ago which went across the country to find out precisely what was happening. Repeated complaints were made stating that, whereas the police were able to identify racial aggravation factors, the CPS failed to bring those factors into the open courts. As a result, minorities who read newspapers often find that cases which they know contain elements of racial motivation are not fully examined in the courts. In turn, the magistrates and the judges are powerless to deal with the situation.
About six months ago the CPS improved its record, after a considerable amount of training. But, even now, racial motivation is not brought out in at least 20 per cent. of cases. I find it difficult to accept that situation. Unless we place such a duty on the prosecution—and that is all that the noble Baroness is asking—we shall not get to the root of the problem. I believe that it is right and proper that the CPS will, in turn, have to question the police if they fail to point out the racially aggravated factors when the files are submitted.
Once we place this particular duty upon the prosecution, I believe that the whole process will work as we expect it to work. To their credit, the Government have highlighted racially aggravated offences; indeed, they accepted my amendment on racially aggravated damages on Tuesday. I believe that this little amendment will complete the jigsaw and that that, in turn, will build the confidence of the minorities whose expectations are that people who commit such offences ought to be dealt with severely by the courts.
11 p.m.
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Baroness for tabling the amendment and also to the noble Lord, Lord Dholakia, for his intervention. I know that the noble Baroness has considerable knowledge in this area. I recall that the question of a duty on the prosecution to bring to the attention of the court all evidence relating to the racial element of the offence was one which the noble Baroness raised on Second Reading. I was not present at the time but I am also informed that she raised the same point during the passage of the Criminal Justice and Public Order Act in 1994.
The noble Baroness is absolutely right to say, as she did in 1994, that there should be a stipulation placed on the courts to regard evidence of racial motivation and hostility as an aggravating factor meriting an increased sentence. That is exactly what Clause 69 is intended to do. The noble Baroness has also said in the past that Parliament should send a strong message that racially aggravated crime is unacceptable. I hope that she would agree that the new offences do just that.
With regard to the specific points raised by this amendment, the Government recognise the importance of these matters being brought to the court's attention. Both the police and the CPS record racial incidents.

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The definition of "racial incident" was drawn up by the Association of Chief Police Officers to include any incident where it appears to a police officer that a complaint involves a racial element, or where there is an allegation of racial motivation made by any person. It is therefore a wide-ranging definition. Once the papers have been passed by the police to the CPS, the CPS will also look at the evidence to consider whether the facts amount to a racial incident and flag them up as such if the police have not.
The noble Lord, Lord Dholakia, said that some years ago the Crown Prosecution Service may not have been as effective as it should have been in relation to identifying racial incidents. The noble Lord will know that quite recently the Crown Prosecution Service issued a report specifying its racial monitoring and providing figures of the number of cases with a racial element. The figures in that report identified more cases with a racial element than those identified by the police. I am sure that one could not say that the CPS monitoring is perfect but it is much improved. I think it is right to say that it is now sensitised to racial elements in crime.
The Government do not believe that the amendment is either necessary or appropriate to create the statutory duty that both speakers have asked for. First, as the noble Baroness will know, there is already a duty on the prosecution to inform the court of all relevant circumstances relating to the offence, including aggravating features. That duty applies as much to racial aggravation as to any other feature.
Secondly, the Government believe that the creation of the new offences will strengthen existing safeguards and ensure that a higher priority is given to the identification of the racial element of the crime both in relation to the gathering and the presentation of the evidence. The prosecution will now have to consider the racial element of the crime not only as an aggravating factor but also to decide whether the evidence suggests that there is a reasonable possibility of securing a conviction under the new racially aggravated offences.
We believe that the racial element will now have a higher priority in the minds of the police and prosecutors because it forms part of the offence itself. The noble Baroness referred specifically to the practice of what she described as plea bargaining. Whatever one describes it as, it is perfectly plain that on many occasions prosecution and defence will discuss the terms on which pleas to lesser offences will be accepted. In relation to that sort of process which is perfectly proper, the prosecution—prosecuting counsel and the CPS together—have a discretion to decide what is appropriate in the public interest. I should have thought it would be wrong to single out racial aggravation as being the one area where there was not an element of discretion in that regard. In some cases it will be perfectly appropriate not to proceed with a particular charge.
We are currently considering how best to evaluate these provisions after they are implemented. This is an area which the post-introduction study could usefully
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analyse; namely, the extent to which the prosecution brought to the attention of the court racial elements. I hope that this will reassure the noble Baroness that we have come a considerable way since the debate in which she participated so effectively in 1994, and that she will be sufficiently reassured about the Government's commitment in this Bill and elsewhere to tackling racial crime that she will feel able to withdraw her amendment.
Baroness Flather: My Lords, I received an interesting answer from the Minister. I hope that all noble Lords listened as carefully as I did. The noble and learned Lord told us that it is perfectly proper to plea bargain, to get a defendant to plead to a lesser charge. It is simpler, more straightforward, more convenient; the defendant receives a sentence, and there is no trial.
There are two ways of looking at the issue. One response is that plea bargaining occurs, and it is a good thing that more defendants do not get away. Someone from the CPS to whom I spoke not so long ago asked me candidly whether I would prefer someone to get away with a crime than to be tried in court for the charge best fitted to the circumstances. I said that I would rather someone got away with it having been tried by the courts on the charge best fitted rather than to be sentenced on a charge which did not fit the offence.
I fear greatly—more than I did 10 minutes ago—that many more plea bargainings will take place as the prosecution and defence agree between themselves what should and should not be placed before the court. Far fewer cases of racially aggravated crimes will come before the courts than should if the Minister's statement is to be accepted. Clearly, it would be in the best interest of a defendant to plead guilty to a lesser charge on the basis that the racial aggravation part of the offence is not placed before the court, as the Minister said that it is perfectly proper for the prosecution and defence to agree what should be placed before the court if there is a guilty plea. I am certain that we shall not make the progress that the Bill purports to make unless the whole iceberg, and not just the tip of it, is exposed to public knowledge.
I shall not divide the House; it is not the time to do so. I shall read carefully in Hansard what the Minister said. But we live to fight another day. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128A not moved.]
Clause 71 [Extended sentences for sex and violent offenders]:
The Lord Advocate (Lord Hardie)The Lord Advocate (Lord Hardie) moved Amendment No. 129:
Page 58, line 27, at end insert—
("() indecent assault;").
The noble and learned Lord said: My Lords, in moving this amendment, I shall also speak to Amendment No. 130. Before addressing the amendments I should like to bring to your Lordships'

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attention that we propose to bring forward at Third Reading some technical amendments to the operation of Clauses 71 and 72.
Amendments Nos. 129 and 130 are technical amendments. The purpose of Amendment No. 129 is to include indecent assault in the definition of a sexual offence for the purpose of imposing an extended sentence. The reason for the amendment is to achieve consistency between the sexual offences set out in Schedule 1(2) to the Sex Offenders Act 1997 and a definition in this clause of a sexual offence in respect of which an extended sentence may be imposed.
The purpose of Amendment No. 130 is to omit the provision which would have extended the power to make supervised release orders in the case of children detained following conviction on indictment. The amendment removes a redundant provision. Children detained under Section 208 of the Criminal Procedure (Scotland) Act 1995 are subject to mandatory licence on their release. Licence always takes precedence over any supervised release order.
Subsection (2)(b) of Clause 71 would extend the court's powers to impose a supervised release order to include children detained under Section 208. In practice, that would never have effect because the licence would always apply. The provision is therefore unnecessary. The reason for tabling this amendment is to remove a redundant provision. I beg to move.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 130:
Page 59, leave out lines 45 and 46.
On Question, amendment agreed to.
The Deputy Speaker (Lord Elton): My Lords. before calling Amendment No. 131, I must tell your Lordships that, if it is agreed to, I shall not be able to call Amendment No. 131A.
Clause 80 [Offences racially aggravated]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 131:
Page 69, line 14, leave out from ("apply") to ("offence") in line 17 and insert ("when a judge imposing sentence on an accused in respect of an offence is satisfied that the").
The noble and learned Lord said: My Lords, this amendment is designed to remove part of what is now Clause 80 of the Bill, previously Clause 79, dealing with the procedure that is to apply for sentencing accused persons in Scotland when they have been convicted of offences which, in terms of the definition set out in subsection (2) of Clause 80, can be described as racially aggravated. It reflects certain reservations that I expressed at Second Reading—reservations that were fortified by a letter which the Lord Justice General of Scotland, the noble and learned Lord, Lord Rodger of Earlsferry, wrote to the Secretary of State for Scotland in October last year.
Following the Committee stage I wrote to the Lord Advocate about the matter and explained my concern, which can be put shortly. At the present time, as the
926
Lord Justice General said in his letter, he is satisfied, as indeed I am that if a sentencing judge, having heard the evidence in a trial or having heard the prosecutor narrating the circumstances of an offence falling upon a plea of guilty, is satisfied that the offence was one in which racial motivation was what lay behind it, he would take that into account as an aggravating factor. The noble and learned Lord. Lord Rodger, said in his letter that he was equally certain that the Appeal Court would support that view in the event that the trial judge's sentence was appealed against.
My concern was that by setting out the statutory procedure in the Bill, far from ensuring that racial motivation was an aggravating factor which led to higher sentence in more cases, the contrary might in fact prove to be the case. My concern was based on two matters: first, the need to libel such an aggravation in the indictment or complaint; and secondly, uncertainty, at least so far as the face of the Bill is concerned, as to the basis upon which the sentencing judge was to be satisfied that the offence had indeed been racially aggravated.
It is of interest to contrast the terms of Clause 80 with those of Clause 69, dealing with the position in England, where there is no need to set out in any charge or any document served on the defendant before the trial the detail that requires to be libelled by virtue of the provisions of Clause 80.
In seeking to meet those concerns, the noble and learned Lord the Lord Advocate has tabled two other amendments, Amendments Nos. 131A and 139A. Perhaps I may deal with the second of those first.
The need to have evidence from only one witness—in other words, to dispense with the need for corroboration—to some extent meets the second of my concerns. But the first remains. I can envisage situations where, through no fault of the prosecutor, it is not set out on the complaint or the indictment that an assault, breach of the peace or malicious mischief whatever it may be, was racially motivated. Those facts may not be apparent from the terms of the police report placed before the prosecutor. Yet, when the case proceeds to trial, it may be abundantly clear to everyone in court that there was indeed such motivation.
In that event, even if the judge were entirely satisfied that the offence had been racially motivated he would not be entitled to take that into account in sentencing. One would envisage defence counsel drawing that matter to the attention of the sheriff or the judge in public and, far from meeting the concerns of victims who are members of ethnic minorities having quite the contrary effect. When one looks at the practicalities of the matter, I am concerned that this is a very retrograde step.
One can envisage situations in sheriff and jury or High Court trials when the aggravation is libelled but, for whatever reason, the jury deletes that aggravation from the charge when a conviction is returned and yet the judge, who has listened to the case, is entirely

927
satisfied, as indeed are members of the public and the victim. The judge would be bound by the provisions of this clause to disregard the matter, contrary to the position, as I understand it, in England.
I shall be interested to hear from the noble and learned Lord the Lord Advocate what are the views of the courts in Scotland as to the amendments which he has brought forward. He has sought to meet the concerns expressed in my letter to him, but, as it is the judges who will have to operate the sentence, I believe it would be valuable for your Lordships to be informed of that. It is against the background that this may lead to practical difficulties that I move Amendment No. 131.
11.15 p.m.
Lord Hardie: My Lords, with your Lordships' permission, I shall speak to Amendment No. 131, moved by the noble and Learned Lord, Lord Mackay of Drumadoon, and to government Amendments Nos. 131A and 139A, which are grouped together. The noble and learned Lord has already referred to government Amendment No. 131A. I must apologise to your Lordships for the lack of notice given of the government amendments, but I wrote on 16th March to the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Mar and Kellie, about the Government's intentions, and a copy of the letter was placed in the Library of your Lordships' House.
I am grateful to the noble and learned Lord, Lord Mackay, for the interest he has shown in this provision and his assistance in identifying important issues which arise. The amendments which I shall move today follow from the correspondence we exchanged and which is in the Library of your Lordships' House.
All these amendments seek to clarify the standard of proof to be applied to racial aggravation in order that a judge be required when sentencing an offender to treat it as an aggravating factor.
At Committee, I undertook, in response to an amendment moved by the noble Earl, Lord Mar and Kellie, to table an amendment on the lines of Amendment No. 131A and to make a statement to clarify the proposals contained in the Bill.
It is the Government's intention that the prosecution will be required to libel in an indictment or specify in a complaint that there was racial aggravation. That is clear from the terms of Clause 80.
Perhaps I may deal with the matter which was raised by the noble and learned Lord, Lord Mackay, in his speech this evening. With the greatest of respect to the noble and learned Lord, he suggests that it may be no fault on the part of the prosecutor that the aggravation was not libelled. In investigating offences, particularly offences involving ethnic minorities, I have much more confidence that the police authorities in Scotland and procurators fiscal will be alert to raise those issues at the stage of investigation. I would be astonished if a procurator fiscal failed to include such
928
an aggravation in a charge. I do not anticipate, therefore, that situations will arise where the aggravation was not libelled.
Furthermore, in relation to a jury deleting the aggravation, that is the same as any other aggravation. The jury has heard the evidence and it will be for the jury in a jury case, or for a judge sitting alone in a summary case, to decide whether the aggravation has been made out. If the sheriff sitting alone or the jury decide that the aggravation has not been made out, the proper thing for them to do is to delete the aggravation, just as they would delete any other aggravation.
In that situation, it would be inconceivable that the judge, notwithstanding the verdict of the jury. should take it upon himself to impose a sentence which did not reflect the verdict of the jury; and took it upon himself to conclude that he or she should impose a greater sentence because he or she thought there was racial aggravation, notwithstanding the views of the jury who had heard the evidence and whose responsibility it is to determine the factual basis on which the judge should sentence.
It is clear from the amendment that I tabled that the charge and the complaint in the indictment would require to be established to the normal criminal standard of proof; namely, proof beyond reasonable doubt. But in the amendment I also made clear that the aggravation would not require corroborated evidence. That is entirely fair and appropriate and consistent with our rules of evidence in other crimes in relation to aggravations.
The Government had always intended that the racial aggravation should not require corroboration. Arguably, that is the effect of the clause as it stands, but in view of the concerns raised by the noble and learned Lord, we think it preferable to put the matter beyond doubt by means of Amendment No. 139A. However, the amendment moved by the noble and learned Lord, Lord Mackay of Drumadoon, would remove (or specify) that the offence was racially aggravated. It would also leave the decision on sufficiency of evidence to the judge, notwithstanding the views of the jury, with which I dealt a few moments ago.
Racial aggravation is a serious matter which, if proved, would lead to an increased sentence. An accused person should be given proper notice of such an element when preparing for trial. Whatever the practice in other jurisdictions, it is the practice in Scotland to give accused persons fair and full notice of the charge or charges which they face, including aggravations. It would be no different in the case of racially aggravated offences.
As I indicated, the police and the Crown should be able to identify the aggravation at the stage of investigation to enable charges to be properly framed. I also believe it is appropriate and necessary that the prosecution be required to prove the aggravation before the aggravation can be taken into account at the stage of sentence.

929
The noble and learned Lord raised the hypothetical case where evidence of racial aggravation might arise during the course of a trial that had not been set out in the charges. It is our belief that where the racial element is sufficiently serious to justify being reflected in the sentence, it would have been evident at the time of the investigation and should properly be taken into account when preparing the charges and should in fact be featured in them to enable the court to impose the higher sentence.
We believe that this provision strikes the right balance between the need to take firm action to combat racial offences and the need to ensure fairness to the accused. In those circumstances, I would ask the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, perhaps I should indicate that, in view of the lateness of the hour, I do not intend to press the amendment. However, I think it appropriate to respond briefly to one or two of the points that the Lord Advocate has made.
First, it was suggested that in some way the comments I made involved a criticism of, or a lack of faith in, the ability of the police or the procurator fiscal service to investigate crimes properly. I made no such suggestion explicitly and I hope that no such suggestion was implicit in anything I said. However, I take the same view as the Lord Justice—General took in his letter that such a motive may emerge during the course of evidence. In my experience as both a prosecutor and as a defence solicitor and counsel, I have had occasions when it was abundantly obvious to all the lawyers in the room that a piece of evidence which had emerged, whether from a Crown witness or a defence witness, had come as a surprise to all concerned. It is that which I had in mind in making the suggestion that I did.
So far as the need to label and prove such aggravations and how it would be inappropriate for a judge to take account of such aggravations in questions of sentence, I cannot get away from a point that has been made on more than one occasion in our debates on the Bill that none of this would be relevant were the offence to be one which was religiously motivated as opposed to one which was racially motivated. Therefore, I remain concerned that this will lead to practical difficulties.
I note that the noble and learned Lord the Lord Advocate did not respond to my invitation to inform your Lordships as to what the court thinks of these proposals, thinks of this clause and thinks of these amendments in view of what was said by the senior judge, the Lord Justice—General, in his letter.
However, having regard to the lateness of the hour, it would not be appropriate to press the amendment to a Division. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hardie Lord Hardie moved Amendment No. 131A:
930
Page 69, line 17, leave out ("to the satisfaction of any court").
The noble and learned Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 132 to 139 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 139A:
Page 69, line 26, at end insert—
("and evidence from a single source shall he sufficient evidence to establish, for the purposes of this subsection that an offence is racially aggravated.").
The noble and learned Lord said: My Lords, 1 have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 140 not moved.]
Clause 81 [Remands and committals of children and young persons]:
The Deputy Speaker: My Lords, if Amendment No. 141 is agreed to, I shall not be able to call Amendments Nos. 142 or 143.
[Amendment No. 141 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 142.
Page 69, line 35, leave out ("(5)") and insert ("(4)").
The noble and learned Lord said: My Lords, the Government are grateful to the human rights organisation, Liberty, for drawing the Government's attention to this potential anomaly relating to the legal representation of juveniles awaiting remand to secure accommodation. Clause 81 makes provision for the implementation of court—ordered secure remands. Clause 82 makes alternative arrangements for 15 and 16 year—old boys. In the latter case the current relevant legislation is Section 23 of the Children and Young Persons Act 1969 as modified by the transitory arrangements in Section 62 of the Criminal Justice Act 1991.
Subsection (4A) of Section 23 as modified by those provisions provides that a court shall not remand a 15 or 16 year—old boy to prison who is not legally represented unless he has applied for legal aid and the application was refused upon the grounds he had sufficient means, or having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply. The legal representation restriction is carried forward in Clause 82.
Clause 81, however, is based upon Section 23 of the 1969 Act as substituted by Section 60 of the 1991 Act, without the modifications in Section 62. That version does not contain a legal representation restriction comparable to subsection (4A). The result is that 15 and 16 year—old boys would need to be legally represented before they can be remanded by a court direct to secure accommodation while 12 to 14 year—olds and 15 and 16 year—old girls would not.
These four amendments correct this anomaly so that all juveniles facing the prospect of a court—ordered secure remand will need to be legally represented. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment Nos. 143 and 144:
Page 69, line 36, after ("accommodation),") insert ("for the words "Subject to subsection (5) below," there shall he substituted the words "Subject to subsections (5) and (5A) below,".
() In subsection (5) of that section").
Page 69, line 39, at end insert—
("() After that subsection there shall he inserted the following subsection—
"(5A) A court shall not impose a security requirement in respect of a child or young person who is not legally represented in the court unless—

(a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or

(b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply." ").

On Question, amendments agreed to.
Clause 82 [Remands and committals: alternative provision for 15 or 16 year old boys]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 145:
Page 70, line 12, leave out ("and (5)") and insert ("to (5A)").
On Question, amendment agreed to.
Clause 83 [Power to release short—term prisoners on licence]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 146:
Page 71. line 30, after ("prisoner") insert ("aged 18 or over").
The noble Lord said: My Lords, in moving Amendment No. 146, 1 speak also to Amendment Nos. 147, 149, 150, 152 and 211. These amendments relate to those released from prison under home detention curfew on an electronic monitoring basis. Amendments Nos. 146, 149 and 150 restrict release under curfew to those aged 18 or over but with a power to amend that restriction. As regards Amendment No. 147, prisoners who are in custody as a result of breach of an electronically monitored curfew order will not be eligible for release on home detention curfew. Amendment No.152 establishes a means for offenders recalled to prison to be given the reasons for their recall and provides that they can make representations against the decision. Amendment No. 211 provides the phasing in of home detention curfew.
I undertook to respond to the amendment of the noble Baroness, Lady David, which would have made 10 to 15 year—olds ineligible for home detention curfew. We recognised at the time the special considerations applying to them. That is why we are trialling court ordered monitoring orders for 10 to 15 year—olds separately from those for offenders aged 16 and over. We do not want to rule out the possibility that juveniles may at a future date be assisted by being considered
932
for release under home detention curfew. Therefore, we intend to restrict the scheme when it starts to those aged 18 and over, as proposed in Amendment No. 146.
Amendments Nos. 149 and 150 provide, subject to affirmative resolution, that that restriction can be repealed. We shall not take such a step before the trials of the curfew orders on 10 to 15 year—olds have been fully evaluated.
Clause 83 has a list of categories of offenders who will not be eligible for release. I made the point in a letter to the noble Lord, Lord Henley, a copy of which is in the Library, that those who fail to comply with a court ordered electronically monitored curfew order and as a result receive a custodial sentence should not benefit from release. That is the purpose of Amendment No. 147. 1 believe that I have explained Amendment No. 152 sufficiently.
Amendment No. 211 deals with providing a tapered introduction of the home detention curfew, so that there is not an unmanageably large number of releases on the first day of the scheme. With those explanations, I beg to move.
Lord Goodhart: My Lords, I am sorry at this hour to rise in response to the Minister's introduction of this group of amendments. I welcome the fact that by tabling these amendments the noble Lord has done what he undertook to do, which is to provide for pilot schemes to see whether tagging will work for under—16s. In the amendment which the noble Baroness, Lady David, moved in Committee, and which I supported, we pointed out the problems which might arise with the tagging of juveniles under 16. What concerns me is the fact that if the pilot schemes do not work, it appears to be the Government's intention to rule out altogether the possibility of the release on licence of the juveniles who are undergoing such sentences. Therefore, I must express more of a reservation than a welcome to the Minister's amendments, although this is not something on which I would seek to divide the House.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 147:
Page 71, line 38, at end insert—
("() the sentence was imposed under paragraph 3(1)(d) or 4(1)(d) of Schedule 2 to this Act in a case where the prisoner had failed to comply with a requirement of a curfew order;").
On Question, amendment agreed to.
Baroness Anelay of St. Johns Baroness Anelay of St. Johns moved Amendment No. 148:
Page 72, line 16, at end insert—
("() The Secretary of State shall publish guidance as to the criteria which will qualify a prisoner for early release under this section.").
The noble Baroness said: My Lords, this amendment would make it a requirement for the Secretary of State to publish guidance as to the criteria which would qualify a prisoner for early release under the provisions of Clause 83.
I moved a similar amendment in Committee and I shall not abuse Report stage proceedings or the patience of noble Lords at this hour by repeating all those arguments at length. However, the nub of the issue is that three months ago, at Second Reading when I raised this issue, the noble Lord, Lord Williams of Mostyn, wrote to my noble friend Lord Henley, stating:
"I hope that we shall be in a position to show draft guidance on eligibility to the House by the time these provisions are considered in Committee".
In Committee, on 3rd March, the noble and learned Lord, Lord Falconer of Thoroton, responded to my amendment and he reaffirmed that it is the Government's intention to publish the criteria as part of the more detailed guidance that the Prison Service will use to assess suitability for home detention curfew. He said that the Government were currently preparing guidance and hoped to issue it shortly.
I believe that it is important that we have sight of the guidance before Third Reading. I think I am being extremely patient in waiting from Second Reading to Committee and now to Report stage in trying to learn what the Government mean by "shortly". I should be grateful if the noble Lord could tell us tonight—it is almost morning!—what stage that preparation of the guidance has now reached. I beg to move.
Lord Williams of Mostyn: My Lords, the noble Baroness has been patient. Time has passed. Work is still going on with the Prison and Probation Services to make sure that we get the guidance absolutely right. I am sorry that we have not yet been able to make the guidance available. I cannot say anything more attractively positive than that, but as soon as I have any clearer indication I shall write at once to the noble Baroness and ensure that a copy of that letter is placed in the Library.
The assessment will be on the basis of the potential threat to the public, the probability of reoffending or of failure to comply with conditions of curfew. We are in a new area and we have to be patient while officials work on these matters. I recognise that the position is not entirely satisfactory, but truthfully I am not able to give a more positive response.
Baroness Anelay of St. Johns: My Lords, I am grateful to the Minister for his frank reply. I am sure that my patience can be extended a little further. I may well return to this matter at Third Reading in the hope that by then the Minister has been able to conclude his deliberations. I understand that the regulations break new ground and that many different considerations must he taken into account. I cannot say that I am grateful for the extent of the noble Lord's answer but certainly I appreciate his courtesy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 149:
Page 72, line 25. at end insert—
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("() repeal the words "aged 18 or over" in subsection (1) above;").
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 150:
Page 72. line 29, at end insert ("repeal or").
On Question, amendment agreed to.
Clause 84 [Curfew condition to be included in licence]:
[Amendment No.151 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 152:
Page 73. line 39. at end insert—
("(1A) A person whose licence under section 34A(3) above is revoked under this section—

(a) may make representations in writing with respect to the revocation:

(b) on his return to prison, shall he informed of the reasons for the revocation and of his right to make representations.

(1B) The Secretary of State, after considering any representations made under subsection (1A)(b) above or any other matters, may cancel a revocation under this section.
(1C) Where the revocation of a person's licence is cancelled under subsection (1B) above, the person shall be treated for the purposes of sections 34A(2)(e) and 37(1B) above as if he had not been recalled to prison under this section.").
On Question, amendment agreed to.
Lord Alton of Liverpool Lord Alton of Liverpool had given notice of his intention to move Amendment No. 153:
Before Clause 88, insert the following new clause—
VIDEO RECORDINGS DESIGNATION
(" .—(1) In subsection (1)(a) of section 4 of the Video Recordings Act 1984 ("the 1984 Act") at the end, there shall he inserted the words "and having special regard to the likelihood of video works, in respect of which such certificates have been issued inciting their viewers to anti—social behaviour, crime or disorder".
(2) At the end of section 4 of the 1984 Act there shall he inserted the following new subsection—
"(9) The Secretary of State shall not make any designation under this section unless he is satisfied that adequate arrangements will he made for an appeal in prescribed circumstances against a determination on the grounds that a video work submitted for the issue of a classification is likely to incite its viewers to anti—social behaviour crime or disorder.".").
The noble Lord said: My Lords, more than 50 noble Lords from all parts of the House have generously supported this amendment, but in view of the lateness of the hour I believe that it would be inappropriate to move it. I hope to re-introduce the amendment at Third Reading.
[Amendment No. 153 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 154:
After Clause 91. insert the following new clause—
DEPUTY AUTHORISING OFFICER UNDER PART III OF POLICE. ACT 1997
(".—(1) In subsection (1) of section 94 of the Police Act 1997 (authorisations given in absence of authorising officer). for the words "(f) or (g)" there shall he substituted the words "(f). (g) or
(2) In subsection (4) of that section the word "and" immediately preceding paragraph (c) shall cease to have effect and after that paragraph there shall he inserted the words "and
(d) in the case of an authorising officer within paragraph (h) of section 93(5),means the customs officer designated by the Commissioners of Customs and Excise to act in his absence for the purposes of this paragraph."").
The noble Lord said: My Lords, the purpose of the proposed new clause is to cure a minor but inconvenient defect in Part III of the Police Act 1997. By virtue of this part, police and customs officers may be authorised to enter and interfere with property for the purposes of the prevention or detection of serious crime without fear of claims of civil trespass or criminal damage. Part III is due to come into force early this summer.
The Act provides for a designated officer within each police force or other agency to authorise such operations. In HM Customs and Excise the proposal is to designate the chief investigation officer as the authorising officer. The Act also provides for the various agencies specified in the Act, but not customs, to have designated deputies to the authorising officers to act in their absence. Finally, the Act provides for urgent authorisations lasting 72 hours only to be made in writing by other senior police or customs officers.
The Act in its current form, however, enables the Commissioners of Customs and Excise to designate only one customs officer, the chief investigation officer, as the authorising officer and there is no provision to delegate a deputy to act as the authorising officer in his absence. As the Act currently stands, therefore, the chief investigation officer would be required personally to authorise all such operations or renew in writing within 72 hours every urgent authorisation given in writing by assistant chief investigation officers. This would clearly he impracticable given the other commitments of the chief investigation officer as the head of the Customs National Investigation Service. It is therefore necessary that this clause is introduced to rectify the position by enabling the deputy chief investigation officer to act as the authorising officer in the absence of the chief investigation officer. This clause will mirror the police arrangements under the Act.
With due apologies for appearing in this orchestra as the glockenspiel that plays two notes and then has 1,000 bars of tacet before coming back again. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 155:
After Clause 92, insert the following new clause—
DISCLOSURE OF INFORMATION
(" .—(1) Any person who, apart from this subsection would not have power to disclose information—

(a) to a relevant authority; or

(b) to a person acting on behalf of such an authority,

shall have power to do so in any case where the disclosure is necessary or expedient for the purposes of any provision of this Act.
(2) In subsection (1) above "relevant authority" means—

(a) the chief officer of police for a police area in England and Wales:

the chief constable of a police force maintained under the Police (Scotland) Act 1967;

936

(c) a police authority within the meaning given by section 101(1) of the Police Act 1996;

(d) a local authority, that is to say—

(i) in relation to England, a county council, a district council, a London borough council or the Common Council of the City of London;

(ii) in relation to Wales, a county council or a county borough council;

(iii) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

(e) a probation committee in England and Wales;

(f) a health authority.").

The noble Lord said: My Lords, I shall speak also to Amendment No. 160. Amendment No. 155 relates to the sharing of information. I gave an assurance to my noble friend Lady Hilton in Committee about concerns which related to disclosure or use of personal information where necessary or expedient for the purposes of the Bill. The purpose of the new clause is to provide power where there is none to allow for the disclosure by any person of information to relevant authorities or persons acting on their behalf, which is necessary or expedient for the purposes of the Bill.
The authority to share information is essential to the partnership approach to crime and disorder which the Bill requires. Much sharing already occurs between agencies under existing statutory and common law powers; for instance, between police, probation service and others. We are concerned that there should be no gaps.
I shall make three short points. First, the amendment gives a power to disclose. It goes no further than that. Secondly, the disclosure is limited to that to and between the relevant statutory authorities—local authorities, police, probation service and health authorities, and those acting on their behalf. It is limited to what is necessary or expedient for the Bill, and goes no further.
Thirdly, the clause covers only those occasions where the power to disclose does not already exist. It does not therefore override existing powers or interfere with existing conventions or protocols. It merely means that a body or an individual may be certain of the power to disclose information. Amendment No. 160 contains a consequential amendment to ensure that this provision applies also to Scotland. I beg to move.
On Question, amendment agreed to.
Clause 94 [General interpretation]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 156:
Page 78, leave out line 20.
The noble Lord said: My Lords, I shall speak to Amendments Nos. 156 to 221. I point out for your Lordships' assistance that Amendments Nos. 168, 177 and 191 have been withdrawn and replaced by Amendments Nos. 168A, 177A and 191A.
I could if pressed, indeed tempted, explain all the amendments in some detail, if only to get our own back. I shall not do that. The purposes of the amendments are dealt with fully, I hope in the letters of 11th and 12th March which I sent to the noble Lord. Lord Henley,

937
and copies of which I placed in the Library. They are technical amendments, and that is why, if it is convenient to your Lordships, at this time, in these circumstances, I shall deal with the amendments in that way.
I have already spoken to other amendments in the group. As I say, I am at your Lordships' disposal, but I do not believe that a further illumination or elucidation will be enormously helpful, bearing in mind, I hope, that the ground has been fully laid, as I indicated. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 157 to 162:
Page 78, line 31, at end insert—
("(1A) In this Act—
"the 1993 Act" means the Prisoners and Criminal Proceedings (Scotland) Act 1993; and
"the 1995 Act" means the Criminal Procedure (Scotland) Act 1995.").
Page 79, line 12, after ("section,") insert ("section 91 above").
Page 79, line 26, leave out ("and 91") and insert (", 91 and 94(1A)").
Page 79, line 30, at end insert—
("( ) section (Disclosure of information);").
Page 79, line 33, after ("(3),") insert ("23, 23A,").
Before Schedule 1, insert the following new schedule—
("SCHEDULE
SCHEDULE 2A TO THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
SECTION 54(2C)
"SCHEDULE 2A
RETENTION AND DISPOSAL OF PROPERTY SEIZED UNDER SECTION
54(2A) OE THIS ACT
Application
1. This schedule applies to property seized under section 54(2A) of this Act.
Retention
2.—(1) Subject to sub-paragraph (2) below, property to which this Schedule applies may be retained for a period of twenty—eight days beginning with the day on which it was seized.
(2) Where proceedings for an offence are instituted within the period specified in sub-paragraph (1) above against any person, the property may he retained for a period beginning on the day on which it was seized and ending on the day when—

(a) the prosecutor certifies that the property is not, or is no longer, required as a production in criminal proceedings or for any purpose relating to such proceedings;

(b) the accused in such proceedings—

(i) is sentenced or otherwise dealt with for the offence; or

(ii) is acquitted of the offence: or

(c) the proceedings are expressly abandoned by the prosecutor or are deserted simpliciter.

Arrangements for custody of property
3.—(1) Subject to the proviso to section 17(3)(b) of the Police (Scotland) Act 1967 (duty to comply with instructions received from prosecutor), the chief constable shall, in accordance with the
938
provisions of this Schedule, make such arrangements as he considers appropriate for the care, custody, return or disposal of property to which this Schedule applies.
(2) Any reference in this Schedule to property being in the possession of, delivered by or disposed of by, the chief constable includes a reference to its being in the possession of, delivered by or disposed of by, another person under arrangements made under sub-paragraph (1) above.
Disposal
4. Where the period of retention permitted by paragraph 2 above expires and the chief constable has reason to believe that the person from whom the property was seized is not the owner or the person having right to possession of it, he shall take reasonable steps to ascertain the identity of the owner or of the person with that right and to notify him of the procedures determined under paragraph 5(1) below.
5.—(1) Subject to sub-paragraphs (5) and (6) below, the owner or any person having right to possession of any property to which this Schedule applies and which, at the expiry of the period of retention permitted by paragraph 2 above, is in the possession of the chief constable may at any time prior to its disposal under paragraph 6 below claim that property in accordance with such procedure as the chief constable may determine.
(2) Subject to sub-paragraphs (3), (5) and (6) below, where the chief constable considers that the person making a claim in accordance with the procedure determined under sub-paragraph (1) above is the owner of the property or has a right to possession of it, he shall deliver the property to the claimant.
(3) Subject to sub-paragraph (4) below, the chief constable may impose such conditions connected with the delivery to the claimant of property under sub-paragraph (2) above as he thinks fit and without prejudice to that generality, such conditions may relate to the payment of such reasonable charges (including any reasonable expenses incurred in relation to the property by or on behalf of him) as he may determine.
(4) No condition relating to the payment of any charge shall be imposed by the chief constable on the owner or person having right of possession of the property where he is satisfied that that person did not know, and had no reason to suspect that the property to which this Schedule applies was likely to he used in a manner which gave rise to its seizure.
(5) This paragraph does not apply where the period of retention expires in such manner as is mentioned in paragraph 2(2)(b)(i) above and the court by which he was convicted has made a suspended forfeiture order or a restraint order in respect of the property to which this Schedule applies.
(6) This paragraph shall cease to apply where at any time—

(a) the property to which this Schedule applies—

(i) is seized under any other power available to a constable; or

(ii) passes into the possession of the prosecutor; or

(b) proceedings for an offence are instituted, where the property to which this Schedule applies is required as a production.

6.—(1) Where this sub-paragraph applies, the chief constable may—

(a) sell property to which this Schedule applies; or

(b) if in his opinion it would be impracticable to sell such property, he may dispose of it.

(2) Sub-paragraph (1) above applies—

(a) at any time after the expiry of the relevant period where, within that period—

(i) no claim has been made under paragraph 5 above; or

(ii) any such a claim which has been made has been rejected by the chief constable: and

939

(b) where a claim has been made under paragraph 5 above and not determined within the relevant period, at any time after the rejection of that claim by the chief constable.

(3) In sub-paragraph (2) above, the "relevant period" means a period of six months beginning with the day on which the period of retention permitted by paragraph 2 above expired.
(4) Sections 71, 72 and 77(1) of this Act shall apply to a disposal under this paragraph as they apply to a disposal under section 68 of this Act.
Appeals
7.—(1) A claimant under sub-paragraph (2) of paragraph 5 above may appeal to the sheriff against any decision of the chief constable made under that paragraph as respects the claim.
(2) The previous owner of any property disposed of for value under paragraph 6 above may appeal to the sheriff against any decision of the chief constable made under section 72 of this Act as applied by sub-paragraph (4) of that paragraph.
(3) Subsections (3) to (5) of section 76 of this Act shall apply to an appeal under this paragraph as they apply to an appeal under that section.
Interpretation
8. In this Schedule—
"chief constable" means the chief constable for the police area in which the property to which this Schedule applies was seized, and includes a constable acting under the direction of the chief constable for the purposes of this Schedule;
"restraint order" shall be construed in accordance with section 28(1) of the Proceeds of Crime (Scotland) Act 1995;
"suspended forfeiture order" shall be construed in accordance with section 21(2) of that Act." ").
On Question, amendments agreed to.
Schedule 2 [Procedure where persons are sent for trial under section 42]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 163 and 164:
Page 83, leave out lines 39 to 41 and insert ("shall, on or before the relevant date—

(a) be served on that person; and

(b) be given to the Crown Court sitting at the place specified in the notice under subsection (5) of that section.

(2) In sub-paragraph (1) above "the relevant date" means the date prescribed by the regulations.").
Page 86, line 4, at end insert—
("Power of justice to take depositions etc.
.—(1) Sub-paragraph (2) below applies where a justice of the peace for any commission area is satisfied that—

(a) any person in England and Wales ("the witness") is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings for an offence for which a person has been sent for trial under section 42 of this Act by a magistrates' court for that area; and

(b) the witness will not voluntarily make the statement or produce the document or other exhibit.

(2) In such a case the justice shall issue a summons directed to the witness requiring him to attend before a justice at the time and place appointed in the summons, and to have his evidence taken as a deposition or to produce the document or other exhibit.
(3) If a justice of the peace is satisfied by evidence on oath of the matters mentioned in sub-paragraph (1) above, and also that it is probable that a summons under sub-paragraph (2) above would
940
not procure the result required by it, the justice may instead of issuing a summons issue a warrant to arrest the witness and to bring him before a justice at the time and place specified in the warrant.
(4) A summons may also be issued under sub-paragraph (2) above if the justice is satisfied that the witness is outside the British Islands, but no warrant may be issued under sub-paragraph (3) above unless the justice is satisfied by evidence on oath that the witness is in England and Wales.
(5) If—

(a) the witness fails to attend before a justice in answer to a summons under this paragraph;

(b) the justice is satisfied by evidence on oath that the witness is likely to be able to make a statement or produce a document or other exhibit as mentioned in sub-paragraph (1)(a) above;

(c) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons and that a reasonable sum has been paid or tendered to him for costs and expenses; and

(d) it appears to the justice that there is no just excuse for the failure,

the justice may issue a warrant to arrest the witness and to bring him before a justice at the time and place specified in the warrant.
(6) Where—

(a) a summons is issued under sub-paragraph (2) above or a warrant is issued under sub-paragraph (3) or (5) above; and

(b) the summons or warrant is issued with a view to securing that the witness has his evidence taken as a deposition,

the time appointed in the summons or specified in the warrant shall be such as to enable the evidence to be taken as a deposition before the relevant date.
(7) If any person attending or brought before a justice in pursuance of this paragraph refuses without just excuse to have his evidence taken as a deposition, or to produce the document or other exhibit, the justice may do one or both of the following—

(a) commit him to custody until the expiration of such period not exceeding one month as may be specified in the summons or warrant or until he sooner has his evidence taken as a deposition or produces the document or other exhibit;

(b) impose on him a fine not exceeding £2,500.

(8) A fine imposed under sub-paragraph (7) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.
(9) If in pursuance of this paragraph a person has his evidence taken as a deposition, the clerk of the justice concerned shall as soon as is reasonably practicable send a copy of the deposition to the prosecutor and the Crown Court.
(10) If in pursuance of this paragraph a person produces an exhibit which is a document, the clerk of the justice concerned shall as soon as is reasonably practicable send a copy of the document to the prosecutor and the Crown Court.
(11) If in pursuance of this paragraph a person produces an exhibit which is not a document, the clerk of the justice concerned shall as soon as is reasonably practicable inform the prosecutor and the Crown Court of that fact and of the nature of the exhibit.
(12) In this paragraph—
"prescribed" means prescribed by rules made under section 144 of the 1980 Act;
"the relevant date" has the meaning given by paragraph 1(2) above.").
On Question, amendments agreed to.
Schedule 3 [Enforcement etc. of drug treatment and testing orders]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 165:
Page 92, line 40, at end insert—
("( ) Paragraph 6A above shall apply for the purposes of this paragraph as it applies for the purposes of paragraph 3 above, but as if for the words "paragraph 3(1)(d) above" there were substituted the words "paragraph 14A(5)(b) below".").
On Question, amendment agreed to.
Schedule 4 [Enforcement etc. of reparation and action plan orders]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 166:
Page 95, line 42, after ("from") insert ("subsection (4B) of section 18 and").
On Question, amendment agreed to.
Schedule 6 [Pre-consolidation amendments: powers of criminal courts]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 167 to 196:
Page 99, line 15, at end insert—
("(3) After subsection (5) of that section there shall be added the following subsection—
"(6) In relation to any other child or young person, references in this section to his parent shall be construed in accordance with section 1 of the Family Law Reform Act 1987." ").
Page 99, leave out line 25 and insert—
("(3) Subsection (3) of that section shall cease to have effect.
(4) For subsection (5) of that section there shall be substituted the following subsections—
"(5) Where under subsection (1) above a magistrates' court commits a person to he dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates' court could deal with him if it had just convicted him of the offence.
(5A) Subsection (5) above does not apply where under subsection (1) above a magistrates' court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the powers under section 23 of the Powers of Criminal Courts Act 1973 (power of court to deal with suspended sentence) shall be exercisable by the Crown Court.
(5B) Without prejudice to subsections (5) and (5A) above, where under subsection (1) above or any enactment to which this section applies a magistrates' court commits a person to be dealt with by the Crown Court, any duty or power which, apart from this subsection, would fall to be discharged or exercised by the magistrates' court shall not be discharged or exercised by that court but shall instead be discharged or may instead be exercised by the Crown Court.
(5C) Where under subsection (1) above a magistrates' court commits a person to be dealt with by the Crown Court in respect of an offence triable only on indictment in the case of an adult (being an offence which was tried summarily because of the offender's being under 18 years of age), the Crown Court's powers under subsection (5) above in respect of the offender after he attains the age of 18 years shall be as follows—

(a) it may impose a fine not exceeding £5,000; or

(b) it may deal with the offender in respect of the offence in any way in which the magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(5D) For the purposes of this section the age of an offender shall be deemed to be that which it appears to the court to be after considering any available evidence."
(5) Subsection (13) of that section shall cease to have effect.").
Page 99, line 27, leave out ("section 7(8)") and insert ("subsection (8) of section 7").
Page 99, line 30, at end insert—
("(2) After that subsection there shall be added the following subsection—
"(9) The reference in subsection (8) above to a person's parent shall be construed in accordance with section 1 of the Family Law Reform Act 1987 (and not in accordance with section 70(1A) of this Act)." ").
Page 99, line 44, at end insert—
("( ) for the words "his detention in pursuance of a hospital order under Part III" there shall be substituted the words "the making of a hospital order or guardianship order within the meaning";").
Page 99, line 46, at end insert—
("( ) after that paragraph there shall be inserted the following paragraph—
"(aa) treatment by or under the direction of a chartered psychologist specified in the order;";").
Page 100, line 5, at end insert ("and "chartered psychologist" means a person for the time being listed in the British Psychological Society's Register of Chartered Psychologists." ").
Page 100, line 5, at end insert—
("(3) After subsection (2) of that section there shall be added the following subsection—
"(3) Subsections (2) and (3) of section 54 of the Mental Health Act 1983 shall have effect with respect to proof for the purposes of subsection (1) above of a supervised person's mental condition as they have effect with respect to proof of an offender's mental condition for the purposes of section 37(2)(a) of that Act." ").
Page 100, line 8, leave out from ("In") to third ("of') and insert ("subsection (1)(a) of section 16A of the 1969 Act (application of sections 17 to 19").
Page 100, line 10, at end insert—
("(2) In subsection (2)(b) of that section—

(a) in sub-paragraph (i), after the word "from" there shall be inserted the words "subsection (4A) of section 18 and"; and

(b) in sub-paragraph (ii), for the words "subsection (6)" there shall be substituted the words "subsection (4B) of section 18 and subsection (6) of section 19".").

Page 100, line 41, at end insert—
(".—(1) In subsection (9) of section 1B of the 1973 Act (commission of further offence by person conditionally discharged), for the words from "those which" to the end there shall be substituted the words "powers to do one of the following—

(a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made; or

(b) to deal with the offender for that offence in any way in which a magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(2) Subsection (10) of that section (which is superseded by provision inserted by this Schedule in section 57 of the 1973 Act) shall cease to have effect.").
Page 100, line 43, after ("discharge),") insert—
("(a) in paragraph (a), for the words "the following provisions" there shall be substituted the words "section 1B"; and
(b)")
Page 100, line 44, at end insert—
(". In section 2(1) of the 1973 Act (probation orders), the words from "For the purposes" to "available evidence" (which are superseded by provision inserted by this Schedule in section 57 of the 1973 Act) shall cease to have effect.").
Page 101, line 22, leave out from beginning to ("for") in line 23 and insert—
(".—(1) In subsection (1) of section 14 of the 1973 Act (community service orders in respect of convicted persons), after the word "imprisonment", in the first place where it occurs, there shall be inserted the words "(not being an offence the sentence for which is fixed by law or falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997)".
(2) In that subsection, after the words "young offenders" there shall he inserted the words "; and for the purposes of this subsection a sentence falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997 if it is required by that provision and the court is not of the opinion there mentioned".
(3) In subsection (7) of that section,").
Page 102, line 2, at end insert—
("( ) In subsection (6) of that section—

(a) the words "about committal by a magistrates' court to the Crown Court" shall cease to have effect; and

(b) after the words "dealt with him" there shall be inserted the words "or could deal with him".").

Page 102, line 20, at end insert—
(". In section 46 of the 1973 Act (reports of probation officers), after subsection (2) there shall be added the following subsection—
"(3) For the purposes of this section—

(a) references to an offender's parent shall be construed in accordance with section 1 of the Family Law Reform Act 1987; and

(b) "guardian" has the same meaning as in the Children and Young Persons Act 1933." ").

Page 102, line 30, at end insert—
("(2) After subsection (6) of that section there shall be added the following subsection—
"(7) For the purposes of any provision of this Act which requires the determination of the age of a person by the court, his age shall be deemed to he that which it appears to the court to he after considering any available evidence." ").
Page 103, line 19, at end insert—
(" .—(1) In subsection (2) of section 38 of the 1980 Act (committal for sentence on summary trial of offence triable either way), the words ", in accordance with section 56 of the Criminal Justice Act 1967," shall cease to have effect.
(2) After that subsection there shall be inserted the following subsection—
"(2A) Where the court commits a person under subsection (2) above, section 56 of the Criminal Justice Act 1967 (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly."
.—(1) In subsection (2) of section 38A of the 1980 Act (committal for sentence on indication of guilty plea to offence triable either way), the words ", in accordance with section 56 of the Criminal Justice Act 1967," shall cease to have effect.
(2) In subsection (5) of that section, for the words "the court might have dealt with him" there shall be substituted the words "the magistrates' court could deal with him if it had just convicted him of the offence".
(3) After that subsection there shall be inserted the following subsection—
"(5A) Where the court commits a person under subsection (2) above, section 56 of the Criminal Justice Act 1967 (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly." ").
Page 103, line 43, leave out from beginning to ("there") in line 44 and insert—
(".—(1) In subsection (1) of section 17 of the 1982 Act (attendance centre orders), for the words "Subject to subsections (3) and (4) below," there shall be substituted the words "Where a person
944
under 21 years of age is convicted by or before a court of an offence punishable with imprisonment (not being an offence the sentence for which is fixed by law or falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997), or".
(2) In that subsection, for paragraph (a) there shall he substituted the following paragraph—
"(a) would have power, but for section 1 above, to commit a person under 21 years of age to prison in default of payment of any sum of money or for failing to do or abstain from doing anything required to he done or left undone, or".
(3) In that subsection, in paragraph (b), for the words "any such person" there shall be substituted the words "a person under 21 years of age" and after that paragraph").
Page 103, line 47, at end insert—
("( ) After that subsection there shall be inserted the following subsection—
"(1A) For the purposes of subsection (1) above—

(a) the reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders; and

(b) a sentence falls to be imposed under section 2(2), 3(2) or 4(2) of the Crime (Sentences) Act 1997 if it is required by that provision and the court is not of the opinion there mentioned." ").

Page 104, line 10, at end insert—
(" .—(1) In section 18 of the 1982 Act (discharge and variation of attendance centre orders), for subsection (4A) there shall be substituted the following subsections—
"(4A) Any power conferred by this section—

(a) on a magistrates' court to discharge an attendance centre order made by such a court, or

(b) on the Crown Court to discharge an attendance centre order made by the Crown Court,

includes power to deal with the offender, for the offence in respect of which the order was made, in any manner in which he could have been dealt with for that offence by the court which made the order if the order had not been made.
(4B) A person sentenced by a magistrates' court under subsection (4A) above for an offence may appeal to the Crown Court against the sentence."
(2) Subsection (7) of that section shall cease to have effect.
(3) In that section, after subsection (9) there shall be added the following subsections—
"(10) Where an offender has been ordered to attend at an attendance centre in default of the payment of a sum of money or for such a failure or abstention as is mentioned in section 17(1)(a) above, subsection (4A) above shall have effect in relation to the order as if the words ", for the offence in respect of which the order was made," and "for that offence" were omitted.
(11) Where an attendance centre order has been made on appeal, for the purposes of this section it shall be deemed—

(a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;

(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court;

and subsection (4A) above shall have effect in relation to an attendance centre order made on appeal as if the words "if the order had not been made" were omitted."
.—(1) In subsection (1) of section 19 of the 1982 Act (breaches of attendance centre orders or attendance centre rules), for the words "has been made" there shall be substituted the words "is in force".
(2) In subsection (5) of that section, after the word "failed" there shall be inserted the words "without reasonable excuse".
(3) After subsection (7) of that section there shall be added the following subsections—
"(8) Where an offender has been ordered to attend at an attendance centre in default of the payment of a sum of money or for such a failure or abstention as is mentioned in section 17(1)(a) above, subsections (3) and (5) above shall have effect in relation to the order as if the words ", for the offence in respect of which the order was made," and "for that offence" were omitted.
(9) Where an attendance centre order has been made on appeal, for the purposes of this section it shall be deemed—

(a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;

(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court;

and, in relation to an attendance centre order made on appeal, subsection (3)(a) above shall have effect as if the words "if the order had not been made" were omitted and subsection (5) above shall have effect as if the words "if it had not made the order" were omitted." ").
Page 104, line 48, at end insert—
(". In each of subsections (3)(b) and (4)(a) of section 57 of the 1991 Act (responsibility of parent of guardian for financial penalties), for the words "section 35(4)(a)" there shall be substituted the words "section 35(4)".").
Page 105, line 3, after ("section,") insert—
("(a) "guardian" has the same meaning as in the 1933 Act; and
(b)")
Page 106, line 19, leave out from ("offence"") to end of line 20.
Page 106, line 20, at end insert—
("( ) After paragraph 6 of that Schedule there shall be inserted the following paragraph—
"6A.—(1) Where a relevant order was made by a magistrates' court in the case of an offender under 18 years of age in respect of an offence triable only on indictment in the case of an adult, any powers exercisable under paragraph 3(1)(d) above by that or any other court in respect of the offender after he has attained the age of 18 years shall be powers to do one of the following—

(a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made; or

(b) to deal with the offender for that offence in any way in which a magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(2) In sub-paragraph (1)(b) above any reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders."
( ) In paragraph 7(5) of that Schedule, after the word "above" there shall be inserted the words "for an offence".").
Page 107, line 31, leave out from beginning to ("Where") in line 32 and insert ("paragraphs—
"11A. Paragraph 6A above shall apply for the purposes of paragraphs 7 and 8 above as it applies for the purposes of paragraph 3 above, but as if in paragraph 6A(1) for the words "powers exercisable under paragraph 3(1)(d) above" there were substituted the words "powers to deal with the offender which are exercisable under paragraph 7(2)(a)(ii) or 8(2)(b) below".
11B.").
Page 108, line 10, at end insert—
(" .—(1) In subsection (2)(a) of section 35 of the 1997 Act (community sentences for fine defaulters), for the words "and (11)" there shall be substituted the words ", (10) and (11)".
(2) In subsection (5) of that section, paragraph (c) shall cease to have effect.
946
(3) In that subsection, the word "and" at the end of paragraph (d) shall cease to have effect and after paragraph (e) there shall be added the following paragraphs—
"(f) the reference in paragraph 7(1)(b) of that Schedule to the offence in respect of which the order was made shall be construed as a reference to the default in respect of which the order was made;
(g) the power conferred by paragraph 7(2)(a)(ii) of that Schedule to deal with an offender for the offence in respect of which the order was made shall be construed as a power to deal with the person in respect of whom the order was made for his default in paying the sum in question; and
(h) paragraph 8(2)(b) of that Schedule shall not apply."
(4) In subsection (7) of that section, for the words "section 12(5)" there shall be substituted the words "section 12(6)".
(5) In subsection (8) of that section, the word "and" at the end of paragraph (a) shall cease to have effect and after paragraph (b) there shall be added the following paragraphs—
"(c) the reference in paragraph 7(1)(b) of that Schedule to the offence in respect of which the order was made shall be construed as a reference to the default in respect of which the order was made;
(d) the power conferred by paragraph 7(2)(a)(ii) of that Schedule to deal with an offender for the offence in respect of which the order was made shall be construed as a power to deal with the person in respect of whom the order was made for his default in paying the sum in question; and
(e) paragraph 8(2)(b) of that Schedule shall not apply."
(6) In subsection (10) of that section, for the words "subsection (2)(b)" there shall be substituted the words "subsection (2)(a) or (b)".
.—(1) In subsection (3) of section 37 of the 1997 Act (community sentences for persistent petty offenders)—

(a) in paragraph (a), for the words "(4) and (6)" there shall be substituted the words "(4), (5A) and (6)"; and

(b) in paragraph (b), for the words "(5) and (6)" there shall be substituted the words "(5), (5A) and (6)".

(2) For subsections (4) and (5) of that section there shall be substituted the following subsections—
"(4) In this section "community service order" has the same meaning as in the 1973 Act and—

(a) section 14(2) of that Act; and

(b) so far as applicable, the other provisions of that Act relating to community service orders and the provisions of Part I of the 1991 Act so relating,

shall have effect in relation to an order under subsection (3)(a) above as they have effect in relation to a community service order made under the 1973 Act in respect of an offender.
(5) In this section "curfew order" has the same meaning as in Part I of the 1991 Act and—

(a) section 12(6) of that Act; and

(b) so far as applicable, the other provisions of that Part relating to curfew orders,

shall have effect in relation to an order under subsection (3)(b) above as they have effect in relation to a curfew order made under that Act in respect of an offender.
(5A) A court shall not make an order under subsection (3)(a) or (b) above in respect of a person who is under 16."").
Page 108, line 10, at end insert—
(". In section 50 of the 1997 Act (disclosure of pre-sentence reports), after subsection (6) there shall be added the following subsection—
"(7) In this section "guardian" has the same meaning as in the 1933 Act."").
Page 108, line 10, at end insert—
(". In section 54 of the 1997 Act (general interpretation), after subsection (3) there shall be added the following subsection—
"(4) For the purposes of any provision of this Act which requires the determination of the age of a person by the court, his age shall be deemed to be that which it appears to the court to be after considering any available evidence." ").
Page 108, line 10, at end insert—
(". In section 55(2) of the 1997 Act (interpretation of minor and consequential amendments), for the words "in any case where" (in both places where they occur) there shall be substituted the word "and"").
On Question, amendments agreed to.
Schedule 7 [Minor and consequential amendments]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 197 to 210.
Page 109, line 44, at end insert—
("Criminal Appeal Act 1968 (c. 19)
. In subsection (3) of section 10 of the Criminal Appeal Act 1968 (appeal against sentence in other cases dealt with at Crown Court), after paragraph (c) there shall be inserted the following paragraph—
"(cc) where the court makes such an order with regard to him as is mentioned in section 40(2) of the Criminal Justice Act 1991." ").
Page 110, leave out lines 43 to 47 and insert—
(" "(1A) Subsection (1)(b) above has effect subject to section 54(4) of the Crime and Disorder Act 1998 (effect of reprimands and warnings)." ").
Page 111, leave out lines 18 to 28 and insert—
("19. After subsection (8) of section 14 of the 1973 Act (community service orders) there shall be inserted the following subsection—
"(9) In the case of an offender under the age of 18 years—

(a) references in subsections (2), (5)(c) or (6) above to a probation officer include references to a member of a youth offending team; and

(b) the reference in subsection (4) to a probation officer appointed for or assigned to the area for the time being specified in the order includes a reference to a member of a youth offending team established by the local authority within whose area it appears to the court that the offender resides or will reside." ").

Page 111, line 30, at end insert—
(". In subsection (1) of section 46 of the 1973 Act (reports of probation officers), after the words "probation officer" there shall be inserted the words "or a member of a youth offending team".").
Page 111, line 45, at end insert—
("( ) After that paragraph there shall be inserted the following paragraph—
"Interpretation
7. In the case of an offender under the age of 18 years, references in this Schedule to a probation officer include references to a member of a youth offending team."").
Page 112, line 7, at end insert—
("23A. In subsection (2) of section 7 of that Act (limitations on rehabilitation under Act etc.), after paragraph (b) there shall be inserted the following paragraph—
"(bb) in any proceedings on an application for a sex offender order under section 2 or, as the case may be, 19 of the Crime and Disorder Act 1998 or in any appeal against the making of such an order;".").
Page 119, line 2, leave out ("subsection") and insert ("subsections").
Page 119, line 6, at end insert—
("(6) For the purposes of any enactment conferring rights of appeal in criminal cases, any such order as is mentioned in subsection (2) above made with regard to any person shall be treated as a sentence passed on him for the offence for which the sentence referred to in subsection (1) above was passed."").
Page 120, line 40, leave out ("In sub-paragraph (1)(d) of paragraph 3") and insert ("After sub-paragraph (4) of paragraph 1").
Page 120, line 41, after ("orders),") insert ("there shall be inserted the following sub-paragraph—
"(5) Where a drug treatment and testing order has been made on an appeal brought from the Crown Court, or from the criminal division of the Court of Appeal, for the purposes of this Schedule it shall be deemed to have been made by the Crown Court."
( ) In sub-paragraph (1)(d) of paragraph 3 of that Schedule").
Page 121, line 15, leave out ("Prisoners and Criminal Proceedings (Scotland) Act 1993") and insert ("1993 Act").
Page 121, line 24, leave out ("that") and insert ("the 1993").
Page 121, line 30, leave out ("that") and insert ("the 1993").
Page 123, line 17, leave out ("("the 1998 Act")"). On Question, amendments agreed to.
Schedule 8 [Transitional provisions and savings]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 211:
Page 128, line 30, at end insert—
("Power to release short-term prisoners on licence
.—(1) Section 83 of this Act does not apply in relation to a prisoner who, immediately before the commencement of that section, has served one or more days more than the requisite period for the term of his sentence.
(2) In this paragraph "the requisite period" has the same meaning as in section 34A of the 1991 Act (which is inserted by section 83 of this Act).").
On Question, amendment agreed to.
Schedule 9 [Repeals]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 212 to 221:
Page 130, line 14, column 3, leave out ("34(1)(c)") and insert ("34, in subsection (1), paragraph (a) and, in paragraph (c)").
Page 130, line 23, column 3, at beginning insert—

("Section 1B(10).")

Page 130. line 27, column 3, at end insert—

("and the words from "For the purposes" to "available evidence"")

Page 130, line 34, column 3, leave out second ("and").
Page 130, line 35, column 3, at end insert—

(", and, in subsection (6), the words "about committal by a magistrates' court to the Crown Court"")

Page 130, line 47, column 3, at end insert—

("In sections 38(2) and 38A(2), the words ", in accordance with section 56 of the Criminal Justice Act 1967,".")

Page 131, line 3, column 3, at end insert—

("Section 18(7).")

Page 132, line 24, column 3, leave out ("section 35(19(a),") and insert—

("section 35, in subsection (5), paragraph (c) and the

949

word "and" at the end of paragraph (d), and in subsection (8), in paragraph (a),")

Page 132, line 28, column 3, at end insert—

("and the word "and" at the end of that paragraph")

Page 133, line 54, at end insert—

("1997 c.50.

Police Act 1997.

In section 94(4), the word "and" immediately preceding paragraph (c).")

On Question, amendments agreed to.
House adjourned at twelve minutes before midnight.