Lords Sitting of 8 February 1999

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Carlisle.
Lord Trevethin and Oaksey—Took the Oath.

The Millennium Dome
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What further news they have concerning the millennium dome.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, the construction of the millennium dome at Greenwich is on time and on budget and I am confident that it will remain so. I remind noble Lords that the Millennium Experience project also incorporates an extremely impressive and comprehensive national round of activities, which are well under way. These include Tesco's SchoolNet 2000; Voices of Promise; and Children's Promise. I am pleased to report that your Lordships continue to lead the way in pledging support for the Children's Promise campaign.
Lord Peyton of Yeovil: My Lords, is the noble and learned Lord aware of my great anxiety that he will take this great opportunity to enhance the splendid reputation that he enjoys in your Lordships' House for intelligence and common sense? Will he seize that opportunity and undertake on behalf of his colleagues to produce a document which will make clear to members of the public the Government's plans—I am sure the Government understand them—for the cost of the project, its contents, access, parking and traffic, whether generated by the
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dome or just ordinary traffic? Perhaps the Government will also give some sympathetic thought to the inhabitants of Greenwich before they are inundated?
Lord Falconer of Thoroton: My Lords, as to costs, the Government have made clear that part of the money to finance the dome comes from the lottery and the other part comes from commercial sponsorship and the face-value costs of admission to the dome. As to traffic, the Government have made clear their proposals in relation to road, rail and underground traffic. As to the people of Greenwich, I was in Greenwich last week and I can tell the House that the people of Greenwich are very pleased that the dome is there. The north Greenwich site has been decontaminated; the building of the dome has created 2, 000 jobs; and there will be jobs for 5, 000 people during the running of the experience. There will be commercial regeneration of the whole of that part of London, and people are pleased about that.
Lord Marsh: My Lards, as the project is on budget and on time, can the Minister tell us whether it is expected to break even and, if so, when? If not, what is the projected deficit, and when?
Lord Falconer of Thoroton: My Lords, there is no projected deficit; it is 'forecast that the project will at least break even. During the course of the autumn, accounts will be published showing the position. The project is looked at overall, not at a particular time. In June 1997, when the Prime Minister agreed that the project should continue, he pledged that no public money would be put into the project.
Lord Ewing of Kirkford: My Lords, is my noble and learned friend aware that I may have the most up-to-date information on the millennium dome? Is he further aware that the flight path into Heathrow today from Edinburgh passed right over the top of the millennium dome? Two hours ago I was passing over the top of the millennium dome in an aeroplane that was half full of Welsh rugby supporters. A chorus came from the Welsh rugby

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supporters saying that the millennium dome was the most wonderful sight they had seen in a very disappointing weekend.
Lord Falconer of Thoroton: My Lords, I can understand the disappointment of the Welsh. I can also understand that they were spiritually lifted, as is everybody, to see the dome as they flew into London.
Lord Harris of Greenwich: My Lords, can the noble and learned Lord—
The Lord Bishop of Carlisle: My Lords, perhaps I may—
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I think the feeling of the House is that we should hear the right reverend Prelate first. I am sure that there will be plenty of time for the noble Lord, Lord Harris, afterwards.
The Lord Bishop of Carlisle: My Lords, can the Minister lift our spirits further by putting a little flesh, if that is the right word, on the prospects for the content of the spirit zone, given that the marking of the Christian era is central to the whole celebration of the millennium and has been formative of the history and institutions of our country over many centuries?
Lord Falconer of Thoroton: My Lords, as the right reverend Prelate knows, in preparing the contents of the dome we are very concerned to appropriately mark that this celebration is a Christian one. As the right reverend Prelate also knows, the Lambeth group has approved every step that we have taken in relation to the spirit zone. It is satisfied that the zone accurately and properly represents the Christian spirit in the dome.
Lord Harris of Greenwich: My Lords, does the Minister recall that the noble Lord, Lord Peyton, suggested that there might be some form of government publication in regard to the millennium dome and the Government's plans for it? If the Government proceed with such a publication, will the Minister guarantee that they will pay adequate tribute to the work of the Ministers in the previous Conservative Government who were so keen on this idea?
Lord Falconer of Thoroton: My Lords, the project was started by the previous government. We want the project for the nation and we want all political parties to support it. We are looking for success not for the party, not for the Government, but for the nation as a whole.
Lord Luke: My Lords, I am very pleased to hear what the Minister has just said because the project is an all-party one. I am also glad to hear that the project is on budget and on time. Does the Minister agree that the New Millennium Experience Company is doing a first-class job in keeping it on time and on budget? Does he also agree that perhaps there has been too much secrecy in the past? The idea of the noble Lord of publishing a briefing
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paper about what is going on now and will go on in the future is a good one. Can the Minister confirm that the original criteria—which is roughly where we were, where we are at and where we are going—is still very much behind the project as it stands?
Lord Falconer of Thoroton: My Lords, I am happy to join the noble Lord in complimenting the management of NMEC, the company that is building the dome. It has done a first-class job. There is some way to go but I have every confidence that it will be able to produce in the future the same quality of management and service as it has produced in the past. The noble Lord asked about openness. I do not accept that we have not been open in the past, but we are now reaching the stage in the project where, as the dome is built and the contents become known, more and more will be known. I should say, however, that I will not tell everyone what is in the dome because I believe there has to be an element of secrecy. I want people to go down and see for themselves what is in the dome.
Lord Montague of Oxford: My Lords, if my noble and learned friend has it in mind to publish the document, will he make mention of the fact that 350 acres of derelict ground have been recovered as a result of this great and important venture and that the cost forecast originally of £750 million has, by way of income which the company is gaining from sponsorship, already fallen to £491 million? Does my noble and learned friend agree that it looks as though we are going to have an event which will be a source of great pride and a great success for our country?
Lord Falconer of Thoroton: My Lords, I endorse what my noble friend said about the recovery and regeneration of the land. There was never going to be —750 million of lottery money; the figure is only —449 million. The rest is coming from commercial sponsorship and money made while the dome is there. I entirely agree that it is a first-class project for the nation.

NHS: Access to Services
2.46 p.m.
Lord Clement-Jones Lord Clement-Jones asked Her Majesty's Government:
Whether the National Health Service has in place a strategy to ensure cost-effective and professional diagnosis and delivery of services across language and culture.
Lord Hunt of Kings Heath: Yes, my Lords. The Department of Health's strategy is to ensure that all groups have effective and equitable access to services by implementing the NHS. Modern and Dependable White Paper. This includes training staff on cultural issues; providing interpreter, advocacy and translation services; and providing information on the NHS and health issues in different languages.
Lord Clement-Jones: My Lords, I thank the noble Lord for that positive reply. Perhaps I may ask him in

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particular whether the Department of Health is considering the provision of qualified interpreters such as are being introduced into the criminal justice system.
Lord Hunt of Kings Heath: My Lords, the current policy is to delegate that decision down to individual trusts. In the past few years we have seen trusts employ many more interpreters and link workers. That has proved to be very successful. However, we are looking at a recent report published by the King's Fund on link workers in primary care. We will be exploring with the King's Fund and others ways in which to take forward this issue. We will look at the national system as regards criminal justice to see whether any lessons can be learnt.
Lord Ahmed: My Lords, can my noble friend inform the House whether Her Majesty's Government are satisfied with the health of ethnic minority communities?
Lord Hunt of Kings Heath: My Lords, there is an issue concerning the varying inequalities in health among all groups. agree with my noble friend that inequalities in health among ethnic minority groups is a particularly serious problem. It is one of the reasons we invited Sir Donald Acheson to produce a report on tackling health inequalities. In his conclusion he recommended that the needs of minority ethnic groups should be specifically considered in terms of the allocation of resources to the NHS and specific programmes. We are considering our response to that report at the moment.
Baroness Gardner of Parkes: My Lords, is the Minister aware that there is a very great volunteer element in interpreting? Is he further aware that, as a dentist, I regularly had people come to my surgery with a friend or relative? Would it not be better to encourage that volunteer element rather than to involve ourselves in the vast expense arising from the court system, which I recall as a magistrate?
Lord Hunt of Kings Heath: My Lords, I am glad to pay tribute to the work of volunteers in helping the NHS in this area. We rely on volunteers and members of families to help people who use the NHS by interpreting for them. However, there are circumstances where it is not appropriate—perhaps in the case of a child or someone who does not speak English as a first language—for a volunteer to be present at a consultation. It is essential that we have the back-up of a professional service as well.
Baroness Ludford: My Lords, given the Minister's earlier reply, with which I agree, will he confirm that extra funding will be made available for those health authorities that need to employ professional translators; for instance in inner London, where patients may speak any of some 60 languages? Given that the funding of services for ethnic minorities is under pressure in the education sector through local government grants, will the Minister assure the House that that element of health funding will not be under pressure?
Lord Hunt of Kings Heath: My Lords, as I have said, in considering the outcome of the Acheson Report we
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shall examine its recommendations in relation to funding. We already include in the capitation formula for allocation to health authorities an allowance for what is termed the English language difficulties adjustment. well understand the pressures on many inner-city health authorities. It is worth pointing out that, for instance, the East London City Health Authority budgeted in 1996–97 for nearly £3 million to be spent on interpreting services.
Baroness David: My Lords, I appreciate what the Minister said about national health trusts, but will he tell the House what information is now available to them as regards the needs of language and the cultural backgrounds of the people in their area so that the trusts can provide a baseline from which to plan appropriate services?
Lord Hunt of Kings Heath: My Lords, the most comprehensive set of data on local areas is provided by the 1991 National Census. However, that records only ethnic group and country of birth, not language or religion. Therefore, information at local level is more likely to be the product of local initiatives on the part of health authorities or local authorities in commissioning surveys.
The development of the new NHS proposals, particularly given the intention to develop health improvement programmes in consultation with local authorities and taking in primary care groups and NHS trusts, will provide the motivation to ensure that the information we have is as accurate as possible. That will then help us to plan the kind of services that we require.
Lord Astor of Hever: My Lords, is the Minister aware that there is no legal requirement for GPs to be able to speak English, and that that can in certain circumstances be dangerous for the care of patients? Will the Minister undertake to look into the matter?
Lord Hunt of Kings Heath: My Lords, I shall respond to the noble Lord on that issue. In relation to the training of doctors in this country, we have made it clear to the medical schools that we wish them to ensure that all medical students well understand the needs of a multi-cultural society.

Gibraltar: MoD Contract
2.53
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
Why the provisions of the Gibraltar Employment Ordinance were not adhered to in the transfer of the local workforce from Balfour Beatty to Hyder under the new Ministry of Defence contract.
The Minister of State, Ministry of Defence (Lord Gilbert): My Lords, I am not aware of any evidence to suggest that the provisions of the Gibraltar Employment Ordinance were not adhered to in the transfer of the workforce from Balfour Beatty to Hyder. The transfer of the local workforce following the award of the work services management contract to Hyder is a matter

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entirely between themselves and Balfour Beatty. However, the M. D has secured assurances from Hyder that the company will discharge its obligations under the Transfer of Undertaking (Protection of Employment) Regulations 1981.
Lord Merrivale: My Lords, I thank the Minister for that reply. Will he confirm that the directly employed labour force of 68, previously employed by Balfour Beatty, will be retained as a unit for the duration of the contract, as mentioned to me last Monday by the managing director of Hyder, Mr. Frederick Psyk? Will he also give an assurance that there is no question of employing casual temporary labour from across the border, to the detriment of local sub-contractors and workers, again as was said to me by the managing director of Hyder?
Lord Gilbert: My Lords, my figures are slightly different from the noble Lord's. I understood that 87 employees were involved, not 68. However, maybe the figure is 68. Yes, the noble Lord is right. The company is taking the entire number, and I can assure the noble Lord that they will be there for the full term of the contract. As regards bringing in workers from across the border, given what the Spanish authorities have done at the border, I should have thought that it would be rather difficult for them to get through at present.
Lord Islwyn: My Lords, does the Minister appreciate that the correct pronunciation of the company in question is "hudder" not "hider"?
Lord Gilbert: My Lords, I should have thought that the Spanish pronunciation would be "ee-dare"!

Au Pairs: Status
2.56 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
Whether they are proposing to change the status of au pairs living with families and, if so, what consultations are planned on this matter.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, we have no plans at present to change the status of overseas nationals living in the United Kingdom as au pairs.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply. However, it seems to be in conflict with reports that I have read in the press. Is he aware of the degree of anxiety that is being caused to parents who are able to continue in employment only because of the present au pair system? If there is to be a change from the "reasonable allowance" provided for under Part 4, Section 88 of the Home Office Immigration Rules to the Department of Trade and Industry's national minimum wage, the cost of an au pairs will almost double. It will be from £70 to £95 per
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week, depending on the age of the au pair. Will the Minister ask the Chancellor to include in his March Budget a provision for those obliged to pay on the new basis that child care will be tax deductible?
Lord Williams of Mostyn: My Lords, I do not think that there is a fundamental change. For well over 20 years now, by virtue of the Employment Agencies Act 1973, employment is explicitly defined to include situations involving the engagement of au pairs by families. So the concept of employment is not new. An au pair should not work for more than five hours a day, with two days off. The national minimum wage proposals provide for a payment of £3 for the younger segment of au pairs and £3.60 for those aged over 22. As regards taxable benefits, I shall certainly transmit the noble Baroness's suggestion to my right honourable friend the Chancellor of the Exchequer—with what hope of success I cannot guess.
Baroness Turner of Camden: My Lords, is my noble friend the Minister satisfied that these young people, as they mostly are, are sufficiently protected against exploitation? Is it not most unfortunate if they are sometimes expected to undertake work for which they are not adequately trained—perhaps very small children, for example?
Lord Williams of Mostyn: My Lords, my noble friend is right. One needs to bear in mind that the fundamental purpose of au pairs being in this country is to learn the language, culture and social traditions of this country. It is absolutely right that they should be protected. They are protected by virtue of regulations made under the 1973 Act. If there is any exploitation contrary to the Act and the regulations the DTI should be informed at once.
Baroness Knight of Collingtree: My Lords, is the Minister aware that, if a family lets a room to a lodger, the Inland Revenue allowance is £80 a week; but if, instead, they let the room to an au pair, and feed and look after the young person concerned, the allowance is only £20? How do the Government expect the au pair to be fed? Could this matter be re-examined?
Lord Williams of Mostyn: My Lords, the relationship of a lodger and a landlord is quite different from the family relationship with an au pair. I repeat: the au pair is here not to provide a source of under-paid, sometimes under-supervised employment; he or she is here fundamentally to learn the language. There are the restrictions that I have mentioned which have been extant for many years: no more than five hours a day, no more than five days a week.
Lord Avebury: My Lords, will the Minister say from what countries persons wishing to be au pairs may apply to come to the United Kingdom? Is he satisfied that the Immigration Rules are not in this respect racially discriminatory?
Lord Williams of Mostyn: My Lords, the au pair scheme covers nationals of Andorra, Bosnia-Herzegovina, Croatia, Cyprus, the Czech Republic,

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the Faroes, Green and, Hungary, Macedonia, Malta, Monaco, San Marino, Slovak Republic, Slovenia, Switzerland and Turkey. I do not believe that they are racially discriminatory.
Lord Campbell of Alloway: My Lords, are there any regulations concerning leaving au pairs in charge of very young children?
Lord Williams of Mostyn: My Lords, there are not specific regulations that I am aware of, but the general law of the land relating to statutory parental obligations about the care of children overrides anything else. However, there are particular regulations which relate to au pairs, dealing with the nature of their employment and the form with which they must be provided.
Baroness Miller of Hendon: My Lords, I am glad to hear the Minister at the Home Office declare that au pairs are still under the regulations of the Home Office. However, I wonder where the national minimum wage comes in. Is the Minister aware that during the Report stage of the national minimum wage Bill, this House endorsed an amendment that I put down which gave the Secretary of State at her discretion, an opportunity to exempt certain categories of persons or occupations from the national minimum wage, if the need should arise. That was overturned in the House of Commons. I was described—not in the House of Commons, I hasten to say, but in a national newspaper—as the "vermin in ermine", in return for my hard work on that suggestion, which I found upsetting.
Does the Minister agree with me that his honourable friend in the other place who described my amendment as "a wrecking amendment" was incorrect? What my amendment would have done is to strengthen the Bill in order to allow the Government to depart from the unbending rigidity of the national minimum wage in certain circumstances. With the newspapers and the agencies for au pairs, that has caused a conflict between the Home Office and the Department of Trade and Industry.
Lord Williams of Mostyn: My Lords, in response to the noble Baroness's questions, first, I am sorry that anyone should have called her "vermin in ermine". After all, we must remember that ermine is vermin.
I believe that there is no difficulty between the Home Office—which is a notoriously civilised and accommodating department—and our friends and colleagues in the DTI. Au pairs have some human rights. The obligation to pay £3 an hour—although it seems to be more than one is paid as a Home Office Minister—is not enormously burdensome.
Others of our colleagues in Europe have similar schemes. For example, in France employers must ensure that the value of the total employment package is at least equivalent to the French minimum wage. The Netherlands and Luxembourg include au pairs for the
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purposes of national minimum wage levels, Belgium and Spain exempt them. So there are different approaches to the matter. However, au pairs have rights.
Lord Dholakia: My Lords, on the list which the Minister has just read out the countries were mainly from Europe. Does he have it in mind to extend the list to countries in other parts of the world?
Lord Williams of Mostyn: My Lords, others who are not nationals of the countries on the list I read out may come as working holidaymakers. So, for example, those who are Commonwealth citizens, including citizens of Australia, are entitled to come here as working holidaymakers. Those who are nationals of the European Union countries may come here by virtue of the provisions which allow free movement between one EU country and another.
I answered the particular question in that deliberate way because that is the au pair scheme, but it does not mean that nationals of other countries of the kind I described cannot come here with generally similar arrangements.
Baroness Gardner of Parkes: My Lords, I am shocked that the noble Lord said that £95 a week is nothing to pay. Last week the Secretary of State for Health was appealing to nurses to come back to work, yet they are expected to pay £95 a week out of their net income. I am disturbed by that. I feel that the conflict was bad enough without the Minister's remarks. Is he not aware of the conflict, first, between the Home Office and the Department of Trade and Industry and, now, the Department of Health? Does he not think that there is a dramatic difference between someone living as a member of one's family and an employee? Are there not other ways of dealing with the real problems brought out by the noble Baroness, Lady Turner? An au pair is not to be exploited, but that does not mean that she should not live as a member of the family and learn English. Such people come here primarily as students.
Lord Williams of Mostyn: My Lords, I did not say that £95 a week was nothing. I said that £3 an hour was not a vast amount to pay. I believe that to be so. If any noble Lords doubt me, I invite them to try to live on a wage of £3 an hour.
Perhaps I may continue to answer the noble Baroness's questions. The fact that one lives in a family does not mean that there is no employment situation. I repeat that since 1973 the circumstances of an au pair are that he has been employed.
Lord Belhaven and Stenton: My Lords, the noble Lord gave us an impressive list of countries. Will Her Majesty's Government add Poland to that list? If not, why not?
Lord Williams of Mostyn: My Lords, we have no intention of adding Poland to the list. If the time came when Poland became a member of the European Union, then Polish nationals would be able to come in ns of right in the way that 1 indicated earlier to the noble Lord,

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Lord Dholakia. I have to tell your Lordships, with some regret, that there have been difficulties about immigration of Polish nationals. For example, in 1997 no fewer than 4, 000 were refused entry and 600 were detected here as being illegal entrants. There have been discussions between representatives of Her Majesty's Government and those who represent Polish interests.
The Countess of Mar: My Lords, is it not up to the prospective au pair to decide for himself or herself whether to take up the proposal of someone who wants to use their services? If they are not happy with the wages, they do not have to do the job.
Lord Williams of Mostyn: My Lords, the answer is that often or in most cases it is not a relationship of equality. The mere fact that a young man or young woman wants to come here to learn the language and benefit from our culture ought not to leave them open to wholly unprotected exploitation.
Lord Pearson of Rannoch: My Lords, would the Minister care to put straight a small error he may have made when he said that ermine was vermin? Does he agree that, in fact, it is the stoat which is vermin and that the stoat's winter coat, when removed from it, produces ermine which is worn by an honourable estate in the land?
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Pearson, is right. What I should have said is: "dead ermine is vermin".

Business
Lord McIntosh of Haringey: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lady Hayman will, with the leave of the House, repeat a Statement that is being made in another place on the national carers' strategy.

Youth Justice and Criminal Evidence Bill [H.L.]
3.7 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMI'FIEES in the Chair.]
Clause 34 [Child complainants and other child witnesses]:
[Amendments Nos. 95 to 100 had been withdrawn from the Marshalled List.]
Clause 34 agreed to.
[Amendment No. 101 had been withdrawn from the Marshalled List.]
Clause 35 [Direction prohibiting accused from cross-examining particular witness]:
[Amendments Nos. 102 to 107 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 35 shall stand part of the Bill?
Lord Ackner: I invite the Committee to say that Clause 35 should not stand part of the Bill. The clause deals with directions prohibiting the accused from cross-examining witnesses of no particularly identified kind. It is common ground that child witnesses merit special provision. In Clause 33, the Government—in the teeth of judicial opposition—have concluded that in rape cases there should be an absolute bar on the accused personally asking questions. It was always thought that if that kind of clause was introduced it would soon be followed by a more general provision that gave similar power but inevitably involved the discretion of the judiciary, since otherwise it would be quite impossible to support it. I submit that the Government are over-egging the pudding. Having achieved in Clause 33 an absolute bar in rape cases, the temptation to extend this further should be resisted.
It was strongly contended by those who opposed Clause 33 that there was no evidence of any demand for that provision. Since May 1997 there have been no cases in which complainants have been abused or hectored and in which the courts have had to intervene to exercise the powers that the Lord Chief Justice identified in the case of Brown. There is even less evidence to suggest that this generalised provision should be on the statute book, which would no doubt bring with it quite unnecessary complications and delays. I beg to move.
Lord Thomas of Gresford: Special provisions may be required in cases involving sexual offences and children, but there is no case for extending similar provisions, although discretionary, to a vague, broad area of the criminal law such as that provided for in this and the next clause. My objection is to the whole cumbersome machinery laid down by this clause. If one considers this and the succeeding clause, the two pages that encompass these provisions boil down to one sentence: defendants who act in person must not abuse their position. If they do so the judge should intervene.
I believe that a judge in a criminal case is in charge of his court and that the Committee should support him, not seek to impose statutory obligations upon him as if to seek to legislate for every possible circumstance that may arise. Criminal cases vary very considerably in their circumstances from one to another, and the only person who is capable of coming to a fair and just decision at any particular point in a case is the judge who hears it. He is apprised of all the facts, understands the state of the case and the point at which it has arrived and, in the light of that, can properly exercise his discretion. Should he be wrong and a defendant is convicted in those circumstances, there is an appeal procedure so that the exercise of that discretion—it is

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not interfered with very often—may be reviewed by a higher court. But the more one seeks to introduce these statutory fetlocks around judicial discretion the greater the risk that miscarriages of justice will occur. For those reasons I support the opposition to this clause moved by the noble and learned Lord, Lord Ackner.
3.15 p.m.
Lord Cope of Berkeley: I am also sympathetic to the opposition to this clause and the one that follows it. The noble and learned Lord said that he was unaware of any evidence of the need for provisions of this kind in cases other than rape avid serious sexual assault, which are dealt with elsewhere. We dealt with those matters on the previous Committee day. I should like to give the Minister the opportunity to put before the Committee the evidence than this clause is necessary. Can he suggest how many cases have arisen in which the quality of evidence has been seriously diminished by the fact that the cross-examination of witnesses has been conducted by the accused? In asking that question I am conscious that no doubt lawyers initially will be inclined to believe that any cross-examination by them is better than that conducted by the accused and, that the quality of cross-examination, and hence presumably the quality of the evidence, will be better. I have some sympathy with that view, which may not necessarily be only the professional lawyer's view. But if the quality will always be diminished by the accused's cross-examination of a witness in comparison with cross-examination by a lawyer the clause looks a little peculiar.
I am also unclear as to the kind of cases envisaged in this provision. We are not (healing with rape and other serious sexual offences as set out in the previous clause and dealt with elsewhere. Presumably, we are dealing with burglary, assault and other offences of that kind. It appears to me and to others such as the Law Society that the cross-examination of witnesses in those cases is less likely to lead to difficulties. But the wording of the test in the clause appears to be questionable. The word "diminished" is entirely unqualified. The quality of the evidence does not have to be diminished seriously. It can be diminished by a very small amount. If so, it is diminished. It does not have to be likely to be seriously diminished but simply a little bit degraded from what it would otherwise have been.
Later one sees,
"that it would not be contrary to the interests of justice".
That is also a rather weak and negative test. The judge does not have to consider that it is in the interests of justice but simply that it is not contrary to the interests of justice to prohibit the accused from otherwise exercising his normal rights.
Slightly further on the definition of the quality of the evidence that may or may not be diminished brings in Clause 16(5) which makes reference to completeness, coherence and accuracy. In order to judge that one must make a judgment as to how the witness will react to being cross-examined by the accused as opposed to counsel. That is a difficult judgment to make at any time. Given that the degree of diminishment of the
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quality of the evidence to trigger this provision can be only very small, I believe that the wording is rather dangerous and that these detailed points strengthen the overall case made by the noble and learned Lord, Lord Ackner, and by the noble Lord, Lord Thomas of Gresford.
Lord Renton: I agree with those noble Lords who have complained about the apparent attempt to direct the court as to how to exercise its discretion. lf subsection (2) of Clause 35 were left alone I believe that all would be well. However, subsection (3) lists half a dozen matters that the court must bear in mind when exercising its discretion. However, other matters may arise which may also be relevant. To have the clause applying to the way in which these difficult cases are to be handled is wrong. If subsection (3) were left out it would help very much.
Lord Williams of Mostyn: First, I shall deal with the observations of the noble Lord, Lord Renton. As I understand it, he is content with the broad scheme of subsection (2) but is troubled about the possible constraints on judicial discretion in subsection (3). I think that I fairly paraphrase.
One needs to bear in mind that all judicial discretion is to a certain extent circumscribed whether by statutory or appellate directions or indications. In this context the provisions in subsection (3) are not exclusive. I take the noble Lord's point entirely. In other words, he says quite rightly, there may also be other matters. I agree. That is why subsection (3) is cast in its present form. It states:
"In determining whether subsection (2)(a) applies in the case of a witness the court must have regard"—
I underline these words—
"in particular"—
making it quite plain that there are other matters which could legitimately, indeed properly, be taken into account when the judge comes to his conclusion. I hope that I have been able to reassure the noble Lord.
On the general matters, the noble and learned Lord, Lord Ackner, is, I think, against this provision as a matter of fundamental approach. The noble Lord, Lord Thomas of Gresford, says that there is no serious objection in principle; it is simply a cumbersome way of dealing with matters. The noble Lord rightly says that if a judge gives a direction which is so significantly unjust in the interests of the defendant as to cause the conviction to be rendered unsafe—again I paraphrase, but I think fairly—the appeal could be allowed. That is so. But that does not cater for the position where the witness is so vulnerable to cross-examination personally by the defendant that the evidence given is not the: best evidence available. There is no appeal in those circumstances.
We believe that there are some cases—I shall dome to the illustrations which the noble Lord, Lord Cope of Berkeley, wanted me to give—where Clauses 33 and 34 do not apply. We have traversed those at some length. They are cases in which the witness may be more: likely to give his or her best evidence if cross-examined by someone other than the accused. We believe that the

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interests of justice are best served by putting good quality evidence before the courts. By "good quality" I seek to convey evidence in terms of coherence, completeness and accuracy. To strive for the best evidence is not to bring about injustice. Quite the opposite.
The sort of offences one might have in mind would be stalking, prolonged personal harassment or abuse with someone who may be genuinely vulnerable. For instance, if one has abuse or harassment on a continuing basis against—shall we say—an elderly person living alone, his best evidence may not be given if the alleged perpetrator is cross-examining. That is a category of case. But one does not simply have to consider a category of case. One needs to look at categories of witnesses. I give one illustration. There may be witnesses who could be particularly vulnerable to the defendant in person cross-examining. That vulnerability may well bring about not the best available evidence but evidence which simply conceals or obscures the truth rather than revealing it. It may well be a witness, for instance, with a learning disability. All we are doing in Clause 35— it is simply an empowerment of the judiciary; I stress that—is to give the court power either on an application or of its own motion, respectively subsection (1)(a) and (1)(b), to prohibit an unrepresented defendant from cross-examining witnesses in those cases which are not already covered in Clauses 33 and 34.
But there are constraints here. By subsection (2) the direction can be given only if it appears to the court,
"that the quality of evidence given by the witness on cross-examination is likely to be diminished if the cross-examination … is conducted by the accused in person"—
no judge will regard a de minimis diminution as a foundation for his jurisdiction here—
"and"—
we have the overarch—
"would be likely to be improved if a direction were given under this section"—
and the further overarch—
"and that it would not be contrary to the interests of justice to give such a direction".
So what one is doing is to give to the judge at trial a discretion. It is a wide discretion.
I reiterate, if I may, the points I made in answer to the noble Lord, Lord Renton. Subsection (3) simply points the court's mind to certain features. They are not exclusive features. The judge has to carry out the balancing exercise which all judges do every day when they rule on admissibility of evidence, for instance. It gives the judge the discretion to take into account in particular the aspects covered in subsection (3)(a) to (f) inclusive but also any others that may be relevant.
Subsections (2) and (3) set out the criteria. The prohibition is to prevent the defendant's personal cross-examination. He will be able to have cross-examination, of course, through a legal representative. We do not believe that that is either contrary to the interests of justice or breaches any European convention right. It is not on the basis that all
16
lawyers cross-examine better than all defendants. It is simply a desire, which I believe to be long overdue, to make sure that witnesses in these vulnerable cases will be able to give the best evidence. If the best evidence leads to a proper conviction, that is a just outcome. If a failure to acquire in court on oath the best evidence leads to a wrongful acquittal, that is not justice. It is unjust. I suggest that it is one of those injustices which sometimes leads to the disenchantment and alienation of the public.
I repeat, if I may, because it is important, that the court must be satisfied that nothing in the circumstances of a particular case would make such a ban contrary to the interests of justice. The criteria are set out. I do not think that it is helpful to the Committee to recite them again. I give the reference: page 25, subsection (3)(a) to (f). We believe that these provisions—they will not be used every day in every court—should be available for the judges to exercise their discretion on what I stress remains a judicial basis.
Lord Wigoder: The Minister repeatedly referred to "the judge". Have I misread Clauses 35 to 37? Do they not apply equally to magistrates' courts proceedings? Is it not for the magistrate to follow through these complicated procedures to decide whether the questioning may be unfair, even in the most trivial of offences? In a large percentage of trivial offences the defendant represents himself in the magistrates' court. Has the magistrate then to go through all these procedures to decide whether the unrepresented defendant can have legal aid in order to ensure that justice is done?
Lord Williams of Mostyn: The magistrates sit judicially. That is why the word "court" is used in the subsection. But magistrates have to make rulings which are sometimes difficult. They have the advantage of legal advice from their clerk. There is nothing novel in this. I would expect there to be relatively few cases in the magistrates' court. The noble Lord is right. More than 95 per cent. of criminal cases are tried in the magistrates' courts. But magistrates have to come to these conclusions regularly as part of their judicial work with legal advice that they are given by their clerk which they apply to the facts of the case.
3.30 p.m.
Viscount Brentford: I have friends who have suffered the problem of stalkers and I know how traumatic has been it was for those ladies. Therefore, I support the principle that the court should be able to bar a stalker, for instance, from cross-examining the victim in person. While stalking is not as serious a matter as rape, it is extremely traumatic for the ladies concerned and therefore I would welcome the proposed principle. It is right that in such instances the court should have a discretion to bar cross-examination by the accused.
Lord Thomas of Gresford: If the provisions were specifically directed towards stalking or harassment cases they would be less objectionable. However, the provisions apply across the whole of the criminal law.

17
They could apply for example, to a fraud case in the Crown Court where a person seeks to shelter under the provisions by saying to the prosecutor, "The defendant is my employer. I am feeling very nervous today and I should be grateful if you could ensure that that particular person does not ask me any questions".
Stress is endemic in the judicial process. Everyone in court is under some degree of stress, whether it be the advocates, the judge, the witnesses and, most certainly, the defendant. One cannot avoid stress in the courtroom. The problem with such provisions is that they "cotton wool" witnesses against the proper cross-examination which in our system usually results in the truth becoming known. That is a stressful situation in which truth becomes apparent. If a witness is forever insulated from cross-examination, whether it be from the accused or his representative—that is not suggested here—the truth will not come out. I have an objection to the whole cumbersome machinery of the clause.
Lord Cope of Berkeley: I am grateful to the Minister for setting out in a little more detail the kind of cases and instances in which the clauses might apply. He suggested that the measure related to vulnerable witnesses. Earlier in the Bill we considered the definition of "vulnerable" witnesses and what should be done to protect them by way of screens and so forth. Clauses 16 and 17 set out who are vulnerable witnesses. Will the Minister consider including these provisions in that part of the Bill which covers vulnerable witnesses and provides for other means of protecting them? That might make the clause a little more acceptable than it is in its present blanket form.
Baroness Ludford: I have not been concerned with the Bill, but I have considerable sympathy with the views expressed by my noble friend Lord Thomas of Gresford. The cruse of vulnerable complainants and witnesses is obviously not served by miscarriages of justice on the other side. It is not a gain for one at the expense of the other. Will the Minister say a little more about the clause? He used stalking and harassment as illustrations. As stalking is now a statutory offence, can he be more specific about the offences which are covered? After all, there are strong civil liberty implications. The Government have properly tried to strike the best balance between the civil liberties and rights of the accused and the protection of vulnerable complainants and witnesses in order that they come forward and are prepared to go through the trauma of a trial.
I take the point made by my noble friend Lord Thomas of Gresford about the stress involved in appearing as a witness. There must be a distinction between being prepared to tolerate that stress in the interests of justice and being protected from the traumatic situation of reliving the offence. Can the Minister be more specific so that that balance is properly struck? I have sympathy with the concerns expressed about the clause going too far and potentially damaging the civil liberties and rights of the defendant.
Lord Williams of Mostyn: I did not say that the measure was a protection for witnesses who are stressed.
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The noble Lord, Lord Thomas of Gresford, said on another occasion that stress is an inevitable experience for anyone who goes into court, from the presiding judge down to the usher. I do not disagree with him. Lawyers who appear in court all the time are more familiar than witnesses, but not totally at ease.
It has been asked in various ways why we do not have a list of offences. The reason is that I sought to indicate the categories of offence and then I thought that I had explained that there were categories of witnesses. Perhaps I may take up the helpful observation of the noble Viscount, Lord Brentford, who spoke about particular incidents of harassment and the fact that the generally female victim of the alleged harassment might be unable to give her best evidence. Thai is right, yes, and it might well be the same for an elderly widow who has been burgled six times by a notorious local thug. The elderly widow living alone has civil rights arid liberties, one of them being that the state ought to secure her safety in her home. If that fails, proper acquittals should be brought about, but also proper convictions should be brought about in whatever the court of trial—the magistrates' court or the Crown Court.
That is not a charier for everyone to say, as in the example of the noble Lord, Lord Thomas, "My boss is the defendant in this fraud case and I feel a little uneasy about my employment prospects". If that application were made by or on behalf of the witness in question, it would not be upheld. One is talking about cases which are severely circumscribed by the provisions in Clause 2. The court has to determine that the quality of evidence given by the witness is likely to be diminished if the cross-examination is conducted by the accused in person; and that it would be likely to be improved if a direction were given under the clause; and that it would not be contrary to the interests of justice to give such a direction.
In answer to the noble Baroness, Lady Ludford, I believe that one cannot have lists of cases. Obviously, one chooses the cases which are likely to give trouble, but one must look at the witnesses. Witnesses may 'well suffer the disabilities of being unable properly to give the best quality of evidence; in other words, that impediment to the functioning of a proper criminal justice system may be infinite. It is not the offence which matters, but the relationship between the defendant and the witness whom he wishes to cross-examine. We are saying that if these tests are established to the proper satisfaction of the magistrates, with the legal advice they receive, or the judge, having considered these matters and directed his mind, the court ought to have the reserve power to direct that an individual cannot cross-examine the witness.
I believe that that:, s a step towards better justice and not an infringement of the interests of the defendant or against his human rights. There is a prosecution and a defence in a case. Of course, the prosecution has an

19
interest as, self-evidently, does the defendant. However, there is a further interest; namely, a public interest that the best quality evidence should be available.
Lord Cope of Berkeley: Will the Minister respond to my suggestion that this clause might be confined to vulnerable witnesses as defined earlier?
Lord Williams of Mostyn: I am so sorry. I did not mean the noble Lord, Lord Cope, any discourtesy. As always, I shall give careful consideration to anything that is said in this Committee, as I shall to what has been said by the noble and learned Lord, Lord Ackner, and what he is about to say in summarising his position. I have always been open to further reflection. I always say "without guarantee". But I can say from my own knowledge that on such questions officials are extremely alert to the fact that we may not have got it right first time. I believe that we have. However, I am sorry that I did not respond more positively to the noble Lord, Lord Cope.
Lord Ackner: The only matter on which I should like the Minister to reflect is that there is no need to give this power by statute. It is already there. A judge, in the control of his court, may say to a defendant, "Your cross-examination is excessively hectoring", or, alternatively, "It is irrelevant. When the jury were out, before you began to cross-examine, I gave you certain advice. If you will not adhere to it then you will not be allowed to ask any further questions. I shall ask the questions on your behalf'. All that seems to be overlooked and perhaps it could be the subject matter of some reflection between now and Report stage. However, at present, I do not press my objection.
Clause 35 agreed to.
Clause 36 agreed to.
3.45 p.m.
Clause 37 [Defence representation for purposes of cross-examination]:
Lord Thomas of Gresford Lord Thomas of Gresford had given notice of his intention to move Amendment No. 108:
Page 26, line 33, leave out ("34 or 35").
The noble Lord said: If Clauses 34 and 35 are to remain in the Bill, this amendment prevents altogether the appointment of a legal representative.
The purpose of the amendment is to ensure that what I regard as the unworkable machinery of the appointment of a legal representative to cross-examine a witness does not apply in these particular cases. However, I do not propose to say any more about it because it is on the next group of amendments that I wish to make my points. Therefore, I shall not move the amendment.
[Amendment No. 108 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 109:
Page 26, line 34, leave out subsections (2) and (3).
The noble Lord said: The purpose of Amendment No. 109, together with Amendment No. 111, is that if a representative is to be appointed then that representative should not simply be appointed to cross-examine a witness but should be appointed to put the defence case as a whole to all the witnesses who are before the court thereafter.
It seems to me to be suggested that the court may appoint a legal representative to come into a trial. It may then say to him, "All right, you now cross-examine witness X. For various reasons, I have decided that the defendant acting in person should not be allowed to cross-examine this particular witness. I now want you to carry on and cross-examine". That must lead immediately to an adjournment. The issue will then arise whether the representative so appointed should have a conference or consultation with his client in which he learns something about the case; in which he receives instructions as to what the defendant wants to put; and finds out whether the defendant will co-operate with him.
If a defendant co-operates with a court-appointed legal representative, then I suppose that the system can work. But almost by definition, a defendant who is representing himself has rejected the possibility of having a legal representative in the case generally in any event. Therefore, he is in a position in which he will not wish to co-operate. The legal representative appointed by the court will not know what sort of case he must put and which points must be made to a witness. Of course, at the end of the case, when addressing the jury or the magistrates, the defendant will be entitled to say, "I did not want that lawyer to represent me. He has not asked the questions I wanted him to ask. I have been the subject of injustice". In a jury trial in particular, that may well lead to the jury agreeing that it is unjust and acquitting when it should convict. That was a point made at some length in our earlier deliberations by my noble friend Lord Wigoder. The whole suggestion that an outside lawyer can be dragged in to cross-examine one witness is quite wrong.
The effect of the amendments which I propose is that if that machinery is employed, the lawyer will not simply pop in and pop out so that when that witness has been disposed of, he is bid goodbye and the defendant then carries on unrepresented. If the lawyer is called into the case, he should at least stay there and give some assistance throughout the rest of the case. I beg to move.
Lord Renton: I have always thought that freedom was the foundation of our democratic way of life and that our system of justice was intended to uphold that freedom. But Clause 37(3) runs right against that. It would mean that an accused person who did not want to have a legal representative would have one thrust upon him. That does not seem to me to be right.
Lord Cope of Berkeley: Amendments Nos. 109 and 111 seem to me solely to delete the provisions which provide for the accused, faced with the possibility of not being able to cross-examine, at least to consider whether he will willingly have, at that stage, a lawyer appointed

21
by the court to do the job for him or for that matter appointed by himself to do the job for him in regard to cross-examination.
If that provision is to be put into the Bill, it seems to me that what is provided in subsections (2) and (3), which would be deleted by Amendments Nos. 109 and 111, are necessary or at least desirable to give the accused the opportunity to appoint his own lawyer at the last minute, just when he knows that he is about to have that sanction imposed upon him.
The noble Lori Lord Thomas of Gresford, referred also to the point Amendment No. 110—and it seems convenient to discuss that with this group—that when a lawyer is appointed by the court to act on behalf of the defendant who cannot cross-examine for himself, he should put the whole case for the defence. It seems to me that it would be extremely helpful if the lawyer concerned were involved in the whole of the case for the defence, not just in the small part of it which involved the cross-examination in the middle of the case of a single witness who happened to be a vulnerable witness, as we have discussed. It seems to me that that is to ask a very great deal of the lawyer, even if he has the co-operation of the accused.
If we put a Lawyer in that circumstance, then the quality of the cross-examination is likely to be diminished—to borrow a phrase we were discussing earlier—and make it extremely difficult to conduct. But it will he even worse if the accused still does not wish to have a lawyer acting on his behalf. Given that the accused, by definition, is likely to be someone who is anti-lawyer and certainly does not want a lawyer acting for him, it is highly likely that in a number of cases he will not wish to co-operate with the court-appointed lawyer who is supposed to be acting for him.
In those circumstances, counsel will have even more difficulty in conducting a high quality cross-examination and the whole problem is compounded. That is why I tabled Amendment No. 109A, which it may be convenient to include in this group since we have already wandered from the narrow point of Amendments Nos. 109 and 111. Amendment No. 109A suggests that the court-appointed lawyer should only be appointed if the accused agrees to his appointment and therefore some reasonable element of co-operation can be expected between the two.
I realise that if the accused were still to refuse the appointment of a lawyer, then no cross-examination would take place because there would be no lawyer and the defendant would be unable to conduct it himself. That might raise once again the problem of human rights and the European Convention. After all, this whole clause exists to some degree in order to keep us on the right side of the Convention by providing for some way in which a defendant who is otherwise unrepresented, can be represented.
But it does not seem to be in line with natural justice that someone who has resisted a lawyer for the whole case and continues to resist even briefing one for the cross-examination, should nevertheless be forced at that point to have a lawyer to conduct that cross-examination. On the face of it, that cross-examination is
22
not likely to be of high quality or contribute necessarily to the interests of the accused, which the court-appointed lawyer will have a great deal of difficulty in determining if he has not been properly briefed and included in the discussions as to how the defence might best be conducted in all the circumstances.
Lord Swinfen: Perhaps I can make one small point. If a new lawyer is to be brought into the case in the middle, unless that lawyer has been sitting in court throughout the case he will not know how it has gone and the correct questions to ask. Is it proposed therefore that where an accused decides to act for himself and is likely to be instructed to have a lawyer, there should be a third or additional lawyer sitting in court purely as an observer until such time as he is appointed?
Lord Williams of Mostyn: A defendant who is banned from cross-examining a witness on the basis of this Bill becoming law, still has a right to a fair trial. Under the Criminal Justice Act 1988, as amended in 1991, the Committee is aware from our previous discussions that defendants are banned from cross-examining child witnesses in certain cases. That is the present law. There are no arrangements for those who refuse to appoint a legal representative for the purpose.
At the moment therefore a judge has a very unsatisfactory choice. He can either let the evidence against an unrepresented defendant go untested in cross-examination or he can ask the witness questions himself. I take up the point of the noble Lord, Lord Renton, about freedom of choice: the defendant has no freedom of choice if the judge in control of the case wishes to ask those questions by way of testing the evidence in cross-examination. But it is not suitable, if we can avoid it, for the judge to appear even to descend into the arena to ask the witness questions.
We consider that any defendant who is prevented from cross-examining the witness should be allowed to appoint and instruct a lawyer to conduct the cross-examination on his own behalf even if he wants to conduct the rest of his defence himself. We are infringing on his wishes to that limited extent. A lawyer appointed by the defendant can be instructed by him. He will be able to conduct cross-examination fully informed by the defendant's view of the alleged offence and the defence, if any, that he wishes to put forward.
Where a defendant refuses to instruct a representative we believe that the court should ensure that someone other than a member of the court itself should conduct the cross-examination—I take the point of the noble Lord, Lord Wigoder—it could be the magistrates through the chair or the judge. We feel it is better that there is at least some testing of the evidence in. the interest of helping the court to its conclusions. Perhaps I can give some examples; it is not too difficult to imagine them.
In response to the noble Lord, Lord Swinfen, there would be no necessity for the lawyer to be constantly in court because there would be full disclosure to him under Clause 37 (7). The lawyer who is court appointed

23
for this restricted purpose could quite easily conduct a satisfactory examination. For instance, if an alibi notice has been served which is an obligation under the Rules of Court if one is running an alibi defence, he can familiarise himself with the alibi and cross-examine on that if he wants to. He can read through the depositions and familiarise himself with what the defendant may or may not have said in the police interview under the Police and Criminal Evidence Act. He can study the medical evidence if it is a case of rape and cross-examine on that basis. There may be pathological evidence that he can use for cross-examination. So one can in fact conduct a perfectly useful cross-examination on this limited basis.
At the moment, I stress, all that can be done is place either a blanket prohibition on the defendant cross-examining or the judge must do it himself. It is not right for the court to appear to enter the arena and it is a better safeguard for the defendant to have a court-appointed lawyer. We have a criminal justice system which, in the eyes of many—sometimes I feel justifiably—resembles a game. It is not a game for a defendant to dictate that it is his bat and he is going home.
Lord Renton: The Minister is suggesting that the person to be appointed on behalf of the accused is to be a friend of the court—in fact, an amicus curiae. But suppose the defendant strongly objects to anyone being appointed to represent him or his interests; what is the court then to do?
Lord Williams of Mostyn: He is not strictly an amicus, but even if he were, the amicus has, in many cases—the noble Lord and I know perfectly well—an important role to play. I go back to my earlier proposition which cannot be assailed. At the moment the unrepresented defendant cannot cross-examine child witnesses in a variety of cases. The evidence therefore goes untested or the judge or the magistrates carry out the cross-examination. I am saying that it is an improvement to have a lawyer who is nominated by the court to ask those questions. On the illustrations I have given, in some circumstances—I concede, not all—a perfectly useful cross-examination can be carried out. It is better than the present system.
Baroness Carnegy of Lour: Can the Minister help the Committee by telling us exactly how that will work? Will there be lawyers in the background, not listening to the case but available if required; or will they have to be sent for and come on a bicycle or whatever? Once the lawyer has arrived, will any adjournment mean a long delay? The noble Lord, Lord Thomas of Gresford, suggested that there would have to be an adjournment while the lawyer becomes apprised of the situation and what he has to do. I am wondering what the cost of that will be in court time, lawyers' fees, and so on. How will the mechanics work?
4 p.m.
Lord Williams of Mostyn: The answer to the noble Baroness's question is contained in Clause 37, which states
"(2) Where it appears to the court that this section applies, it must
(a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness"
—that is one alternative—
"(b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose".
The judge, in that class of case, will come to an early conclusion because he will know at the outset whether the relevant sections apply. If the case is difficult or intricate, he will obviously give the defendant a certain latitude in terms of time. If the case is perfectly simple, the defendant can reply quite quickly.
It is often possible to find an available lawyer in a court centre. One does not want to return to the days, which certainly I am ashamed to say that I remember, when we all sat in court, desperately looking the other way and hoping that we would not be the recipient of a dock brief for one or two guineas.
Subsection (3) states
"If by the end of the period mentioned in subsection (2)(b)—
those are the two periods that I mentioned earlier in answer to the noble Baroness—
"(a) the accused has notified the court that no legal representative is to act for him"—
or he has not made any notification, the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative. Again, that period of time will be for the judge to determine bearing in mind a fair number of circumstances: first, the intricacy of the case; secondly, the nature of the evidence that the witness is likely to give (because there will be a witness statement to that effect); thirdly, whether any medical evidence needs to be taken on board; fourthly, whether any great reading of the depositions is needed; and fifthly, whether any alibi witness needs to be considered.
The judge will say—this is not difficult because judges come to these conclusions when deciding on adjournments at present—"One day is enough" or, "One week is sufficient, "or that 28 days may be needed. Judges and magistrates do that constantly. It seems simple for the judge, the magistrate, the court, to conclude the appropriate length of time for a proper cross-examination.
The clause also points out that the advocate is testing the evidence against the accused in order to give him a fair trial and is doing so to the best of his ability in the circumstances which then obtain. I suggest that that means looking at the alibi notice, if there is one, and all the other documentation to which I referred. It is not difficult for the judge to come to that conclusion. I repeat that he performs such an exercise when talking about giving an adjournment for half a day, a day or a week.
Lord Ackner: I suggest to the Minister that the complicated situation which we have been discussing is the product of the total embargo on the defendant in person

25
cross-examining. The judge will know, right from the beginning of the case, that the defendant is acting in person. Therefore, he can anticipate, when the time comes, that the defendant will seek to cross-examine in person. I suggest that an experienced judge, in the light of all our discussions, would adopt a procedure something like this: at the end of the opening of the prosecution case, the judge asks the jury to retire. He then says to the defendant in person, "In due course do you want to cross-examine the complainant?". The answer is, "Yes". The judge then says, "We have certain rules with which we have to comply and I think it would be convenient if you and I discussed the position now. What is the issue to which your cross-examination will be directed?" The defendant then answers, "She consented". The judge then says, "Tell me the circumstances in which you are going to suggest that she consented". As the judge and the defendant are on perfectly good terms, the judge is told that, and he achieves all the detail he requires.
Now we come to the position when the complainant has given her evidence in chief and the defendant rises to cross-examine. Without the blanket prohibition, the judge is in a position to see whether that cross-examination will be conducted properly, without hectoring or abusing the complainant. He discovers, as is the case from time to time, that the defendant carries out a perfectly polite, respectful and sometimes very effective, cross-examination and there is no problem.
However, the judge may find on the contrary that the defendant is abusing his position. He then sends out the jury and says to the defendant, "I've already told you about the rules we have. Now, let's get this quite clear. We'll go back into open court and if you don't adhere to what I have told you, I shall stop your cross-examination and I shall put your case to the jury myself, as you've explained it to me". They go back into open court and either the defendant has learnt to behave himself, or he has not, in which case the judge carries out the cross-examination, having explained to the jury that he is adopting that course because the defendant will not comply with his instructions.
That is a very uncomplicated position in relation to a situation which is not likely to happen frequently. I suggest that that is what the Lord Chief Justice has well in mind in the case of R v. Brown; and it is what the judiciary supports throughout. The present situation (of trying to foist on to a difficult defendant legal representation which he will refuse) does not arise and the danger of an unjust conviction or an unjust acquittal, to which the Lord Chief Justice has referred more than once, again does not arise. I respectfully suggest that perhaps the Minister might reflect at greater length on what I have said between now and Report.
Lord Williams of Mostyn: I have to disagree with the noble and learned Lord, Lord Ackner. These provisions in part are intended not to deal simply with the nature of cross-examination. The noble Viscount, Lord Brentford, gave as an example someone who is terrified at the prospect of being asked questions by the alleged stalker or an elderly woman who is terrified at being asked questions by a notoriously bullying thug. It is the prospect of that experience, not the particular
26
questions, which may bring about the vice that we are addressing. There is no need to wait until the prosecution has finished opening the case. The directions can typically be given at a plea and directions hearing, before the jury is empanelled, to ensure the efficient and effective conduct of the case.
The noble and learned Lord said that the questioning by the advocate would be "foisted" on the defendant. I respectfully repeat the present position. If, in the child witness cases, there: s a blanket refusal to allow the unrepresented defendant to cross-examine in person—and there is—the only present alternatives are: no cross-examination at all (in other words, no testing of the evidence), or the judge himself "foists"—I use the noble and learned Lo:1-d's word—his cross-examination on the defendant. The defendant has no right to step that. The judge is in charge of the court and the case.
We are offering an improvement or the present system so that if a defendant wishes he may have legal representation for the forbidden in-person cross-examination. He can do all the rest of the cross-examination and the conduct of the case himself. If he will not appoint a lawyer himself for the otherwise forbidden cross-examination, the court will appoint a lawyer. I do not see any difficulty about that. However, as always, I shall pay careful attention to everything that Members of the Committee have said and in particular to the words addressed to me most recently by the noble and learned Lord, Lord Ackner.
Lord Thomas of Gresford: We regard the adversarial system as the centre of our criminal justice system. It requires examination and cross-examination of witnesses in order to discern the truth. That cross-examination has to come from a person who is fully informed of the case that he is seeking to put. If a defendant chooses to act in person he may or may not be more skilled than a lawyer, but he is at least fully informed of the case he wishes to put.
The problem with the imposition of a lawyer on an unwilling defendant is this. It throws askew the whole adversarial system to which we have been accustomed and which has grown up over centuries. It puts into the equation a completely unknown factor. It may be that there can be some justification for that in_ very special cases such as when children are involved or where there is a complaint of rape or other sexual offences. I can live with that. But the Bill envisages that this protection is to be extended to witnesses across the system. It can apply to any case and any witness. As the noble Lord just said, it can be applied not because the defendant is misbehaving himself an any way in defending himself or that he has overstepped any particular boundary or mark; it can be imposed on him because of the particular sensitivity of a particular witness. So in every type of case and with every type of witness there can now be a new, unknown factor introduced into a system which is balanced and which we believe has arrived at the truth, by and large, in the criminal cases heard in this country.

27
We are stepping into completely uncharted waters. For the moment I seek leave to withdraw these amendments, but I shall return to them.
Amendment, by leave, withdrawn.
Lord Hoyle: I believe that this is a convenient time to take the Statement. Before we move to the Statement on the National Strategy for Carers, I would like to take the opportunity to remind the House that the Companion indicates that discussion of a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

National Carers Strategy
4.13 p.m.
Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, with the leave of the House, I shall now repeat the Statement being made in another place by my honourable friend Mr. Paul Boateng. The Statement is as follows
"With permission, Madam Speaker, I would like to make a Statement about the publication today of the Government's National Strategy for Carers.
"The Prime Minister announced plans for a National Strategy for Carers, which he asked me to lead, on 10th June 1998.
"The Government believe, as the Prime Minister himself said last June. that carers play a vital role in the community and also in supporting families. Without them, the NHS and social services could never hope to provide that which they contribute to the care of the sick and vulnerable. The Government are determined to see that carers get the support they need.
"The Prime Minister said that the national strategy should bring together existing initiatives into a single package for the first time. We have done more than this. As I shall explain, we are today announcing a substantial new policy package for carers.
"The work on the National Strategy for Carers has involved a large number of organisations: not only Government departments, people from the National Health Service and local authorities, but also individual carers, representatives of carers' organisations, and of more specialised voluntary organisations which help, for example, people with mental health problems. We are grateful to all of those who joined working groups and to those who attended a major consultative conference on the strategy held last November.
"The policies of a large number of Government departments impact on carers. The document published today involves all of them. We held for the very first time two meetings of a Ministerial Group specifically established to consider carers issues.
"People who provide care for their relatives or friends who are disabled, vulnerable or frail can devote large parts of their own lives to looking after others. Many of them are also in paid work. The majority of carers are women. All of them need some help and support. Our National Strategy for Carers describes what we have been doing. It describes what we are going to do. Carers will have better information. They will be better supported. They will be cared for better themselves.
"Two-thirds of carers of working age are in paid employment. For many of them, combining work with caring can be difficult. The Government's family-friendly employment strategy will help them. We will give carers the right to time off to deal with a family emergency. A carer might need, for example, time to take his or her elderly parent to hospital following a fall. The Second Reading of the necessary legislation, the Employment Relations Bill, is scheduled for tomorrow.
"We have also considered those carers who cannot combine paid work with caring. For those of working age, many of them would like to do so. Even more would like to be able to return to work when their caring responsibilities come to an end. We will consider the scope for extending the New Deal to help carers to return to work. We will publicise the benefits—to employers, as well as to carers—of flexible, carer-friendly employment policies. We will consider our own position as a major employer and make sure that we set the highest standards for carers working in the public sector.
"Carers also need support from the statutory services. This does not just mean social services. All services need to provide carers with information and to involve them in the planning of services. Only in this way can services be more responsive to carers' needs.
"The National Health Service has an important role here. First, it must help carers to maintain their own health. Half of all carers in a recent study said they had suffered from a physical injury since they began to care. Half said that they had been treated for stress-related illnesses. The Government's National Priorities Guidance to health and local authorities will require those authorities to help carers to maintain their health and emotional wellbeing.
"The National Health Service must also provide information to help carers to care. They need to know about the health needs, treatment and medication of the person they are caring for. Of course this can only be done with the consent of the patient. But sometimes doctors do not ask whether the patient agrees. We believe that doctors should always do so.
"We have already announced an extra £750 million for local authorities over the next three years to help them promote independence, especially through

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greater partnership with the health service over prevention and rehabilitation. People who need care, and their carers, will benefit from this.
"We are providing additional funding, from within the Comprehensive Spending Review plans, of £140 million for England over the next three years specifically to help carers. This will be a new ringfenced special grant. It will go to local authorities to extend the range of services they provide to give carers a break from their caring responsibilities. The research evidence shows that carers who have a break are better able to cope and that their own health suffers less. The new special grant will total £20 million in 1999–2000, £50 million in 2000–2001, and £70 million in 2001–2002.
"We also intend, when parliamentary time allows, to introduce new legislation to extend the powers which local authorities have to address carers' needs directly. At the moment, the focus of most of the legislation is on the person needing care. We want carers to have more control over the form and timing of the services which they need. This is especially true of services. designed to give them a break from caring.
"The national carers' strategy will also help some specific groups of carers. First, we are announcing today that there will be a reduction in council tax for some disabled people. People who live in accommodation which is valued at band A and which has an extra room, which they need because of their disability, or enough floor space to allow them to move around in a wheelchair, will receive a reduction in council tax similar to that which is given now for the other bands. This change will be made from 1st April 2000.
"Secondly, we have particular concerns about young carers. The Government are taking extensive action to offer new help to children and young people. We are placing particular emphasis on supporting the most disadvantaged children and their families. Children who have to provide personal care to a parent may not realise that they are carers. But their attendance at school can suffer. They can also have difficulty doing their homework. Often they have no time for leisure, for play, or to meet their friends. The Government will promote awareness of the needs of young carers. We will encourage schools to make sure there is someone to support them. This need not be a teacher—it could be someone else with the right skills and time 1:0 develop special expertise. Children who are carers may need help to contact professionals in the health service, the social services, or a local project worker specifically for young carers.
"There is also a group of children who need more care themselves than other children of the same age. Their parents are particularly in need of help and support. They may feel unable to spend enough time with the rest of their family. We are increasing the help and support that we provide to parents with a disabled child. We have already announced new objectives for children's services, which require local and health authorities to work together to meet the
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needs of disabled children. Social services will get an extra £375 million to help them to meet the needs of vulnerable children. We are also introducing new children's nursing teams, in memory of Diana, Princess of Wales, to support those children who have life-threatening health problems. These will cost £2 million a year initially, and we are establishing 10 teams around the country.
"Many carers need help and support in the neighbourhoods where they live. In general, we believe that this is best provided by voluntary organisations. Carers' centres are one example. These already exist in a number of areas. We want to make sure that all carers have access to a support service near to where they live. The national strategy report also describes how we intend to make sure that carers get a high quality service from such carers' centres.
"The National Strategy for Carers contains a great deal of information about carers and their needs. But in some cases we lack information. This is why we will be introducing a new question about carers in the 2001 census. The results of this new question will tell us, for example, how many carers there are in each local authority area. The information will allow local authorities to plan much better how to provide services for carers to meet their needs.
"The Government believe that what carers do should be properly recognised and properly supported. We—the Government and the whole country—should take pride in carers. The Government are determined to make sure that carers can feel proud of what they do and of a society which recognises the debt of gratitude that we owe them for doing it."
My Lords, that concludes the Statement
4.23 p.m.
Earl Howe: My Lords, the House will be particularly grateful to the Minister for repeating the Statement, which contains much that we can welcome. The proposals highlight a very sizeable group of people in our society whose daily work is as vital as it is unsung. We are at one with the Government in their wish to give them the recognition or their efforts that they deserve. We hear much nowadays about the supposed breakdown of family life and of the disappearance of the sense of duty and the sense of responsibility accompanying it. However, it is the carers in our society who, thankfully, belie that rather depressing image. They are people who voluntarily shoulder a heavy burden of responsibility and often, in the process, a heavy emotional burden, sometimes from a young age and sometimes for a period of many years' duration. As the Statement says, if we did not have such people, it would be hard to imagine how the NHS and the social services would be able to fill the gap anything Ike adequately.
We welcome the additional funding that has been earmarked and ring-fenced to enable carers to take breaks from their responsibilities. However, I have two questions for the Minister in that respect. First, can the noble Baroness say how much of that money is newly announced money; and, secondly, can she tell us what

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kinds of respite care the Government envisage? As the Minister will know, the availability around the country of regular respite care for the elderly is very variable and often involves the elderly person having to be moved out rather than someone coming to the house from outside to take the carer's place. Can the Minister confirm that it is the latter type of arrangement that the Government wish to encourage? Can she also say what emphasis the Government are placing on involving the voluntary sector in these initiatives? I mention that particularly because of the reduction in funding to voluntary groups which has been forced upon local authorities by changes in the distribution of local government grants. Indeed, in some areas, the changes have led to cuts in social services. Therefore, one cannot help feeling that this announcement, at least in part, is a case of the Government giving with one hand and taking away with the other.
The Statement rightly calls attention to the need for better information about the services currently available to carers, as well as those which are proposed. Is there anything more the Minister can tell us as regards the Government's ideas on the matter? One extremely important aspect is the need to raise awareness of training opportunities for carers, especially in terms of first aid and health and safety. Does the Minister agree with that and, if so, can she say what sorts of opportunity for training the Government would like to see provided?
We welcome moves to augment the pension entitlement of carers. But, again, I am afraid that it is a case of the Government giving with one hand and taking away with the other. As the Minister will know, it is the Chancellor of the Exchequer's targeting of pension funds and the poorest small savers which is set to yield very substantial inflows into the Treasury in the years ahead. I welcome further details of the Government's pension proposals. However, does the Minister agree that the carers of today are equally deserving of the benevolence of the Chancellor of the Exchequer? Will she seed the thought in the mind of her right honourable friend of the merits of a transferable tax allowance for single-earner married couples to ease the burden on such couples where one partner gives up work to take on the responsibilities of a carer?
The extent to which these proposals have a real impact on the lives of carers depends, critically, on the way in which they are developed at local level. Can the Minister tell us what specific initiatives the Government wish to see taken by local authorities? Equally, can she say what concrete proposals the Government have to encourage carer-friendly employment policies both in the public sector and in the private sector, as opposed to the inevitably more generalised approach adopted in the Employment Relations Bill? Given the structure of the Government's New Deal, can the Minister say what provision is to be made by the Government for carers who are either unable or unwilling to return to work because of caring commitments?
As I indicated earlier, we welcome these initiatives and look forward to following their implementation in practice over the months and years ahead.
4.28 p.m.
Lord Clement-Jones: My Lords, I join the noble Earl in thanking the Minister for repeating the Statement. In many ways, the strategy document is a very impressive one. From these Benches, I pay tribute to the something like 6 million carers who, I believe, save the state around £34 billion—a very large figure—in terms of the work that they do in looking after friends and relatives. Such caring would otherwise have to be paid for by the state. We are certainly very conscious on these Benches of the work that they do and also of the voluntary organisations which represent them so effectively. A number have been mentioned today and also feature in the document.
We welcome the commendable and notable speed with which the strategy has been put together since last June. The carers' strategy contains many important practical elements but the financial aspects of the package are somewhat modest. We should not become carried away by the proposals. We welcome the respite care proposals and also the brochure which accompanies the strategy paper. Can the Minister confirm that the Government will consider more generous measures in future? If one calculates the amount per carer of the financial package for this coming year, the amount is about 15p per week. Will the Government therefore consider more generous measures in future?
My next point was mentioned by the noble Earl. The Government have acknowledged that social services' budgets will be about £100 million short this year. We know that the carer assessments are not up to scratch and only about two out of 10 carers have so far been assessed by their local authorities. What impact will the lack of resources for local government have on those assessments? As regards retirement, we welcome the announcements about second pensions. We look forward to hearing further details in due course. Today's carers are of key importance. What consideration are the Government giving to providing benefits beyond retirement age to today's carers?
We also welcome the consideration that is being given to extending the New Deal to carers returning to work. When will that decision be made? We welcome the Government's commitment to carer-friendly employment policies and their commitment to monitor those policies. However, monitoring by itself is not enough. That needs to be benchmarked against best practice by other major employers and other government institutions. We welcome the statement about national priorities guidance and in particular the requirement on health and local authorities taking account of carers' needs. But what consultation requirements as regards health improvement programmes will be built into legislation?
The Government make strong and welcome statements in the strategy document about information for carers. I welcome the references to the StartHere project. That may play an important role in providing information for carers and health professionals. Will the Department of Health consider bringing forward the evaluation of that project to a date earlier than April 2000?

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The Government have naturally raised expectations through this strategy. We welcome many of the proposals. However, the strategy is not so much a revolution as modest evolution towards proper consideration of the needs of carers. We welcome it but we look forward to hearing of more extensive proposals on the financial aspects.
4.33 p.m.
Baroness Hayman: My Lords, I am grateful to the noble Earl and the noble Lord for their support of the thrust of government policy and also for their generous recognition of the enormous role that carers play in the fabric of society and communities in this country, and the individual and communal support that they provide to many of our fellow citizens.
First, I shall mention funding and resources. The noble Lord, Lord Clement-Jones, said that the proposals were modest. I urge noble Lords not to look simply at the £140 million special grant, but to recognise that, for example, £750 million will be allocated to local authorities over the next three years to help them to promote independence by concentrating on prevention and rehabilitation. That will be important for people who need care and for their carers. I refer also to today's council tax announcement. Those measures will all be helpful.
The £140 million special grant is new money in the sense that it is ring-fenced. It is part of the £3 billion extra money for personal social services that will be made available, During the CSR period. It will be distributed in the yearly tranches to which I referred in the Statement. The noble Earl, Lord Howe, asked exactly what the money would be allocated for, the role of the voluntary sector and about getting away from some of the rigidities as regards the models of service and breaks that have been offered in the past. The measure is aimed at widening the scope of the provision that is available and encouraging innovation based on the articulated needs of people in different local authority areas.
One of the conditions of receiving respite care grant is consultation with local carers and the voluntary services about the kind of services which should be provided. I believe that the search for diversity will result in a greater focus on home based services and flexible services that may allow people to spend a period out of their own homes rather than the person needing care having to leave his or her home in order for the carer to have a break. Often the carer knows that that is not acceptable to the person receiving the care and therefore the carer does not get a break. We shall seek to provide respite in a more acceptable way. That is the philosophy that the Diana nursing teams will seek to follow. For example, we seek to allow parents the opportunity to attend parents' evenings for their other children, secure in the knowledge that someone whom they trust is looking after the child who needs care in their own home. I believe there are much more flexible ways in which we can provide that kind of help.
I accept the need for training of carers which was mentioned. This links in with the point about identification. If a general practitioner knows only about
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a patient and not about his or her family circumstances, and does not know therefore that the patient's carer needs advice or training, for example, on lifting, that advice or training will not be made available. I hope that the clear lead in the national priorities guidance will make people focus on that point. I believe that in the past some of the discharge arrangements have not focused on assessing carers' needs as well as the need for adaptations in the home; for example, when someone is discharged from hospital. We need to adopt a different philosophy that encompasses the needs of carers.
I was asked about the New Deal. We shall certainly consider the best ways of assisting carers to return to work. I am afraid that I have lost my place in my brief and I shall have to write to the noble Lord on that point. Carer-friendly employment policies will need to become an integral part of our policies to encourage family friendly employment. Our strategy is to promote good practice in that regard. I am grateful to the noble Lord, Lord Clement-Jones, for welcoming the respite breaks publication which accompanies the report. That document shows how this measure can be provided.
As to pensions, we should not undervalue the importance of the new entitlement to a second pension. In the nature of pension provisions, it takes time to build up. Carers are particularly vulnerable as regards not building up a pension entitlement because of the interruption of their employment during times of caring. That can be exacerbated for women who become carers after a period of interrupted employment bit the purpose of being at home to look after children. In the long term, it is very important that we ensure that the thousands of carers who have to take a break from employment benefit from these proposals.
In the short term, from April 1999 the Government will introduce a minimum income guarantee for the poorest carers, who will receive a minimum of £75 a week through income support. Very clearly, in all areas of health policy, social security and taxation, our duty is to provide support to the very poorest.
I take the point that the £140 million of the special carers grant will not solve all the problems or provide a vast array of services for every carer in the country. We want the grant to stimulate more conceited action by local authorities, working closely with the health service, to systematically identify the needs of carers in the locality; to draw up plans to meet those needs; to ensure that the provisions offer much greater diversity and flexibility than the existing provisions; and to systematically involve carers and carers' organisations in their planning and implementation. If we put in place that framework, we will have done an enormous amount on which to build.
4.42 p.m.
Lord Taylor of Gryfe: My Lords, I declare an interest. For many years I have been associated wilh a voluntary organisation operating in this field, Scottish Action on Dementia—SAD—which is an appropriate name. I congratulate the Minister and the Government on this very important and belated recognition of the debt we owe to carers in our society.

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Recognising that health will be devolved in May of this year, I would ask the Minister whether similar legislation is anticipated for the provisions made in this Statement to apply in Scotland. That is terribly important.
I congratulate the Minister on her recognition of the role of the voluntary services. In the organisation to which I referred, we have a network of community groups in towns and villages in Scotland who perform voluntary services. They will be encouraged by the Statement. That is important because many of them lose heart when voluntary work goes unrecognised.
We have established in Stirling University a chair for carers, for training people to care. That is why I was glad to hear the reference to training. I hope that that outpost, which is difficult to maintain and finance, will continue to be recognised as a national training centre, not necessarily as a Scottish operation. Can the Minister give me some encouragement that the important principles in this valuable Statement will be extended to Scotland, despite the activities of devolution in the year ahead?
Baroness Hayman: My Lords, I am grateful to my noble friend for his comments. I am interested to hear about the work of Stirling University. I would be deeply disappointed if devolution meant an end to learning from each other in these areas. I am sure that we have much to learn from that centre. I shall ensure that we investigate ways in which the practices developed there can be spread.
The noble Lord will be reassured to know that in Scotland the commitments are being taken forward by an action plan to modernise community care, published in October. A key element of the plan is to provide £5 million additional money for respite, homecare and other services. The thrust of the policy described for England and Wales is very definitely being taken forward within Scotland.
Baroness Pitkeathley: My Lords, perhaps I may—
Baroness Ludford: My Lords, I was about to give way to the noble Baroness, Lady Pitkeathley, in recognition of her valuable role. I am honoured to be the ward councillor representing the Carers National Association in my ward of Clerkenwell, Islington.
This is definitely a solid step forward in the recognition of the vital contribution of carers but, as my noble friend Lord Clement-Jones said, it obviously will not solve all the problems. The Minister has stressed that the ringfenced £140 million is just one aspect of the increased funding. Unfortunately, the reality on the ground is that many local authorities are having to make severe cuts in social services. The additional funding is £20 million in 1999–2000. My local authority is having to cut £15 million from its budget, of which several million is for social services. Welfare advice agencies are also being cut. That will affect the advice given for claiming minimum income support.
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Will the Minister keep up her efforts for greater funding? The reality on the ground, as experienced by carers, is that this is a mixed bag because of general cuts in social services. When the new legislation to extend the powers of local authorities to address carers' needs is introduced, will the Minister ensure that the money to implement those powers is available; otherwise, instead of greater hope for carers, it could lead to some disillusionment?
Baroness Hayman: My Lords, I note what the noble Baroness says. Of course it is very important. Resources are essential—and everyone wants to see greater resources—but an issue like the new legislation, which establishes the principle that carers will be entitled to help in their own right, is a very important one. It is very significant for individuals and organisations working in this field.
It is tremendously important to recognise that sometimes we can do things by having more flexibility without spending extra money. For example, it might be better for a carer who wants to go out for three hours to attend evening classes to receive money for a taxi home. That avoids the need for someone to be in the home for four hours because of a longer journey time. At the moment, a local authority can only provide the service to the people who need it, not to the carer—so we are not always talking about extra money.
The £140 million will be ring-fenced. In the package we are bringing together—on the housing front; on the proposals for family friendly policies; in recognising the needs of carers who are in employment; and particularly in the proposals for young carers in respect of their educational needs—we recognise the burdens that carers carry. This is a tremendously important area, not necessarily hugely expensive, but one that can make an awful lot of difference to their lives.
Lord Rix: My Lords, as the person who introduced the Disabled Persons and Carers (Short-Term Breaks) Bill into your Lordships' House during the term of the previous government, which was supported by all sides of the House, including of course the current Government, I have three brief questions. First, will the legislation to be introduced place a statutory obligation on local authorities to ensure that carers' needs are assessed and that assessment takes account of both the needs of the disabled person and the carer in regard to respite care and short-term breaks? The Minister may notice that I am holding in my hand a booklet published this month by MENCAP and entitled Fully Charged: How Local Authority Charging Is Harming People With A Learning Disability. That leads me to my next question. Is the Minister aware that a number of local authorities charge for respite care for children with learning and other disabilities? Therefore, will the new funding put a stop to this practice and enable parents to make full use of the breaks which are to be offered to them?
Baroness Hayman: My Lords, our approach, which is different from that taken by the Bill with which the noble Lord was associated, is very much one of

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supporting the principles that exist in community care and children's legislation. Our approach will mean that proper attention will be paid to carers' needs so that services can be provided directly to both the carer and the person for whom he or she is caring. The noble Lord asked about charging and referred to what is going on in some areas. We shall have to look at that in some detail when we see what specific schemes are introduced under the grant proposals. I hope that we will be able to provide a great deal of what the noble Lord is looking for in terms of more flexible support for carers and the people they care for, often in their own homes, and a greater availability of respite care. Perhaps I may write to the noble Lord on some of the detail.
Lord Renton: My Lords, I declare an interest. I have a very severely handicapped daughter—she is mentally and physically handicapped—and like the noble Lord, Lord Rix, I was chairman of MENCAP. I have not yet had the advantage of seeing the Statement. When I heard it, I welcomed it. If I may say so, the noble Baroness, Lady Hayman, deserves credit for the very caring way in which she deals with these matters when they come before your Lordships.
I do not know how far the Statement goes in providing for those cases where the family can no longer provide care. That arises when the parents are either too old or die—or one of them dies—or when the child is so severely handicapped that he or she could not be looked after at home. If the Statement does not go that far, I wonder whether, before long, the Government will issue a statement about the help that can be given to village communities, which have a great advantage, and to those living in the community who are not so severely disabled that they could live in a small home and perhaps go out to work. Those are the two most important ways of looking after handicapped or disabled people when they can no longer be looked after at home.
Baroness Hayman: My Lords, I am grateful to the noble Lord, Lord Renton. I know of his long-standing concern in this area. The issue of village communities has been discussed! in your Lordships' House before. I know that my honourable friend John Hutton, who has responsibility for this area, met representatives of the movement to encourage village communities. He is well aware of the feeling that a range of provision needs to he available to people with learning disabilities. I recognise that in some areas there is a feeling that this is the most appropriate form of provision. I recognise the anxiety that parents often feel about their ability to cope in the future as handicapped children grow older and about what will happen to them when they are not there and able to cope. It is part of the long-term planning responsibilities of social services departments to ensure that provision is available after the caring is no longer done by the carer. There is a responsibility for doing that planning—not imposing sudden change, which can be very disruptive, but involving carers in discussing long-term plans before they are needed.
Baroness Pitkeathley: My Lords, I am sure that my noble friend will understand what a happy day this is
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for me. As she said, the Statement and initiative will not solve every problem of every carer but in my view it ranks with the introduction of the invalid care allowance and with the passing of the Carers Act in the history of the carers' movement. Perhaps I may he permitted to add my congratulations to all those who have been involved and also my thanks to Members of your Lordships' House on all sides who have always been so supportive of the carers' issue.
Does my noble friend agree that this marks the passage of carers from the margins to the mainstream of social and health policy? Does she further agree that how we monitor and evaluate the allocation of specific sums of money to local authorities is important in ensuring the best possible value for carers and ensuring that the needs of all groups of carers, including not just young carers and parent carers but the needs of carers from minority ethnic communities, are not overlooked?
Baroness Hayman: My Lords, I am delighted that my noble friend has had a chance to speak on this subject. It would have been deeply ironic had she not, given her immense personal contribution to the cause of carers in this country. She demonstrated some of the vision that has made her such an effective campaigner by focusing not on "this sum of money" or "that sum of money" but on how we transform the way in which we think about carers and how we integrate their needs into the planning of health and social services. I very much take her point that we need to monitor and evaluate. Whatever money we spend, we want to ensure that it is spent effectively. The Statement refers in particular to the needs of young carers, but my noble friend is right to remind us that carers and the people for whom they care are a diverse group. They may include short-term carers and long-term carers; there may be people who have a physical disability or a mental illness; and there may be people with very specific needs because of the ethnic group from which they come or for a variety of other reasons. That is one of the reasons why it is important that we push down to local level the responsibility for ensuring that local plans are sensitive to the needs of local communities.
Lord Pearson of Rannoch: My Lords, I, too, should declare an interest as the honorary president of the National Society for Mentally Handicapped People in Residential Care, and also as the father of a mentally handicapped child. I should like to join other noble Lords in congratulating the Government on this initiative and in welcoming these papers. I particularly welcome the answer that the Minister gave to my noble friend Lord Renton.
As there are a few minutes left on the clock, I thought it might be in order to underline the seriousness of the situation which affects particularly mentally handicapped people; that is, people with leaning disabilities and severe learning disabilities in this country, of whom there are about 156,000, a large proportion of whom still live with their families. The problem is well set out on page 18. We see that 27 per cent. of all carers are already over 65. Therefore, the problem, exacerbated as it is by "the bulge" and other

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factors, is getting worse. The noble Baroness suggested leaving this problem to social services at local level. But in order to encourage village communities in the way my noble friend suggested I fear the Government will have to put a little pressure on those social services at local level. Encouraging village communities is one option that is available in future. There is already acknowledged to be a shortage of 25, 000 residential beds for mentally handicapped people, and that number is still rising. Therefore, my only question to the Minister is: will she please feel able to exert a little pressure from the centre at local level, because the whole concept of village communities is, I am afraid, still resisted at local level and does not fit with the Government's laudable intentions of choice and opportunity for this very vulnerable section of society?
Baroness Hayman: My Lords, I note with care what the noble Lord says on this issue. As ever, we must strike the right balance between national policy and local sensitivity to local needs. If I inadvertently gave the impression that the responsibility lay solely with social services at local level, that is not correct. The national priorities guidance spells out clearly the shared priority between health and social services in this area. The carers strategy goes sufficiently wide to show a recognition that there are many other areas of government which also need to be brought in if we are to provide the range of services and facilities that are needed by carers and their dependants.

Youth Justice and Criminal Evidence Bill [H.L.]
5.3 p.m.
House again in Committee on Clause 37.
[Amendments Nos. 109A to 111 not moved.]
Clause 37 agreed to.
Clauses 38 and 39 agreed to.
Clause 40 [Restriction on evidence or questions about complainant's sexual history]:
Lord Dholakia Lord Dholakia moved Amendment No. 112:
Page 28, line 19, after ("behaviour") insert ("or any medical history in relation to mental disorder").
The noble Lord said: Chapter III deals with the protection of complainants in proceedings for sexual offences. This amendment is grouped with Amendments Nos. 123 and 126. To save time, perhaps I may speak to all three.
I have been associated with a number of mental health charities and I wish to express their concern. Clause 40 places restrictions on evidence or questions about a complainant's sexual history in the case of sexual offences. I believe that the same protection should be afforded to evidence or questions about a complainant's history of mental health problems. Such questions can be used to prejudice the jury against a witness and attack that witness's credibility and character. Amendments Nos. 112 and 123 seek to introduce restrictions so as
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to avoid such situations. It should be stressed that this provision relates to the protection of a victim of rape or sexual assault who has a history of mental health problems against the defence attempting to use questions about his or her mental stability or to attack his or her credibility and character.
Cases have been brought to my attention where general evidence of a complainant's history of mental health problems has been used to undermine her credibility as a witness without any reference to her mental state at the time of the incident. These amendments are designed to prevent the introduction of this type of evidence unless it is related directly to events at the time of the alleged offence.
Amendment No. 126 would add an additional sub-paragraph to make it clear that,
"'mental disorder' means mental disorder within the meaning of the Mental Health Act 1983".
I beg to move.
Lord Desai: I support the amendment. I apologise to the Committee; I did not speak at Second Reading and rise to speak only to Clause 40. The clause is crucial; however, there are problems. One problem, as pointed by the noble Lord, Lord Dholakia, relates to the evidence that a complainant is asked to present in relation to her history.
The amendment concentrates only on mental history. It is right that there should be restrictions on the kind of evidence that is presented. Because the question of mental stability and instability is delicate, especially in relation to the issue of rape, where the person's mental state may be delicate anyway if he or she is being attacked, it is important to guard the rights of the complainant. Therefore, whatever care can be taken to protect the rights of the complainant is to be welcomed. Therefore I support the amendment.
Lord Lester of Herne Hill: I, too, support the intention behind my noble friend's amendments. As he said, Amendment No. 112 would amend subsection (1) of Clause 40 to prevent questions about any medical history in relation to mental disorder being put without the leave of the court. I support that intention. However, I have some concern about the wording.
The amendments are not wide enough to prevent a woman complainant from being asked, for example, whether she has ever had an abortion. It is important to restrict a defendant's access to an alleged rape victim's medical and therapeutic records, but that has to be done with sensitivity and balance.
There was a notorious case in Canada in which a bishop brought into open court the counselling records of the women whom he was found to have raped. In 1997 the Canadian Parliament enacted amendments to the Canadian criminal code to restrict a defendant's access to records of that kind by requiring a specific application to be made to the judge for access. The judge is then required to consider a specific series of factors which balance the accused's ability to make full answer and defence and the victim's right to personal privacy and equality of treatment.

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I mention that at this stage because, whatever the Government's attitude may be to my noble friend's amendments, it seems to me that a provision along those lines might well be worth further consideration at a later stage during the Bill's passage.
Lord Monson: Of course, we must heed complainants' rights, but we must also pay attention to defendants' rights. Surely, Amendment No. 112, even as qualified by Amendment No. 123, loads the dice excessively against the defendant. After all, there have always been individuals who are mentally unbalanced in some way, who have a long history of making serious false allegations against totally innocent strangers or even totally innocent acquaintances. I submit that if Amendment No. 112 is agreed to, those innocent individuals may be put at risk.
Lord Williams of Mostyn: I sympathise with the intention behind this amendment as described by the noble Lords, Lord Dholakia and Lord Lester. The complainants are lot on trial and their lives should not be combed through to find some detail that the jury might take into account unless it is strictly relevant.
Evidence that a complainant has or has had a mental disorder can already be excluded by the court if the court thinks it is irrelevant to the issues at trial. If the mental condition has been short-lived or adequately controlled and there is no medical reason to believe that it was relevant, then prosecutors should not be reluctant to let the court decide on admissibility.
The amendments go further. They would have the effect of making mental disorder irrelevant in law to the defence of consent, unless specific evidence of disorder at the time of the alleged offence could be produced.
I sympathise with the purpose of the noble Lord, Lord Dholakia, but mental illness is not always irrelevant and a witness's mental state can be relevant to whether he or she imagined that an offence took place or whether he or she is deliberately making a false allegation. In certain cases, the state of mind thereafter—in other words after the offence—and at time of trial may well he relevant.
The clause would need to be widened to cover abortions and so on, which is the specific point raised. I have a good deal of sympathy with the protection that ought to be given. I think I can be helpful to the noble Lord. One of the real complaints at the moment is that some defence lawyers embark on "fishing expeditions"—and this is a mischief of which I have knowledge—to obtain documents from third parties such as doctors or hospitals. That is becoming a considerable concern.
The comfort I think I can give to the noble Lord is that Section 66 of the Criminal Procedure and Investigations Act 1996 introduced new provisions for issuing witness summonses to attend the Crown Court. That is intended to help deal with the problem. Section 66 will be brought into force this spring. It means that there will have to be a witness summons issued on application to the court. The application would have to be justified, specific and timely. At that stage,
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the third party—perhaps the doctor or the other professional adviser or the hospital—could contest the application, if necessary, should the court think it appropriate, on the grounds that the evidence was irrelevant.
That ought to be some comfort to the noble Lord because most of those lines of cross-examination are developed, as the noble Lord, Lord Lester, indicated, by having sight of the records and then developing the line of cross-examination. If you have to justify your reason for having the records brought to court, the provision ought to be a useful constraint on the abuse of some of those lines of questioning. I hope that that is helpful.
Lord Dholakia: I am grateful to the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Ackner Lord Ackner moved Amendment No. 113:
Page 28, leave out line 24.
The noble and learned Lord said: This amendment, together with Amendment No. 116, is directed towards maintaining the status quo in relation to restrictions on evidence at trials for rape. I remind the Committee of the status quo on the subject. The Heilbron Committee produced recommendations for legislation which were accepted. They are to be found in Section 2 of the Sexual Offences (Amendment) Act 1976 which states in subsection (1):
"If at a trial any person is for the time being charged with a cape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than the defendant.
(2) 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 a defendant: and on such an application the judge shall give leave if and only if he is satisfied: hat it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
I respectfully disagreed with the proposition put forward by the Minister during the Second Reading of the Bill which is now before us. At column 1238 of Hansard for 15th December 1998 he said
"I know that some of your Lordships, and some outside this House, have misgivings about some aspects of the provisions"—
that is, the provisions we are discussing.
"The Bill does not exclude all evidence of previous sexual behaviour, only irrelevant evidence. Taking rape as an obvious example, a complainant's previous sexual behaviour, whether one of wild abandon, tedium or total abstinence, is simply not relevant to the question of whether there was consent on the occasion in point; nor should it render a complainant less worthy of belie or less deserving of the protection of the law".
With great respect, that just is not right. Of course it is relevant. Credibility where the issue is who is to be believed—the complainant or the defendant—goes to a serious aspect of the whole case. That was made clear by my noble and learned friend the Lord Chief Justice in the same debate on 15th December 1998 at column 1272 of Hansard. He said:

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"The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well—I emphasise 'may well'—"be relevant. So, to recognise is not to open the door to abusive, insulting, irrelevant cross-questioning, which, in any event, is likely to repel any decent modern jury, but to recognise what many sensible decent jurors would consider a question that may be relevant in some cases".
I turn to one of the leading cases on the subject, R. v. Brown in the Court of Appeal. The Court of Appeal made it clear that if the questioning related to conduct which was merely relevant to credibility, then it would probably be disallowed. The crux of the matter is to be found on page 101 of the judgment of the Court of Appeal
"The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could be material upon which in these days a jury could reasonably rely to conclude that the complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary. It is in every case a question of degree".
That is why the Act reads in the terms to which I have drawn the Committee's attention.
It is my respectful submission that the law as set out in the statute is wholly adequate and does not need to be played around with. For the legislature to say that something that is potentially relevant, and therefore should be considered by a jury, is not to be put before the jury is a terribly serious step. If it is not put before the jury it may well be that had the jury had the material it might have reached a state of doubt which obliged it to acquit. What is happening here is that the discretion is to be removed from the court and in its place one has the absolute words of Clause 40. It is always a dangerous matter for the legislature to remove judicial discretion. We had experience of it in the Criminal Justice Act 1991 which placed judges in a straightjacket when sentencing, with the result that not long after that Act came into force amending legislation had to be introduced. Accordingly, I move that these clauses be dealt with in the manner that I have suggested.
The Deputy Chairman of Committees (Lord Ampthill): I remind the Committee that if Amendment No. 113 is agreed to I shall be unable to call Amendment No. 114.
Baroness Mallalieu: Amendment No. 125 standing in my name and that of the noble and learned Lord the Lord Chief Justice is grouped with these amendments. Perhaps I may speak to that amendment at this stage. Its purpose is simply to give to English and Welsh judges the same limited discretion as their Scottish counterparts were given when this aspect of the law was reviewed in Scotland in the Criminal Procedure (Scotland) Act 1995; namely, if the court considers that the evidence or question is necessary in the interests of justice to ensure a fair trial it may give leave. I hope that the Minister will be able to reassure the Committee that the judiciary here enjoys no lesser parliamentary confidence in exercising a very limited and carefully prescribed discretion than its Scottish counterpart.
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The starting point for consideration of Clause 40, as the noble and learned Lord, Lord Ackner, said, is whether it is necessary to change the law to restrict questions about a complainant's sexual history over and above the very considerable constraints that now exist. One's answer to that question depends on one's particular standpoint. Those who deal with individuals who allege that they are the victims of sexual offences see the matter from one clear and, in my view, extreme viewpoint. Women Against Rape for example believes that evidence of a woman's sexual history with a man other than the defendant should never be allowed with no exceptions. If one asks those who have given evidence as complainants in a sex case it is scarcely surprising if they, too, say that the questioning goes too far. When young I gave evidence as a complainant in court in relation to a sexual offence, which fortunately was not a serious one. I was cross-examined. I readily appreciate how vulnerable such witnesses feel and that virtually any question that challenges the evidence that is given will appear to be intrusive and excessive.
But I hope that as a result of nearly 30 years of both prosecuting and defending in these cases in the courts I can now view these matters from both sides. The reality is that not all complainants tell the truth. Questions that are merely designed to embarrass, humiliate or blacken the complainant in the eyes of a jury must never be permitted to be asked, but relevant questions that are necessary to ensure justice is done must continue to be permitted. It must be right that no one's best interests are served by wrong convictions, least of all those who are genuine victims, because when miscarriages of justice come to light, as they sometimes do, juries thereafter are even more reluctant to convict in cases where a conviction may well be more than justified.
In practice today in order to ask such questions of a witness in a sexual case it is necessary in the absence of the jury and the complainant for the judge to be convinced that the questions one proposes to ask, which one must outline, are relevant and necessary before the judge gives consent. In doing so the judge will clearly define the limits of his permission. In my personal experience such applications are not made nor is permission given lightly. Although this is a field of work in which I am engaged week in and week out I have no personal experience since the passing of the 1976 Act to which the noble and learned Lord referred of the law either not being complied with by a judge or being abused by counsel after leave has been given. I did have such experience before that date.
I have read and re-read many times Clause 40. I am still puzzled as to the extent of changes in the law that it makes. It claims to introduce a new restriction on evidence or questions about a complainant's sexual history. It does so against the background of the present law that the noble and learned Lord summarised a moment or two ago. I believe that at an earlier stage the Minister took the view that there was already adequate discretion given to the court under Clause 40 as presently drafted.
Perhaps I may consider the discretion that the clause gives as it stands. I believe that there are four separate headings. First, if the issue is not consent and to refuse

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permission to ask the question or give the evidence may make the verdict unsafe, then that evidence or question is permissible, subject to the judge ruling that it is relevant and necessary. Secondly, if the issue is whether the accused believed that the complainant consented under Clause 41 the evidence is permissible, subject again to the judge being satisfied. Thirdly, if the issue is consent and the sexual behaviour about which the questions are to be asked happened within 24 hours either before or after the event, and to refuse to allow those questions may render the verdict unsafe, the evidence is permissible. Fourthly, if the issue is consent, and the evidence to be adduced relates to evidence called by the prosecution about the complainant's sexual behaviour, and in the opinion of the court goes no further than rebutting or explaining that evidence on behalf of the accused, it is permissible.
When the Minister and his officials from the Home Office kindly met those noble Lords who were interested in the Bill before Second Reading to explain the Bill, a number of examples were put to him by noble Lords of facts which gave rise to concern. In each case the Minister reassured us by saying that on those facts one or other of those discretions would apply, and such questioning could be permitted. When the Minister deals with the amendments, will he give us an example of a question which is currently permitted under the present law? I refer, for example. to relevant evidence going to the issue of consent which, in the opinion of the judge, it would be unfair not to allow to be asked and which would be excluded by the proposed legislation. If there is no such example, what does this clause achieve? If there are examples of evidence which is relevant to the issue of consent, and which it would be unfair to the defence to exclude and which may now be excluded under this clause, h DW can it be in the interests of justice for the clause to stand unamended and not contain some further discretion?
I ask the Minister to consider a hypothetical example and to advise me and the Committee whether at present Clause 40 as drafted would exclude questioning and evidence about these matters. A prosecution is mounted against the defendant, the allegation being that he has met the complainant at a party, followed her to her home, climbed in through an upstairs balcony and raped her. The defendant says that at the party where he agrees they met, she invited him to re-enact the balcony scene from Romeo and Juliet. He says that he indeed followed her home, climbed in and consensual sex took place between them. Subsequently, but prior to the trial, evidence comes into the possession of the defence that the week before, and again the week after but outside the 24-hour period. the same lady met another young man at a party, on each occasion inviting him back to her house in identical circumstances, where consensual sex has taken place with each young man on each occasion. The evidence goes to the issue of consent, not to whether the defendant thought that she consented because he was wholly unaware of either of those incidents at the time of the act in relation to which he is charged.
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The evidence does not appear to me to rebut the evidence of the Crown that the complainant did not consent on the night in question or explain that evidence. Yet that evidence might be thought, I venture to suggest by most right thinking people, to put a very different light on the events which would be highly relevant to the jury's verdict. To reach the right verdict, the jury might well be assisted by having the full picture.
If I am wrong in my interpretation of Clause 40, and such evidence would be admissible subject to the judge being satisfied under this clause, I should be grateful if that were so and more than happy to be corrected. But if I am right, surely the judge should have a wider discretion than Clause 40 gives at present.
Further, the difficulty that we in this Chamber and those in another place have when considering legislation of this kind is that we cannot anticipate all possible factual situations which may arise. Hard cases make bad law. That is a cliché, but it is so often the truth. Recently I had experience in the courts of seeing legislation passed by this House less than two years ago operating in a way which I believe we never contemplated, and as a result obliging the court to impose a mandatory life sentence in circumstances which I suspect we never considered would give rise to such a sentence. After reading it many times, I am not sure whether Clause 40 is draconian or meaningless, but I suspect it to be the former.
Amendment No. 12:5 is a modest proposal. I ask the Minister to give it careful and favourable consideration. If he cannot do so, I should be grateful to know why he considers that a distinction should be made between Scotland and the jurisdiction of England and Wales.
5.30 p.m.
Lord Lester of Herne Hill: My Lords, I shall speak in relation to the group of amendments as a whole, some of which are, in the words of the noble and learned Lord., Lord Ackner, designed to preserve the status quo.
I begin by saying something about the mischief with which the clause is designed to deal. There is a myth, which can operate in courtrooms during rape trials. It is a myth which results in questions posed to a victim of rape which essentially make that victim feel that she is the one on trial. It is a myth which results in a great deal of injustice and inequality, with great respect to the: noble Lords and noble and learned Lords who have spoken.
The myth, based upon a stereotyped prejudice, is that unchaste women lie about sex. The consequence of that myth in some rape trials is a slew of improper, irrelevant and inappropriate questions posed by the defence about a rape victim's past sexual practices, past sexual partners and past medical history, even asking whether the woman has ever had an abortion. I ask myself: what possible relevance can such questions have other than to play on prejudices and myths? It is the same as allowing evidence of an accused's past convictions to go before a jury, and yet such evidence is barred because of its highly prejudicial nature.

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Because a victim's past sexual behaviour normally has little probative value to the issue of consent, I support the Government's proposals in Chapter III. The objective behind the proposals is not new. As the law stands now, as the noble and learned Lord, Lord Ackner, explained, we have Section 2 of the Sexual Offences (Amendment) Act 1976 which codifies the recommendation by the Heilbron Committee that the admission of sexual history evidence in rape trials should be the exception rather than the rule. But Section 2 relies on judges to decide whether and when such evidence should be excluded. As Professor Temkin of Sussex University has pointed out in her careful study of Section 2 (published in the 1993 Criminal Law Review at pages 3 to 20), which I have carefully read, the direction given to trial judges by the Court of Appeal has been to admit rather than exclude such evidence in particular on the issue of consent rather on the lines of the thinking in the speech of the noble and learned Lord, Lord Ackner. But consent by its very nature is to a person and not a circumstance. As Dame Rose Heilbron pointed out as long ago as 1975, evidence of a woman's sexual experiences with partners of her own choice is not indicative of a general willingness to consent.
Pace the noble and learned Lord, Lord Ackner—with great respect and friendship Clause 40 does not remove judicial discretion. It builds on Section 2. Its provisions seek to structure, guide and narrow the discretion exercised by a judge in deciding when a victim may be questioned about her sexual behaviour. There is no absolute bar on such evidence of the kind advocated by Women Against Rape. I wholly share the view of the noble Baroness, Lady Mallalieu, that that kind of extreme position would be contrary to the interests of justice and to other fair trials. But the structure proposed in Clause 40 provides for a limited number of grounds of admissibility, thereby preventing the prejudice which occurs when such evidence is admitted for inappropriate reasons.
There will, essentially, be three grounds. The first, in Clause 40(3)(a), is if the evidence relates to any issue which has to be proved in the case other than an issue as to whether the complainant consented. The second, in Clause 40(3)(b), is if the evidence relates to the issue of consent and the evidence relates to behaviour within 24 hours of the offence. I am not keen on the 24-hour arbitrary limit, but that is a side issue in relation to this group of amendments. The third, in Clause 40(5), is if the evidence is intended to dispute evidence that the prosecution has introduced about the complainant's sexual behaviour. There is also an additional requirement imposed on the court to consider whether refusing admissibility would render a jury's or magistrate's conclusion on a relevant issue unsafe. Clause 40 creates no new additional bar to the admissibility of evidence of the complainant's sexual history if the evidence relates to the defendant's belief that she had consented. The limited discretion operates in relation to the issue of consent itself, but not the issue of the defendant's belief.
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The provisions are well structured, carefully balanced and fair to both the accused and the witness. Those opposed to these provisions appear to argue that they would offend an accused's rights to a fair trial. We have not been given practical examples of exactly how the unfairness is said to result or likely to result from this clause. I leave it to the Minister to deal with the extreme hypothetical and curious examples put by the noble Baroness, Lady Mallalieu, about the Romeo and Juliet balcony scene.
The Supreme Courts in both Canada and the United States have confirmed that so-called "rape-shield provisions" do not automatically offend the right to a fair trial. And there are rape-shield provisions in Australia and New Zealand, all recognising the need to balance an accused's right to a fair trial with a victim's right to fairness, dignity and respect.
The Canadian provisions are a good example of balance, drafted with an input from the Supreme Court, women's groups and civil liberties groups, and eventually passing through the Canadian Parliament with all-party consent. To date, those provisions have survived constitutional challenge, and I am pleased to note that there is some similarity in approach between the Canadian provisions, drafted with an input from the Canadian Supreme Court, and those proposed in Clause 40. I believe that we should support these provisions on the grounds of fairness, justice and equal treatment for women in our courtrooms.
Opponents argue that they are unnecessary because the trial judge will ensure that only necessary and relevant cross-examination takes place. I have no experience as a criminal advocate nor of trying rape cases because I was only a humble Assistant Recorder and Recorder for a decade. However, I can say that until some five years ago I used to participate regularly at interviews with officials from the Lord Chancellor's Department of candidates for judicial office as Assistant Recorders. What we found again and again was that relatively senior members of the criminal Bar had a loose approach to what was and was not permissible in this area. That was despite judicial guidance, and it convinced me that legislative principles and rules are appropriate and necessary.
I do not blame those practitioners for that loose approach. I say with great respect and deference to the noble and learned Lord the Lord Chief Justice, who is in his place and will no doubt speak about these issues, that if one looks at the case law of the Court of Appeal Criminal Division one sees that it is loose in its guidance and does not treat the matter with the strictness that is required not only in the interests of justice but also in the wider interests of protecting witnesses in the way I have described. For those reasons, I oppose the amendment tabled by the noble and leaned Lord, Lord Ackner, and any other amendments which are designed to preserve the status quo.
5.45 p.m.
Lord Campbell of Alloway: Perhaps I may put another point of view. I have no civil liberties brief and,

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unlike the noble Lord, Lord Lester, in my early days I had considerable experience of rape cases on the western circuit. I shall be brief.
Let us start at the beginning. The purpose of the clause is to narrow judicial discretion. There can be no justification whatever for seeking to do that unless the extant law is either unsatisfactory or is not honoured by observance in practice. I speak with deference to the noble and learned Lord the Lord Chief Justice. Subject to what he may say, the extant law is, in my opinion, satisfactory and it is honoured in practice.
One comes to the pivotal point, which is relevancy. Apparently, the noble Lords, Lord Williams of Mostyn and Lord Lester of Herne Hill, and all the civil liberties paraphernalia, take the view that the attitude to sexual relationships has no relevance whatever and therefore should not be before the jury. I take the totally opposite view, which has been expressed by the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Mallalieu, and wholly accords with my experience, although it was some years ago and before the 1976 Act.
It is a question of degree. There is a strong onus on anyone who wishes to change the existing law because, according to the views that have been expressed by those who have considerable experience in this sphere since the 1976 Act, these matters are relevant to the consideration of the jury. What one is doing is to deprive the jury of relevant considerations and I believe that to be wholly unacceptable.
Lord Thomas of Gresford: My noble friend Lord Lester of Herne Hill freely admits that he has no experience of rape cases. With respect to him, he operates on the higher plane of human rights. When he referred to the tape-shield provisions which have developed in other jurisdictions under their Bills or Charters of Rights, he overlooked the fact that the expression he used—the balancing of justice to the accused and fairness to and protection of the complainant—was used by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, in the case of Fenlon in 1980 when he said in terms that in deciding whether to allow cross-examination under Section 2(2) of the Act,
"the court must balance justice to the accused and fairness to and protection of the complainant".
That balancing act, to be performed by the judge, is part of our criminal law, whether or not there is a Bill or Charter of Rights in existence.
My noble friend referred also to the guidance given by the Court of Appeal. That guidance has been on the interpretation of Section 2(2) of the Sexual Offences (Amendment) Act: 1976 which, as the noble and learned Lord, Lord Ackner. pointed out, reads as follows
"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 a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
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That provision was considered in the case of Lawrence which was reported in the [1977] Criminal Law Report 492, a decision of Mr. Justice May who said
"The important part of the statute which I think needs construction are the words 'if and only if he [the judge] is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked'. And, in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would he unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, allowed, might reasonably lead the j an', properly directed in the summing up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed".
That approach was approved by the Court of Appeal in the case of Viola in which the noble and learned Lord, Lord Lane, said
"The first question whim the judge must ask himself is whether the questions proposed are relevant according to the ordinary common-law rules of evidence, and relevant to the case as it is being put. If they are not so relevant, that is the end of the matter … If the questions are relevant, whether they should be allowed or not depends on the terms of s.2, which limits the admissibility of relevant evidence … It is for the judge to apply the dictum of May J in Lawrence … to the particular facts of the case".
The noble and learned Lord, Lord Lane, went on to say
"The 1976 Act was aimed primarily at protecting complainants from cross-examination as to credit, from questions which went merely to credit and no more. The result is that, generally speaking, if the proposed questions merely seek to establish that the complainant has had sexual experience with other men to whom she was not married, so as to suggest for that reason she ought not to be believed under oath, the judge will exclude the evidence. On the other hand, if the questions are relevant to an issue in the trial in the light of the way the case is being defended, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude such a relevant question will usually mean that the jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant".
Lord Lester of Herne Hill: Does my noble friend agree or disagree with the conclusion reached by Professor Temkin in her study of all those cases in the Criminal Law Review, to which I have referred, where she concludes that the willingness of the Court of Appeal to see a wide range of evidence as of relevance to consent means that trial judges who refuse to allow in sexual history evidence do so at some considerable risk of a quashed conviction on appeal?
Lord Thomas of Gresford: If the Court of Appeal quashes the conviction, it seems to me that justice has been done. My experience is—as is that of the noble Baroness, Lady Mallalieu—that it is extremely difficult for such questions to be put. Before they can be put, the Court of Appeal also gives this guidance that
"No application for leave to cross-examine … can properly be made unless defence counsel has instructions which provide reasonable grounds for making the assertion he wishes to make".
Therefore, the first safeguard is that counsel must have instructions with reasonable grounds.
The second safeguard is in the rules of the Bar which state that counsel,

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"must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or some other person",
and further that,
"It is a responsibility of a barrister, especially when the witness is nervous, vulnerable and apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar procedures are put as much at ease as possible".
Therefore, upon defending counsel, there are professional requirements which he must obey as well as requirements and guidance laid down by the Court of Appeal.
I turn to the provisions set out in Clause 40. My first comment—and I shall make a number of separate comments—is in relation to subsection (2)(b),
"that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case".
The test of whether the conviction or conclusion is unsafe is that which applies to the Court of Appeal. In my view, it is wrong to introduce the concept of whether something is rendered unsafe into the discretion of the trial judge. The phrase that has been used in the existing legislation and expanded upon by the Court of Appeal that the judge must consider whether there is unfairness to the accused is a far better test.
My second comment is in relation to subsection (3)(a) and (b). It would seem that it is possible in the discretion of the judge for questions to be asked about the sexual history of the complainant if the issue is not an issue of consent; that is, if the issue is a belief in consent. It seems to me that there is a contradiction here because in almost every case where the defence is one of consent, there will be an additional defence that, even if the complainant did not consent, the defendant reasonably believed that she did consent. The two defences almost invariably run together. Indeed, I cannot imagine a situation where they could not run together.
In that eventuality, it would seem that under subsection (3)(a), the previous sexual history of the complainant, provided that it is relevant, can, with the leave of the judge, be explored in that particular case. There are other criticisms which I have to make of this particular clause, but I have already gone on for far too long and I shall leave it to others.
Lord Desai: I am not a lawyer. I am the first non-lawyer to speak on this question. Having heard many lawyers, I am somewhat confused as to what is the issue, so I shall start by stating what I believe should be the case.
As far as I understand it, the status quo, as it is, is not satisfactory but the clause makes the case worse rather than better. That is my understanding. I believe that in a case of rape, the sexual history of the woman should be totally irrelevant and should not be asked about. That is the first principle that I want to state.
Even the 24-hour rule should be admissible only if the other party is the defendant but not otherwise. So in relation to the case cited by my noble friend, even if the lady in question practised the balcony scene every night or every four hours, it should not concern the court.
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I read with great admiration a lot of literature which feminists write. I know that there is much dissatisfaction about the rape issue among women. There is dissatisfaction with the legislature that rape is somehow considered to be like other offences, whereas many believe—perhaps in an extreme way, but genuinely—that it is more akin to murder than not. And a murdered person's previous history is not relevant as to whether or not he was murdered.
I know that I am being extreme, but that is my role in life. I feel that at present I am inclined to side with the noble and learned Lord, Lord Ackner. He at least wants to preserve the status quo. In as much as Clause 40 does not go in the opposite direction of removing such discretion as the judge has, I have to live with that. But Clause 40 goes the wrong way. It asks the judge to admit evidence which should not be admitted and therefore I shall be inclined to support the noble and learned Lord, Lord Ackner.
6 p.m.
Baroness Thomas of Walliswood: The noble Lord, Lord Desai, has beaten me to the drum as the first non-lawyer to speak. But I am only the second woman to speak and want to say straight away that I am not a member of any extreme feminist group, though I am a member of several respectable ones. And I do not take everything that is said by some of them as the word that I have to follow.
I listened to the noble and learned Lord, Lord Ackner, with all the deference and interest with which I always listen to him. To begin with I felt that he made a lot of sense. But as an ordinary lay person, as he went on—particularly when he was supported by the noble Lord, Lord Campbell of Alloway—I gained the clear impression that the issue of consent could be adduced to some extent by introducing evidence of a complainant's past history. If that is so, one could never support a prostitute who claimed to have been raped, yet I am sure that prostitutes can be raped. We could never convict anybody who raped a promiscuous woman because that evidence would be against her character, yet I am sure that there are women who have a number of sexual partners and who can be raped. Finally, it would be extremely difficult to convict a husband of raping his wife, yet husbands can and do rape their wives.
For those reasons, unless I hear something dramatic and convincing from the noble and learned Lord the Lord Chief Justice, if he intends to speak, I support the line taken by my noble friend Lord Lester of Herne Hill.
Baroness Ludford: I may as well venture where my noble friend Lady Thomas does not dare to tread. As a qualified barrister but one who has never practised I do not profess to possess the knowledge of some of my noble friends.
I listened with interest to the debate between my noble friends Lord Thomas of Gresford and Lord Lester of Herne Hill. I start from the point of view that the status quo is not satisfactory. I was concerned by something said by my noble friend Lord Thomas. He

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said that the existing test is that the judge has to decide whether it would be unfair to the defendant not to allow the evidence of previous sexual history. He quoted from the case of Lawrence in 1977 which had been interpreted as meaning that if the evidence was admitted it would lead the jury to take a different view.
That seems to me to meet the analogy drawn by my noble friend Lord Lester of Herne Hill, where the point of excluding the previous convictions of a defendant is precisely to avoid a situation where the jury is likely to be prejudiced and draw the semi-automatic conclusion that, because the defendant committed every other burglary in the street, he must have committed this one.
Lord Thomas of Gresford: I am sure my noble friend will recall that witnesses can be cross-examined as to their convictions in any case, and a complainant is a witness.
Baroness Ludford: Notwithstanding that, my point stands. I believe that some tightening up of the existing status quo is necessary. Perhaps I may make a further small point. The position of Women Against Rape was alluded to earlier by the noble Baroness, Lady Mallalieu. I understand that that organisation takes the view that evidence of previous sexual history with anyone other than the defendant should not be admitted. My noble friend Lord Lester also referred to that and said that it goes too far. I can appreciate that. However, I shall listen with interest Ca the Minister's reply.
It seems to me that greater care will need to be taken with evidence of previous sexual history with partners other than the defendant, particularly if the issue is one of consent. It is surely in that area that the problem lies; that is, the risk that the evidence that the complainant is promiscuous may somehow lead to the conclusion that she must have consented also on that occasion. Her previous history with the accused is surely more relevant—or that may be argued—than her previous history with people other than the accused. I shall listen with interest to see how the debate on this point develops.
Lord Warner: I had not intended to speak, but having listened to the debate on Clause 40 one cannot help but think that this sounds more like a debate in a legal club as to whether or not it should have its discretion fettered arid not whether it is more reasonable to balance better the rights of defendants and complainants.
Members of this Committee from time to time will have encountered the Government's interest in evidence-based practice. I have heard no one this afternoon respond to the points raised by the noble Lord, Lord Lester, in relation to research evidence on the extent to which people are putting into practice the Court of Appeal's guidance. On the strongly argued research evidence I feel that we should review the present situation and not adhere to the status quo.
Most lay people observing this territory have a strong perception that it is often open season in rape cases for lawyers to blacken the reputation of women in the hope that that will advance the cause of their client's defence.
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I share the concern of tie noble Lord, Lord Lester, that we perpetuate that myth of the unchaste woman as evidence that consent was given in those cases.
I am sure that Members of the Committee who practise law consider in the cases with which they deal that the system works extremely well. But that is not the perception of the outside world. Clause 40 does not do anything to seriously reduce the rights of defendants in these cases; it simply narrows the discretion of the court and rebalances matters between the defendant and the complainant.
During the course of the debate I heard a number of what seemed to me to be slightly offside remarks in relation to civil liberties and human rights. But it is worth bearing in mind that we have now passed legislation in this country whereby we require Ministers to sign on the face of the Bill a certificate to indicate that the legislation conforms with the European Convention on Human Rights. I suggest that we stick to Clause 40 as it stands rather than trying to revert to the status quo.
Lord Milverton: I shall wait to hear what the Minister says on this difficult matter. I think that perhaps there is more readiness than not to accept what some women maintain; namely, that they have been raped. Often one reads of cases in the press in which it appears that women are not always taken seriously. It is suggested sometimes that perhaps they have encouraged the offence. However, I believe that there are occasions when a woman "has been done", to put it crudely, against her will. I like to believe that a great many women are decent and do not just say, "Here I am." At the same time, I think that perhaps we men are partly responsible. That goes back not just to Christian beliefs, but to other beliefs which uphold the dignity of a human body and of life. I shall be interested therefore to hear what the Minister says.
Perhaps some women may behave in the opposite way, equivalent to a man. However, I do not believe that the status quo is appropriate. Somehow, justice is needed for the many women who are clearly "done" against their will, but justice also needs to be done for men who may have been forced against their will. However, on the whole, I think that we men have a lot to answer for in the way in which some women are treated as regards rape.
6.15 p.m.
Lord Bingham of Cornhill: I too had not intended to speak but various Members of the Committee have tempted me to do so. Perhaps I make take a specific example which may be stigmatised as far fetched, but I think it makes the point
Let us suppose that a defendant is charged with raping a complainant at 2 a.m. on New Year's Day. Let us suppose further that he is in a position to instruct counsel to ask these questions of the complainant: "Did you voluntarily have sexual relations with a different man, A, on Boxing Day? Did you voluntarily have sexual relations with a different man, B, on 27th December? Did you voluntarily have sexual

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relations with a third man, C, on 28th December? Did you voluntarily have sexual relations with another man, D, on 29th December?"
As I understand the Bill, if the defendant's defence is one of consent—not reasonable belief, but consent—none of those questions could be asked, even if it was known that the answer to all of them would be "Yes". The reason for not permitting those questions is not that they are irrelevant. I suggest that no rational person would think that those questions were irrelevant. I also suggest that a reasonable juror could think that they were probative. By "probative" I do not mean "conclusive". They do not mean that the complaint is false; they just mean that it is something that a reasonable person would want to take into account in considering the truth of the complaint made and the defence to it. If such questions were not capable of being regarded as relevant and probative, we would not see the 24-hour window before and after the alleged offence for which the Bill provides.
Therefore, these are relevant questions, potentially; they are probative questions, potentially, but, if I understand the Bill correctly, the judge is not to be given any discretion to allow them to be asked unless the issue is not consent, but reasonable belief.
I suggest that that is not good sense. That is not a recipe for the good administration of justice. Although the Minister took issue when I said this the other evening, I suggest that we must at all costs avoid miscarriages of justice in this area as in every other. I am sure that Members of the Committee do not need reminding that the penalty for conviction of rape is a very heavy one. The courts have been responsive to the outrage that all decent segments of society feel at the commission of what is rightly described as an act of violence as well as of gross sexual violation. So let us not suppose that a count of rape is one that leads to no severe penalty; it leads to a very severe penalty indeed. That means that the need to ensure that somebody is truly guilty before he is convicted is ever stronger.
Some noble Lords have asked whether the law is now observed. The truth of the matter is that none of us really knows. Some of us have impressions, perhaps gained from the newspapers, one way; others have views, derived from research, the other way. I can contribute one piece of information for the Committee's consideration. When judges who try these cases attend, as they regularly do, the circuit level seminars on the conduct of these cases run by the Judicial Studies Board, the question that is always asked is whether the discretion is too lightly exercised in favour of the defence. The suggestion that it is greeted by the judges with a sense of outrage and disbelief. That confirms, I venture to suggest, what the noble Baroness, Lady Mallalieu, with her enormous day-to-day experience, told the Committee.
Perhaps I may draw attention to the extremely guarded terms in which our amendment, Amendment No. 125, is framed. It states that such questions and evidence are to be allowed,
"if and to the extent that the court considers such evidence or question to be necessary".
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It does not say "desirable" but "necessary"—the strongest word which could be used—and for what purpose,
"in the interests of justice"
which must be paramount,
"to ensure a fair trial of the accused".
I hope that the Minister will think carefully about the matter. I can see no good reason why any court should be deprived of a discretion as limited and closely circumscribed as that.
Lord Cope of Berkeley: Most of the amendments in this group, like the one outlined by the noble and learned Lord the Lord Chief Justice, provide, in different formulations, a sort of override in the interests of justice. That, after all, is what the court is for. The underlying question before us is whether we, in Parliament, can, in framing legislation of this sort, judge better what is in the interests of justice than can the court at the time.
I am another non-lawyer contributing to this discussion. I do not for one moment under-estimate the traumatic effect of rape cases on the victims. The Minister did hint slightly that I might have done so on an earlier occasion. He also poked fun at Question Time recently at those of us who previously served in another place. It is part of the noble Lord's charm that he cannot resist a dig in the ribs when the opportunity is available. In over 20 years as a Member of another place one learns a great deal about lawyers and justice. It is a very regular feature of a Member of Parliament's surgery on Saturday morning or Friday evening to hear people complaining about their treatment in the courts and the outcome of legal proceedings. Over the years I have had to do my best to comfort, as best one can, distraught women and their relatives who have been on the receiving end, as they saw it, of attacks by lawyers in such cases. Such experiences make Members of another place—and I include myself during the time I was there—believe that something must be done.
But that is not always a good guide to action. I say to the noble Lord, Lord Warner, that we should not legislate on a matter of this kind because of public perception. We should legislate in the interests of justice, which can be a different matter. I also know of a case in my former constituency where I am as convinced as I can be that a young man was wrongly convicted of rape with absolutely appalling consequences for him and his future life. So I take very seriously what the noble and learned Lord the Lord Chief Justice said about miscarriages of justice. The court's job is to get at the truth, which is obviously extremely difficult.
That brings me back to the basic question as to whether we in Parliament can better judge than the court at the time what is in the interests of justice. As expected, there has been discussion this evening about consent and belief in consent. There is a distinction in the Bill in the way in which that evidence may be treated. It is a question of whether it goes to consent by the women or belief in consent by the man in a case. In its consultative paper of 1995 the Law Commission proposed changes in the law as regards belief in consent

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being required. I see that it is the opinion of the Criminal Bar Association mat should the Law Commission's proposals become law it will significantly reduce the problem in the operation of subsection (2).
We understand that the Government are considering the views of the Law Commission on this matter and are likely to come forward before long with proposals. That affects very much the questions before us today. If the law on belief and consent in particular is to be altered, then maybe the proposed changes today should reflect that. It may be that they are not as necessary as they seem.
Another thought arising on the matter of consent and belief in consent is that sexual history is definitely relevant to a belief in consent. The defendant's knowledge of the complainant's sexual history is definitely relevant in many cases to his belief in consent and that will still be admissible. So even if we pass the Bill exactly as it stands there will still be a great deal of discussion in court about the sexual history of the complainant. I believe it was the noble Lord, Lord Thomas of Gresford, who said that the two issues of consent and belief in consent are deeply interwoven. In practically every case I believe that they are crucial to it. There are considerable difficulties in proceeding at this time with this amendment.
Amendment No. 117 goes particularly to the question of the 24-hour rule. It is an exceptionally crude device. One can envisage it leading to all kinds of awkward arguments about the exact time of day—or more likely the night—in which previous events took place. It is a question of whether something that happened the previous night is relevant or not to the woman's consent or the man's belief in that consent. That would only be admissible if the 24-hour rule were to apply. If the alleged rape was al 10 p.m. then something which the complainant did at 11 p.m. the previous evening would be admissible in court. But what she did at 9 p.m. would not be admissible in any circumstances. That does not appear to be a supportable proposition. No doubt the Minister will say that there is no magic about 24 hours and that one has to pick a time. I understand that. Quite obviously 12, 24 or 36 hours, or some other period of time, could have been chosen.
It is not the particular period of time that I complain of so much as the arbitrary nature of dropping on any fixed number of hours, whether 12, 24 or 36 hours. It seems to me that it chows that any fixed time test of this kind will not be satisfactory and will lead to all kinds of awkward arguments about the precise timing of other events relative to the time of the alleged offence.
These are difficult matters. Many of the legal profession, the judiciary and the public feel strongly about them. However, ultimately we have to try to make a judgment as to whether the courts should decide what evidence it is proper to bring out in the interests of justice rather than bowing to the clamour of those who have misunderstood proceedings as they take place at the moment. Clearly, complainants should be defended. But defendants have the right to have their interests override those of complainants as it is their freedom and they who are on trial. Therefore there remain great difficulties as regards the proposals in the clause.
6.30 p.m.
Lord Williams of Mostyn: The noble Lord, Lord Cope of Berkeley, identifies the interesting question of whether the courts decide or, as we contend, Parliament should set a firmer structure. At the end of the day many of the contributions of Members of the Committee come down to that. When Parliament reaches a conclusion on that, I do not believe that it will be bowing to clamour. It will be paying attention to what has been said by many people over a number of years, not least having regard to the research to which the noble Lord, Lord Lester of Herne Hill. alluded.
I start from a pretty simple proposition. A woman's body is her own. It is not a plaything. A women's consent is her own. I: is her property. I believe that historically the way in which we have tried rape cases in this country, if not denying both those propositions, we have certainly paid insufficient heed to them. I have the greatest regard for the noble and learned Lord the Lord Chief Justice and my noble friend Lady Mallalieu, and I do not say so on any cosmetic basis. However, I believe that they are wrong.
The noble and learned Lord said again and again that we must, at all costs, avoid miscarriages in this area. 1 did dissent from that on the last occasion, although I did not develop my dissent. Nevertheless, I shall do so this evening. In some jurisdictions it is not possible to convict of rape without the eye witness evidence of two male witnesses. If we want to go that way we will, at all costs, avoid miscarriages in the sense that the guilty will not be punished; but we will do no service to those who are legitimate, honest complainants. Therefore. with the greatest respect to the noble and learned Lord the Lord Chief Justice, I do not adopt his formulation.
The tone of the debate has been remarkably moderate. with different views being expressed, both conscientiously and honourably, because, as I readily concede, this is an extraordinarily difficult and sensitive, area. However, I should like to take up one point that was made. When the question was raised at sentencing seminars carried out by the Judicial Studies Board and a suggestion was made that judges exercised their discretion too inappropriately, the noble and learned Lord said that it was met with outrage and disbelief. I am prepared to accept that. The proposition that six men falsely accused of terrorist offences in Birmingham had been wrongly accused was met year upon year by the judiciary of this country with outrage and disbelief. Indeed, that was not the only occasion when our system determined that outrage and disbelief were necessarily the safest guides to the most just outcome.
These are exceptionally difficult matters. I take note of the point raised by the noble Lord, Lord Cope of Berkeley; namely, why specify 24 hours? I shall illustrate the reason for that by referring to some questions that were raised earlier. We are actually talking about sexual activity at or about the time of the alleged offence. I shall certainly consider whether or not we ought to have a better formulation. for example, something along the lines of, "at or about the same time". I shall say why we want a cut-off point which is not arbitrary and, in so doing, I take assistance from the

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examples given by the noble and learned Lord the Lord Chief Justice. If I recollect correctly, I believe that the noble and learned Lord referred to an allegation of rape on New Year's day and said that the claimant could be asked, "Did you have sexual intercourse on Boxing Day, December 29th?", and so on. He said that such questions would be relevant. However, would it equally be a relevant question to put to the complainant, "Did you have consensual sexual intercourse with a man 10 years ago?" Plainly the relevance would have diminished. It seems to me that it is perfectly sustainable to put "24 hours" or "at or about the time", even bearing in mind the arguments marshalled against us.
We have thought about this a good deal. I believe that there is a continuing mischief which needs remedying. We have looked at what was said in Speaking Up for Justice and in the responses that we received, and we believe that the law needs changing. We also believe that evidence or questioning about a complainant's sexual behaviour, whether with the accused or with anyone else, should only be admitted where it is truly relevant to an issue at trial. A refusal to admit or allow it might—and that is quite a low test—have the result of rendering unsafe a conclusion of the jury or the court on any such issue.
So far, we have travelled a path in agreement. However, we now part company essentially—or, very often, fundamentally—on the question of what issue is relevant at trial? It is worth remembering what the noble and learned Lord, Lord Ackner, rightly told us on a number of occasions. Essentially, the issues are: did intercourse take place between the complainant and the accused on the occasion in question? Did the complainant consent? Did the accused believe that the complainant consented?
Let us consider: "Did the complainant consent?" This means, "Did the complainant consent to sexual intercourse with this defendant?"—and not, as the proprietor of her own body, thoughts, life and choices, did she consent to sexual intercourse with others. I do not want to put this unnecessarily harshly, but there is sometimes a danger of thinking that women are wholly different from men in their capacity for choice. Moreover, because we were all brought up that way—that is, in a significantly male-dominated society—there is a danger of assuming that if a woman freely wishes to have sexual intercourse with A, then inevitably she must succumb to the desires of B, C, D, and so on. Not only is that wrong; it is fundamentally and deeply insulting.
I certainly undertake to think most carefully about what Members of the Committee have said. I am not entirely persuaded by everything. I do not have the perfect response to the Capulet syndrome which my noble friend put to me, but I certainly undertake to think about it. It is possible in very rare circumstances that such a defence might be mounted. I am bound to say that I know the deficiencies of that approach, but, as all lawyers are entitled to say, in all my years at the Bar and on the Bench I have never heard of a defence of that sort. But, obviously, my practice was too limited. There is a serious point behind what my noble friend
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would regard as perhaps an extreme example, although I put that in an amicable way. I shall certainly consider what she said with great care. I believe that my noble friend is really looking at striking similarity. I give way to the noble Lord.
Lord Thomas of Gresford: Before the Minister leaves that point, can he tell us, from all his years of practice, and so on, whether he knows or has heard of a case where the defence is, "I didn't believe she consented, but she did actually consent"? I cannot think of that situation ever conceivably arising. Unless it does arise, it seems to me that the provisions of subsection (3)(b) are otiose because a defendant can always say, "I reasonably believed that she consented". Therefore, under subsection (3)(a) he is entitled, if it is relevant and the judge gives leave, to go into the claimant's sexual history.
Lord Williams of Mostyn: I do not believe that subsection (3)(a) entitles an accused to go into the claimant's sexual history. If in fact his defence is, "I reasonably believed", then he has the protection which is given him, subject of course to the parliamentary structure—and I emphasise "subject to the parliamentary structure"—which is incorporated in the Bill. Indeed, we return to the point of principle of the noble Lord, Lord Cope, of whether it is to be left to a discretion which many believe has been inappropriately exercised—and I put that with due deference to the judiciary—or is it to be the subject of a parliamentary structure. That principle, as identified by the noble Lord, really puts most of the submissions and arguments that have been made, which I stress are all well-meaning and honestly held, into that context.
A particular question was raised as regards what the consequences of the legislation had been, subsequent to the report of Dame Rose Heilbron. A good deal of the evidence which the noble Lord identified—and I shall not weary Members of the Committee by repeating it—indicates that applications were made and granted beyond the scope of what Dame Heilbron anticipated. It is true that the Bar has rules, but they do not actually attend to this mischief. It is also true that the Court of Appeal may issue guidelines but, on the understanding that we have, they do not necessarily govern what judges actually do. We should bear in mind the fact that if the judge allows in material "wrongly and inappropriately" and there is an acquittal, there is no review in the Court of Appeal Criminal Division of what has happened; nor any prospect of challenging the judge's determination on admissibility.
My noble friend Lady Mallalieu further questioned why things are different in Scotland. As the noble Lord, Lord Lester, indicated, we considered carefully the legislation in Canada, New South Wales and Scotland. As I understand it, the wording of the Scottish legislation places little emphasis on relevance or probity value. The Scottish Office research in 1992 considered that the width of the interests of justice gateway meant that sexual behaviour evidence was admitted much more often than had been intended. Some practitioners who were questioned said that the inclusion of a gateway

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made the legislation "a waste of time". On various occasions examples have been given about what might or might not be admissible.
Lord Lester of Herne Hill: Before the Minister leaves the subject of research and professional standards, is he aware of Professor Temkin's in-depth study involving interviews with a small sample of senior criminal practitioners at the Bar? Her interviews with experienced advocates who had appeared both for the defence and for the accused indicated that—the study comprised male and female barristers, including male banisters "of a certain age"
"The facts were regarded as of relatively minor significance, the main task being, as one barrister put it, 'to undermine the woman's personality'".
Professor Temkin states that,
"One eminent QC said he always applied to the judge to admit the woman's past sexy al history because 'if a woman could be depicted as a slut' juries were disinclined to convict".
Is the Minister aware of that in-depth study?
6.45 p.m.
Lord Williams of Mostyn: One knows of a number of mischiefs that follow from that. First of all, often material is not deployed to the issues which matter; namely, did intercourse occur, was there consent, was there a belief in consent? The material is really used—I think I detected an echo of this earlier this evening—to attack credibility. I submit that the true analysis of a woman who says, "I was raped" should not allow the fact that she has consented with her own body to sexual intercourse with another person on a different occasion. As regards credibility, I do not think it is legitimate to use that information.
The noble Lord, Lord Thomas, intervened when the noble Baroness, Lady Ludford, made a point about previous convictions. However, witnesses can be cross-examined about previous convictions if they affect credibility; in other words, if they are convictions of dishonesty. As far as I am aware, having voluntary sexual intercourse with someone on an earlier occasion does not necessarily involve any allegation of dishonesty, at least not on behalf of the consenting woman, although she may have been coaxed into it by something rather less than honest on the part of her then sexual partner.
These matters are extremely difficult. I do not think anyone who has been involved in a rape case as an advocate, a practitioner or a judge feels anything other than deep unease. That may be due to the nature of the charge and the nature of the evidence. However, we have come to the conclusion that we need to establish a parliamentary structure in this regard. I believe that we have it right. I do not dismiss any proposition put forward this evening. I give the undertaking that we shall consider the matter most carefully. However, I cannot give any guarantee that we shall reach a different conclusion.
My noble friend Lady Mallalieu said that Amendment No. 125 is a modest amendment. I have previous convictions in this regard because when I was in
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opposition every amendment I put forward was always described as extremely modest. However, I do not believe this measure is all that modest; in fact, it is extremely wide. Amendment No. 125 states,
"Notwithstanding the other provisions of this section, the court may … give leave for any evidence to be adduced or'"—
I add the word "any" at this point"—
"question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused".
That is not modest a: all. It is an extremely wide discretion.
I understand that the noble Baroness and the noble and learned Lord the Lord Chief Justice may say that they intend the measure to provide a wide discretion. I revert to the point at which we began. A large number of complainants will either not complain or, having complained, will not go to court if they know—they have to be told about this by the police officer or the CPS if they ask this question—that they will be asked about the whole of their past sexual history. That is not relevant to any issue and will do nothing apart from demean someone not as a witness of truth and honesty but just because that person has exercised sexual choices in her own way. As 1 read the amendment, it is an extremely wide provision. I could, of course, be wrong in my construction of it.
I hope that I have dealt with the main themes here. I do not apologise for repeating the fact that I think the noble Lord, Lord Cope, identified the position correctly. Is this to be a matter for the courts' discretion or for parliamentary structure? We think that this is a matter for parliamentary structure on the face of the Bill. I recognise that other people may honourably disagree with that. I undertake yet again to think carefully about what has been proposed. However, I do not think that we shall deviate from: he principled approach that vie have adopted, even if the Committee thinks that that principle is ill-founded.
Lord Ackner: I shall be brief. The Minister has said that this is a difficult matter. It has also been said that the courts have not given the kind of guidance that would be helpful. In my respectful submission, they have. In the case of Viola in 1983 the Lord Chief Justice said,
"Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the ease. Conversely, the relevance of the evidence to an issue in the case may be so slight as to lead the Judge to the conclusion that he is far from satisfied that the exclusion of the evidence or the question from the consideration of the jury would be unfair to the defendant".
The Court of Appeal in. the Brown case—the judgment being given by Lord Justice May—having cited what I have just read out, continued to put the matter as shortly as the following,
"The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could he material upon which in these days a jury could reasonably rely to conclude that the

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complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary. It is in every case a question of degree".
I respectfully submit the matter could not have been put more succinctly and more clearly. To have instead of those words of wisdom this complex section seems to me to invite problems, not to solve them.
I respectfully submit that the Minister is not quite right when he says that if the judge gives too favourable an approach and it results in an acquittal, nothing can be done. I do not think the Home Secretary's reference procedure has been abolished. The Home Secretary could go to the Court of Appeal and invite a ruling as to whether in principle the approach by a learned judge was right or wrong.
Obviously I would not seek to put my amendment to the vote at this stage, but I—and others, no doubt—will be concerned about focusing on the right answer so that it can be dealt with on Report. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 114:
Page 28, line 24, after ("(5)") insert ("or (5A)").
The noble Lord said: With this amendment and those grouped with it, we move from the great issues of principle, which have been of interest to the Committee over the past hour and a half, to matters of much smaller detail.
Amendment No. 114 and Amendment No. 122, grouped with it, are addressed to the defence that someone else committed the rape, attack or sexual offence in question rather than the defendant. We have not discussed this possible defence, but obviously it arises in some cases. The amendment is intended to preserve the admissibility of evidence which may be relevant to that defence.
The other three amendments—Amendments Nos. 119 to 121—seek to adjust the wording of the clause to deal with the situation where there is more than one defendant. This also is a practicality which arises in the courts. It did not seem to me or, to be more accurate, to my noble and learned friend whose name appears also on the amendments, that that had been adequately dealt with in the wording of the clause. I beg to move.
Lord Williams of Mostyn: As to this group of amendments—Amendments Nos. 114 and 119 to 122—Clause 40(3) already allows the courts to give leave for sexual behaviour evidence to be introduced in relation to the issue of whether the offence was committed by the defendant or another person. At present, the court will have to consider several criteria before giving permission under subsection (3). It will have to consider whether the evidence or questions relate to a specific instance or instances of behaviour, whether their absence might lead to a conclusion on a relevant issue being unsafe, and whether the real reason for asking for the evidence or questions to be admitted is to impugn the complainant's credibility rather than any relevance
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to an issue in the case. Amendments Nos. 114 and 122 would not require the court to consider those last two criteria. We think that it is important that it should.
The amendment suggests that one defendant could play off another in introducing evidence or questions about the complainant's previous sexual behaviour. We do not think that that is appropriate. The provision in subsection (5) is intended to allow a defendant to rebut evidence introduced by the prosecution against him. The prosecution's ability to put forward evidence about the sexual history of the complainant is unfettered; it is only fair to the defendant therefore to allow him to introduce evidence or questioning on the grounds of rebuttal, if the court so agrees. Any defendant wishing to introduce sexual behaviour evidence would have to apply to the court for leave. If the court gave leave to one defendant under subsection (3), it could theoretically give leave to another who wished to introduce evidence which suggested something different if it was relevant to his case. That is theoretically possible, but it is perhaps difficult to conceive in practice.
The defendant should be able, in the interests of justice, to rebut evidence that the prosecution has introduced with the aim of showing that he committed the crime; there is no need for him to be able to rebut his co-defendant's evidence. The defendant does not need to prove or disprove anything that his co-defendant has said.
An unintended effect of these amendments would be that, in giving leave under the suggested new subsection (5A), the courts would not have to consider whether the question or evidence was intended to impugn the complainant's credibility or whether, as I said earlier, it related to a specific instance or instances of behaviour. For the reasons I spelled out earlier today, that cannot be right.
Lord Cope of Berkeley: The Minister has set out in some detail his response to these amendments. I shall need to consider what he has said. In the meantime, I beg leave to withdraw the amendment.
Amendments, by leave, withdrawn.
[Amendments Nos. 115 to 123 not moved.]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 124:
Page 29, line 5, at end insert—
("( ) Where evidence or questioning is or has been allowed or admitted in terms of this section, the court may at any time limit as it thinks fit the extent of the evidence or the questioning.").
The noble Lord said: As I think is clear, Amendment No. 124 seeks to provide a power for the courts to limit the evidence or a line of questioning if it appears to have gone beyond that anticipated at the time an application to pursue that line of questioning was made. It may be that the amendment is unnecessary because of some other clause, but it certainly seems to me necessary to have some restriction of this kind. The amendment would ensure that where the evidence develops in a manner which cannot have been foreseen by the court—

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and probably anyone else—at the time the original ruling was made, the court can restrict the impact of its ruling. I beg to move.
Viscount Brentford: I support the noble Lord on this amendment. I am sure that the noble and learned Lord, Lord Ackner, if he were in his place, would say that the judges already have this right. The amendment would strengthen the Bill and the hope given to the general public by the rest of this part of it. I would like to see something along these lines incorporated into the Bill.
Lord Williams of Mostyn: Clause 42(2) requires the court to set out the extent to which it is giving leave for evidence to be adduced or questions asked in this relevant area—where it is decided, of course, that leave should be given at all. We expect those limits to be tightly defined. When evidence is being presented or adduced, the court can step in at any time to ensure that the limits are adhered to. Obviously, if the questioning becomes irrelevant, abusive or humiliating, the court already has common law powers which the judge is obliged to exercise in the control of the trial.
This amendment suggests that, during the trial, the court should not feel bound by the limits set in response to the application for the admission of the evidence or the questions. Except on the bases of irrelevance, abuse or humiliation, it would not be appropriate for the court to overturn its earlier decision and limit the evidence or questions further or not so far as had been originally decided. That is what this amendment would allow. I do not think that that would help. It would he confusing and unfair to the defence having been given leave to conduct the case in a particular way, and to the complainant. I believe that the common law powers are sufficient.
Lord Cope of Berkeley: I am grateful to my noble friend Lord Brentford for his support. However, in the light of what the Minister has said, which I shall consider carefully, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125 not moved.]
Clause 40 agreed to.
Clause 41 [11Verpretation and application of section 401]:
[Amendment No. 126 not moved.]
Clause 41 agreed to.
Clause 42 agreed to.
Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:
7 p.m.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 126A:
Page 30, line 28, at end insert ("in public by the police in the course of their duties").
The noble Lord said: We now move on to a completely different part of the Bill dealing with
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reporting restrictions. I am sure it will be within your Lordships' knowledge that a great deal of concern has been expressed about these provisions by the newspapers, by the Guild of Editors and by others. The Government's idea, if I may summarise it. I hope not unfairly—is to extend the statutory prohibition on reporting alleged offences involving persons under 18 as witnesses or victims or, under Clause 44, if young people are involved as the accused.
The first difficulty about the clause to which attention has been drawn by editors and by the newspapers is the one to which Amendment No. 126A is addressed. It is that there is no definition of what constitutes an allegation for the purposes of this legislation. It seems to me that if anyone says, even in private, that an offence has been committed, that may be taken to be an allegation. It is indeed an allegation. But in some respects the restrictions, which are total, apply from that point on. There is no way in which editors or anyone else could know whether someone privately has made an allegation.
However, it is not as extreme as that in every case. It may be that some wild allegations have been made publicly—they may have been shouted out in the street or published in writing—which are totally unfounded and which no one would take seriously. That would still be a public allegation and would set in motion all the restrictions provided for by the clause. We need to know from the Minister what he thinks constitutes the making of an allegation. How are the media to know that an allegation has been made so that they can realise that the law should apply and that they are not allowed report the matter? It may be that a newspaper or an editor does not know of a specific allegation having been made but, nevertheless, might in those circumstances commit an offence by accident. Not knowing of the allegation, the newspaper or editor might publish some facts which go against what is permitted under Clause 43.
My amendment seeks to suggest one definition which might be appropriate as a trigger for the start of the restrictions on reporting. The amendment states that the allegation should be made,
"in public by the police in the course of their duties".
Once a police spokesman makes a public statement that an alleged offence has been committed—probably by persons unknown at that stage—the press would be placed officially on notice that this was an offence to which the clause should apply and not one which the press could report or report in any specific terms.
It may be that the Minister will not like the definition that I am suggesting in Amendment No. 126A. However, I do not think that no definition will do. If the Minister dislikes Amendment No. 126A I hope he wi11 suggest a better alternative. There must be some trigger so that all concerned, particularly the news media—television, radio and the newspapers—can know that allegations have been officially made and that the restrictions, which are intended, quite rightly-4 sympathise with them—to protect the identity of young

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people, have begun to bite. They are very strong prohibitions, as I shall seek to show in later amendments. I beg to move.
Lord Windlesham: Other than a brief mention at Second Reading by the Minister of State, there has been no discussion at all in the long hours we have spent in Committee on the Bill on the important matter of reporting restrictions. The intention of Clauses 43 and 44 is explained in the Explanatory Notes as being to clarify and extend the present statutory protection of certain witnesses and alleged child or juvenile offenders from being identified in the media. The present lacuna is addressed in Clause 43; that is, the time between the making of an allegation that an offence has been committed and the charging or the laying of the information before a magistrate. Clause 43 would eliminate that. It is highly desirable that the interests of potentially vulnerable children and young people are to be protected from potentially harmful media identification and the resulting publicity. So, in my opinion, this clause is welcome.
My noble friend Lord Cope has raised an important point. I suspect that, speaking as he has from the standpoint of newspaper editors, we shall end up on different sides of the argument on this matter. However, the question of what constitutes an allegation occurred to me as well. It is not clear at present, either in the Bill or in the Explanatory Notes, who makes the allegation. I have considerable doubts as to whether it should simply be the police. We must remember that some allegations made in the press, substantiated or otherwise, can be extremely damaging to young people who are accused of what may be a serious criminal offence, and to witnesses, because the Bill refers to, "those involved in criminal proceedings". It would therefore be helpful to hear from the Minister a definition as to what constitutes an allegation.
Viscount Brentford: I have a great deal of sympathy with this amendment. However, the problem that I have with the wording may be what the noble Lord, Lord Cope, hinted at; namely, that an allegation can often be made by the media long before the police have formulated it. I can imagine that the media will often be the first to report an offence being made. Therefore I wonder whether this amendment can work in practice. I therefore look forward to hearing the Minister's reply. Surely it is important that this point is clarified. At present it is obscure to the media and to other people.
Lord Monson: When the Minister replies, will he explain why a witness or potential witness aged 17 years and 11 months is said to be in need of the protection of Clause 43, while a witness aged, let us say, 18 years and one month is said not to be in need of that protection?
Lord Williams of Mostyn: There is always a cut-off point, whether it is driving at 30 mph as opposed to 30.2 mph, and 18 is normally regarded as the occasion
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of reaching adulthood in terms of ability to vote and similar activities. We think that is a sensible cut-off point. It is used in other legislation.
To summarise the position we have arrived at, the reason that "allegation" is included is that the provision follows the precedent of Section 1 of the Sexual Offences (Amendment) Act 1992. There has been no difficulty in practice in using the word "allegation". I entirely agree with the noble Lord, Lord Windlesham, that it should not be limited to the police and public. After all, there are many bodies which prosecute, or have charge of allegations, in the context of allegations against children—teachers and social workers, for instance; an allegation made to the press itself may also count.
On a small point, there is a defence for publishers, which includes the print media, in Clause 48(5). However, my fundamental response may be of assistance to the noble Lord, Lord Cope, in deciding whether or not he wishes to press this matter at all. I am very conscious of the fact that we need a free press, which ought to be able to report matters of public interest unless there are convincing reasons for not doing so. We adopted that approach in relation to the Human Rights Bill and produced a satisfactory outcome, and similarly in relation to what was then Clause 31 of the Data Protection Bill, again with a satisfactory outcome.
Representatives of the press and the broadcast media visited officials in the Home Office last week. I have undertaken to see them again on Wednesday to talk through all the issues that concern them. Some concerns may be wrongly based; some may be perfectly legitimate. Therefore I assure the Committee that I am genuinely approaching those discussions with an open mind. In the past, my dealings with the broadcast and print media, not least the Guild of Editors, have been helpful and productive. They have always approached matters in an open-minded way.
Having dealt with the point on allegations and the defence in Clause 48(5), for the remainder I should prefer to have discussions with the media representatives on Wednesday to see whether we cannot safeguard their legitimate interests as well as the interests that all Members of the Committee feel need to be safeguarded in the context of children.
Lord Cope of Berkeley: I am glad to hear that the Minister is approaching his forthcoming meeting with editors with an open mind. We were told that he would approach the whole Bill with an open mind. With due respect to him, that has not been frightfully apparent thus far in relation to some of the earlier clauses. However, in view of the forthcoming meeting and his remarks about the provisions of Amendment No. 126A, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Lord Windlesham Lord Windlesham moved Amendment No. 126AA:
Page 31, line 18. leave out subsection (6).
The noble Lord said: I shall speak also to Amendments Nos. 126E and 126F. It is fortuitous that the Minister of State is shortly to meet representatives of the Guild cf Editors and the broadcasting organisations
Lord Williams of Mostyn: I said I was meeting representatives of the media. I did not specifically include the Guild of Editors.
Lord Windlesham: The point that I was about to make regarding representatives of the media is unaltered. When the Minister meets those representatives, will he bear in mind that there is another, equally important public interest which must be balanced with the interests of a free press? It is to that that I wish to address my remarks.
Clauses 43 and 44, setting out the restrictions on reporting alleged offences and criminal proceedings involving persons tinder 18, give the court the discretion to allow publicity, or partial publicity, in relation to the identities and other details of defendants under 18 if they are satisfied that it is in the interests of justice—a phrase repeatedly used in the debates on previous amendments. These amendments seek to test that provision in the light of Britain's international obligations under the relevant conventions.
Leaving aside the European Convention on Human Rights—since the noble Lord, Lord Williams of Mostyn, has made a statement on the face of the Bill; or perhaps I should say on the cover to the Bill rather than in the contents—that in his view the provisions are compatible with the convention rights, that leaves us with three international conventions to which the Government of the United Kingdom is party.
The earliest is the International Covenant on Civil and Political Rights of 1966. The covenant required that,
"any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children".
Next came the United Nations Convention on the Rights of the Child in 1989. Article 40 required the privacy of children alleged as, or accused of, having infringed the penal law,
"to have his or her privacy fully respected at all stages of the proceedings".
More detailed were the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules) in 1985. Rule 8.1 states
"The juvenile's rights to privacy shall be respected at all stages in order to avoid ha-m being caused to her or him by undue publicity, or by the process of labelling".
Rule 8.2 states
"In principle, no in-ormation that may lead to the identification of a juvenile offender shall be published".
In the official commentary to the rules it was made clear that,
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"Young persons are particularly susceptible to stigmatisation. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young people as 'delinquent' or -criminal'".
Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case; for example, the names of young offenders alleged or convicted.
It is important to recall that the United Kingdom has accepted all those obligations. Her Majesty's Government were one of the first to sign and ratify the UN Convention on the Rights of the Chill Two more recent reports are also relevant. The report of the 10th session of the Committee on the Rights of the Child in 1995 said:
"The privacy of the child should be fully respected in all stages of proceedings, including in relation to criminal records and possible reporting by the media".
The report of the 11th session in 1996 states
"It is important that the media themselves do not abuse children. The integrity of the child should be protected in reporting about, for instance, involvement in criminal activities".
We should never underestimate the intensity of media pressure on the courts to lift reporting restrictions. There have been recent examples of high profile cases involving young people charged with offences. But none has been as vivid and poignant as the trial of the two boys, aged 10 at the time, for the murder of a much younger child, the victim being James Bulger. In situations of that kind, the interests of justice, to which we have so often referred in these debates, and the right to know, about which the noble Lord will hear much in his forthcoming meeting, pull in different directions.
So it is for that reason, which I have developed in the past few minutes, that I submit that additional protection for children and young persons, as contained in this part of the Bill, is welcome; it is needed and it should be drawn as tightly as possible. There should be no more than minimal exceptions to the doctrine of no publicity. If that is so, there will be a chance that the extreme pressures the other way may be resisted. I beg to move.
Lord Patten: My noble friend Lord Windlesham and I have known each other for too many years for him to take offence when I tell him that I dissent a little from the line he has taken on subsection (6). In all the years that I had the pleasure of representing him in another place, never a cross word passed between us when he was my constituent. I hope that no cross word will pass between us after this evening's debate.
It is critically important that in cases dealing with juveniles, where the public interest is clear, judges should have the opportunity to waive the total ban on publicity. Why do I say that? I say it because young people mature at a different rate. The noble Lord, Lord Williams of Mostyn, at the end of the last group of amendments, referred to children as being those under the age of 18. I believe that many 16 and 17 year-olds would take the attribution of being a child as an insult if they were called it at any stage.

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The noble Lord, Lord Monson, made an important point from the Cross Benches a few moments ago. He asked why we have a cut off at 18. What is the difference between someone aged 17 and 11 months and someone aged 18 and one month? The noble Lord put his finger on it; it is extremely difficult. If we are to stick with the age of 18—and I am in favour of 16 years of age, but I know there is no chance of that provision being introduced into the legislation—then when the public interest demands it the learned judge should have the opportunity to waive reporting restrictions. Then when someone of 16 or 17 is judged to be mature, and is not a child but has done something dreadful, it would be made public. It is often said at the moment that we cannot trust the judges. I believe that we can very much trust them when they have seen someone in the dock for a period. We can trust them to make up their own minds as to whether the boy or girl under 18 is nevertheless of such mature years and what they have done is so dreadful that it should be reported. That would demonstrate to the outside world the abhorrence of the judicial system.
Thus, I do not agree with my noble friend Lord Windlesham. It is the first time that I have ever dissented from him in public and I hope it is the last. Nor do I wish to cause the Minister any disquiet by telling him that he has my wholehearted support. If necessary, I shall even go through the Lobbies with him.
Lord Cope of Berkeley: I also hesitate to go against my noble friend Lord Windlesham. However, it seems to me to be right that Clause 43(6), which is referred to in the first of the amendments, should remain in the Bill. In this case, it is not dealing with a defendant, an alleged offender, it is dealing with a victim or witness, someone else involved in an offence. The offender may be of quite a different age. The provision is intended to protect people involved who are under 18.
Subsection (6) does not widen the provision a great deal, it only mentions "the interests of justice". That is the only criterion which the criminal court has to apply in deciding whether to dispense with the restrictions. It seems to me that the override should apply here.
The case for the later amendments dealing with offenders is slightly greater, but nevertheless I support the other two subsections remaining in the legislation.
The Earl of Mar and Kellie: I must caution the noble Lord, Lord Patten. His remarks were backward-looking, dealing with what someone had done. It would in no way help the rehabilitation and resettlement of the young person if he had had his or her name emblazoned across the newspapers. It would not be helpful for the future.
Lord Renton: Perhaps I may throw more light on the matter. I am puzzled by the effect of subsection (2) to which subsection (6) refers. My noble friend Lord Cope mentioned the result of the words "involved in the offence". Obviously it does not mean having committed or been alleged to have committed the offence, it refers to the victim or a witness. If it is any of the people,
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whether a person who has been acquitted, who has been a victim or who has been a witness, if it is right that they should be protected from publicity under the age of 18, why should it then be perfectly all right for the whole matter to be disclosed after they have reached the age of 18? That is what I find so puzzling about subsection (2). If it is puzzling in relation to subsection (2) it has a bearing upon the question whether or not subsection (6) should stand part of the Bill.
7.30 p.m.
Lord Williams of Mostyn: I deal first with Clause 44. This is in effect a continuation of Section 39(5)of the Children and Young Persons Act 1933. By virtue of the 1933 provisions restrictions on reporting that are imposed automatically in youth court proceedings can be removed if the court is satisfied that it should be done in the interests of justice. That is an important safeguard. I respectfully agree with the noble Lord, Lord Patten, that the safeguard must be there for the court to exercise the power. As the noble Lord, Lord Windlesham, pointed out, Clause 43 is an extension back to the point of allegation and is therefore capable of being, and in the generality is intended to be, a further protection for those who need it on the basis that he outlined.
The noble Lord, Lord Renton, is right to point out that the phrase is "involved in". It may well be appropriate for the police and media representatives to apply to the court for an order for restrictions to be lifted. I give an important example that is very much to the point these days. It would be very important in a case of alleged child abduction for the identity of the child involved to be made public. I do not want to trespass into particular cases that are before the courts at the moment. It is, however, generally recognised that there are cases in which publication is of enormous assistance to the child in question. To take just one example, it is very important that the media should have power to carry the details of a missing child if the court makes that order.
Obviously, one wants to bear in mind—Clause 43 makes this plain—the interests of the young, but it should not be an absolute prohibition. In some circumstances it is right that the public should know not simply about a defendant but about those who may have been victims. As an example one has in mind Dunblane. There may well be a genuine and proper public interest in the public knowing the details. I sympathise with the theme expounded by the noble Lord, Lord Windlesham, but I believe that this discretion should be retained in Clauses 43 and 44.
Lord Windlesham: This debate has been a healthy one. It has shown the independence that this Chamber can bring to bear in the scrutiny of legislation. Conservative Peers have shown that they can dissent just as vigorously as others, as demonstrated in such a spectacular way by the noble Lords, Thomas of Gresford and Lord Lester on the Liberal Democrat Benches and others who spoke on one side or other of the divide in relation to the previous amendments. Likewise, on the Government side the noble Baroness,

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Lady Mallalieu, did not by any means agree with the Minister's view. She argued her case very persuasively and forcefully.
There is no more to be said at this stage. I see the Government Chief Whip sitting in his place, no doubt attempting to conceal his glances at the clock. This issue has been thoroughly discussed. I am sure that the noble Lord, Lord Williams, will take to heart the point I made earlier that if he meets media representatives, which is an entirely proper and appropriate thing to do, he will recall that the United Kingdom has treaty obligations. It is very easy for those who negotiate on behalf of the Government to agree to treaty obligations. The Foreign Office and the Home Office have copies of them on their shelves. But I Jo not believe that treaty obligations are frequently at the, forefront of Ministers' minds when they receive delegations from special interests. But we have great confidence in the Minister. I beg leave to withdraw the amendment.
Amendment, by: leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 126B
Page 31, line 42, at end insert—
("( ) Nothing in this section shall impose any restriction on the police from publishing any information in the course of their duties, nor on the reporting of any such publication by the police.").
The noble Lord said: I beg to move Amendment No. 126B. The Minister has just referred to the way in which the police sometimes seek the assistance of the media in cases involving missing children and all kinds of other cases. He gave the impression that such matters could be readily reported. That is not the impression I gain from reading the Bill or studying what people have said about it. The noble Lord made particular reference to the Dunblane massacre. No doubt he was prompted to do so by the leader in today's Sun. Obviously the Minister does not read the Sun because he shakes his head. Nevertheless that matter was referred to in the leader this morning It was stated that restrictions would have made the reporting of the Dunblane massacre much more difficult.
This Bill is not intended to apply to Scotland but only to England, Wales and Northern Ireland and therefore the precise case is not as good as it may appear to be. It is, however, a very good example of what can happen.
If the Bill's provisions had been followed in their entirety the newspapers would not have been able to say anything about which school had been involved in the massacre. They could not have named the dead teachers because, at least locally, that would have given away the identity of the school. It would have introduced almost wartime restrictions. Can the Committee imagine the anguish that would have been caused if radio and television in that case had had to say in effect that a gunman had murdered children and teachers in a school somewhere in Scotland without being any more specific? The telephone lines would have melted all over Scotland and else where in attempts to identify the school. In that case the gunman killed himself at the same time and so the case never came to court. I do not see how restrictions on the reporting of the name "Dunblane" and a number of other matters connected with the case would ever have been lifted.
I am quite sure that there must be a way round the problem, but no British newspaper, television channel or radio station could have given any indication as to where the school was. We would soon have got to know about it because the foreign media would have reported it very promptly. With the Internet and all the rest of it the details would have been available in Britain extremely quickly, although they would have been provided under the counter and from overseas. A court might have been specially convened to permit publicity to be given to it, but it would have been no good the court saying that it was in the interests of justice that restrictions should be lifted, which is the test provided in the Bill, because no one was being tried. The man was already dead and everybody knew it. Therefore, justice would not be served by publishing the name of the school and the other particulars, and the situation would have been extremely difficult. There are other examples, at which the Minister hinted. I refer to the disappearance of children. In such a case no court is involved in the early stages. It is the police who are involved in organising the hunt for the missing child, and often the public are called upon to he 1p and look out for certain things. I became involved in a case of that kind in my constituency about two years ago.
I give another theoretical example. Let us suppose that one has a hit and run driver who injures a child outside a school. The police would be unable to reveal the child's name or the name of the school. No particulars could be given, not even those which might enable the offender to be caught. One might say that one could go to the court and argue that it was in be interests of justice to release particulars of what had happened. But to do so would involve considerable delay for the police and, if the offender were not identified and brought to court, the ban would last indefinitely.
Therefore the amendment seeks to permit the police in the course of their formal duties to make announcements which could be reported. I realise that the police rather than the courts would decide whether it is right that further details should be reported. However, I believe that they are the right people at the time of the allegations to do exactly that. The courts do not become involved until later when a charge is preferred against someone and the matter moves into a different gear and a slower gear in the interests of justice. However the police have sometimes to act quickly in the interests of identifying the offender.
I sympathise with the general aim underlying the clauses, but, as drafted, they involve a considerable amount of overkill. They need careful consideration. I am sure that the representatives of the media whom the noble Lord will meet later in the week will add further examples. However, those that I have given indicate some of the disadvantages of the wide drawing of the restrictions at present.
The Earl of Mar and Kellie: Perhaps I may draw the attention of the noble Lord, Lord Cope, to the fact that Chapter IV—Clauses 43 to 49—applies to Scotland. The clauses prevent Scottish newspapers from

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publishing such stories from England and Wales. That will be a new law. Previously the Scottish press were free to report on such matters.
Lord Cope of Berkeley: I am grateful to the noble Earl for pointing that out. While it applies to the newspapers in Scotland, an incident in Scotland such as Dunblane would not be covered by the restrictions.
7.45 p.m.
Lord Williams of Mostyn: The media have had concerns, some of which have been articulated by the noble Lord, Lord Cope of Berkeley. I believe that some of their fears may be based on a misunderstanding of what is intended. That is the reason that I wish to meet them, to see whether or not we can find common ground. I think that we should be able to do so.
I need say no more at present except that the amendments are defective. They assume that the only prosecuting authority is the police. Of course that is not so. Customs and Excise or the DSS come to mind immediately. It would give far too much discretion to the police. There is no difficulty in terms of speed because in Clause 43(8) we specifically cater for application to a single justice alone. That can be done very quickly.
Some of the questions have been based, I believe, on misapprehensions. The restrictions apply to juveniles involved in the offence; so one can name schools and headmasters but not the juveniles concerned. However, I believe that the press has a proper part to play. Its concerns should be carefully attended to. Equally, in answer to an earlier observation by the noble Lord, Lord Windlesham, if any pressure group or group with interests involving the child wishes to correspond or to meet with me, I have said constantly that the door is always open to anyone who has a point of view to express.
I repeat: I think that the press has fears that may be put to rest by explanation. I am more than happy to listen to them. First, the amendments are too narrowly drawn. Secondly, I hope to give some sensible indication to noble Lords at Report stage as to whether or not I have been able to come to agreement, and in what terms.
Lord Cope of Berkeley: We shall have the opportunity to return to these matters at a later stage. I accept that the intention underlying the clauses is good. My concern is with the details of the way in which it is applied, as I sought to make clear.
I realise that the amendment does not include all the prosecuting authorities. My recollection is that Customs and Excise does not have occasion frequently to deal with crimes dealing with juveniles, although it does sometimes. I had some responsibility for that body for a couple of years although not as regards prosecution.
It seemed to me that identifying a school was prohibited by Clause 43(5)(c). However, perhaps I misunderstood what the Minister said. I shall read carefully in the written record what he had to say. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 126C:
Page 31, line 42, at end insert—
("( ) Nothing in this section shall impose any restriction on the reporting of Parliamentary proceedings.").
The noble Lord said: When a particularly hideous crime is committed, a Statement is sometimes made in both Houses of Parliament. I hope that the Bill does not prevent the reporting of such parliamentary proceedings or, for that matter, lesser proceedings of that kind. I seek reassurance from the Minister. I beg to move.
Lord Renton: I believe that that assurance will be given easily to my noble friend. Indeed, having been in Parliament since 1945, first in one House and then the other, I have never heard of any restriction upon parliamentary proceedings—although during the war if Parliament so resolved there were such restrictions. I hope that I do not disagree with my noble friend but, if I do, I seek assurance from the earlier remark of my noble friend Lord Windlesham. He rightly referred to noble Lords' independence of opinion. That is very important. We put individual intellectual ability above party commitment. I hope that we always shall.
Lord Williams of Mostyn: The point identified by the noble Lord, Lord Cope, is whether the publication of the Official Report would be affected by Clause 43. That is governed by privilege and precedent. Words spoken by Members of both Houses have absolute privilege by virtue of Article 9 of the Bill of Rights. The verbatim report of those words published in the Official Report attracts absolute privilege by virtue of Section 2 of the Parliamentary Papers Act 1840. Television and radio excerpts from Parliament have qualified privilege from prosecution by virtue of Section 3 of the Act; that is, if they can show that they have acted in good faith. So if there is an accurate, verbatim record of what was said in the course of parliamentary proceedings, and it is broadcast in good faith, the broadcaster enjoys immunity from criminal prosecution. We have no intention of altering the way in which proceedings of Parliament are reported. Restrictions on reporting which apply to other statutes do not have the protective caveats such as the one suggested by the noble Lord. I quite understand. He wished, I think, for the answer I have given.
Lord Cope of Berkeley: I am grateful for that reassurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 agreed to.
Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 126D:
Page 32, line 7, leave out from ("1933") to end of line 9.
The noble Lord said: In this otherwise perfect Bill, a gap has been found. We need to fill it in order to deal with Northern Ireland. Therefore, we have tabled

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technical amendments to extend Section 49 of the Children and You in Persons Act directly to Northern Ireland. I beg to move.
Lord Renton: I do not resist the amendments, but I am puzzled about one issue. The new proposed subsection (13) provides that for the reference to the age of 18 there is to be a reference to the age of 17. Does that mean that people in Northern Ireland mature a year sooner than others? The new proposed subsection (14) refers to a young person who has attained the age of 14 but is under the age of 17. That needs a little explanation.
Lord Williams of Mostyn: I know that with the noble Lord in the Chamber I should not have spoken so quickly. I will write to him giving those technical details. The answer has arrived in front of me, but it will not be sufficient for the noble Lord's purposes. It states that the new subsection is consistent with Northern Ireland legislation. I believe that the noble Lord is entitled to a better explanation. He shall have it by writing and I shall place a copy in the Library.
On Question, amendment agreed to.
Lord Windlesham Lord Windlesham had given notice of his intention to move Amendment No. 126E:
Page 32. line 15, leave out subsection (4).
The noble Lord said: My amendment has already been spoken to. Provided that there is no resiling from the additional protection which this part of the Bill affords to children and young people, witnesses, victims and defendants, I shall not move it.
[Amendment No. 126E not moved.]
[Amendment No. 126F not moved.]
Clause 44, as amended, agreed to.
Clauses 45 to 47 agreed to.
Schedule 2 [Reporting restrictions: miscellaneous amendments]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 126G:
Page 50. line 39, leave out ("or Northern Ireland") and insert—
("(13) In its application to Northern Ireland, this section has effect as if—

(a) in subsection (1) for the reference to the age of 18 there were substituted a reference to the age of 17;

(b)subsection (2)(c) and (d) were omitted;

(c)in subsection (4A)—

(i)in paragraph (d) for the reference to section 16(3) of the Criminal Justice Act 1982 there were substituted a reference to Article 50(3) of the Criminal Justice (Children) (Northern Ireland) Order 1998; and

(ii)in paragraph (e) for the references to a detention and training order and to section 76(6)(b) of the Crime and Disorder Act 1998 there were substituted references to a juvenile justice centre order and to Article 40(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998;

78

(d) in subsection (5) for references to a court (other than the reference in paragraph (b)) there were substituted references to a court or the Secretary of State;

(e) in subsection (7)—

(i)for the references to the Director of Public Prosecutions there were substituted references to the Director of Public Prosecutions for Northern Ireland; and

(ii)in paragraph (b) for the reference to any legal representative of the child or young person there were substituted a reference to any barrister or solicitor acting for the child or young person;

(f) subsections (8) and (10) were omitted; and

(g) in subsection (11)—

(i)the definition of "legal representative" were omitted; and

(ii)for the references to section 31(1) of the Criminal Justice Act 1991 there were substituted references to Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996.

(14) References in this section to a young person concerned in proceedings are, where the proceedings are in a court in Northern Ireland, to a person who has attained the age of 14 but is under the age of 17."").
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Clauses 48 and 50 agreed to.
Clause 51 [Determining competence of witnesses]:
Lord Swinfen Lord Swinfen moved Amendment No. 127:
Page 37, line 23, leave out ("calling") and insert ("opposing the competence of').
The noble Lord said: In moving Amendment No. 127, I shall speak also to Amendments Nos. 128 to 130. I apologise for the noble Lord, Lord Rix, whose name heads the list of those proposing the amendment. Unfortunately, he has 'peen called away. A3 drafted, this clause places a burden of proof upon the witnesses to prove their competence, which runs counter to the putative assumption of competence found in the previous clause. As a matter of principle, I believe that competence should be assumed unless there is good evidence to dispute that assumption, and to this end it should be for the party opposing the competence of the witness to satisfy the court that that is so. This, I am told, works perfectly well in the Canadian Evidence Act 1998, so Ministers may wish to consult it for guidance.
There are further issues regarding the practical implications of placing the burden of proof in the hands of the opposing party. Clearly, one would not wish disputes of competence to become a strategic tool, exploited by the party opposing the use of the vulnerable witness to the detriment of that witness. Notwithstanding these concerns, I would welcome clarification of the Home Office's position. Amendment No. 128 is consequential for grammatical reasons on Amendment No. 127.
Amendment No. 129 reiterates the point I made earlier in connection with Clause 51. An example has been drawn to my attention which highlights my concern over the way in which assumptions of competence to give sworn evidence are contested. A

79
young man with learning disabilities was a prosecution witness in an assault case. As a test of competence, he was asked whether he ever told lies. He reflected for a moment and said, "Yes, sometimes." This was capitalised on by the defence, who argued that he was, by his own admission, an unreliable witness. Asked afterwards what he meant, he said that he sometimes told lies when he was asked whether he liked a dress, or a speech, or somebody's friends. He said that he would always tell the truth about real things and he was regarded as extremely honest in his sheltered employment and his family life. He was, in effect, honest and able to communicate, yet his credibility as a reliable witness was challenged and upheld on the basis of inappropriate questioning.
I believe that two things are vital: first, that this clause is amended so that competence is assumed from the outset; and, secondly, that the rules of court are developed regarding the type of questions permitted to determine capacity to give evidence under oath. Amendment No. 130 is a consequential grammatical correction. I beg to move.
Lord Williams of Mostyn: This is a very important chapter in the Bill. Clause 50(1) states plainly
"At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence".
That is extremely important. We do not want competence and the ability to appreciate the significance of the oath investigated unnecessarily. Therefore, the issue will arise only if the court or a party to the proceedings has real doubts about the witness's abilities. After all, one of the purposes of the Bill is to enable witnesses to give evidence in court whose competence or ability to give sworn evidence might be in doubt under current arrangements, which have been seriously criticised.
In every case, the question of competence will arise only if the court or a party to the proceedings questions it. In every case, the decision is on the balance of probabilities. Only the court will be able to question the witness. That is because witnesses for whom the question arises are likely to be vulnerable and because competency and taking the oath are serious issues.
We believe that once a challenge is made it is only right that the party calling the witness should be the one to show the court why the witness should give evidence to the court or why that evidence should not be given unsworn. The court has to come to a conclusion on the balance that I indicated. The court needs to be satisfied about the competence of the witness. In order to do that, the court needs the assistance of the party calling the witness. That party, after all, is likely to know the witness best.
The determination about competence and therefore admissibility may well be made at the same time as the consideration of an application for a special measures direction since those special measures may be critical to the test of whether or not a witness understands questions and can give understandable answers.
We have thought about this matter quite carefully. I believe that the way we have drafted matters is correct
8 p.m.
Lord Swinfen: I listened to what the Minister said. I should like to read it and discuss it with my noble friend Lord Rix before the next stage of the Bill. I still have a feeling that we are on opposite sides of the fence on this matter and I wish to reserve my right to return to it.
Lord Williams of Mostyn: If at any stage either my officials or I can be of assistance, then we are only too willing to meet the noble Lord and the noble Lord, Lord Rix, at a time convenient for them. The noble Lord is right. We are probably opposed. However, I am more than happy to make that invitation.
Lord Swinfen: Invitations from the Minister are always very welcome. I shall convey the invitation to my noble friend Lord Rix and it may well be that it will be taken up. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128 not moved.]
Clause 51 agreed to.
Clause 52 [Determining whether witness to be sworn]:
[Amendments Nos. 129 and 130 not moved.]
Clause 52 agreed to.
Clauses 53 and 54 agreed to.
Clause 55 [Inferences from silence not permissible where no prior access to legal advice]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 131:
Page 39, line 15, after second ("to") insert (", and during, ").
The noble Lord said: I understand that Chapter VI arises out of the judgment of the European Court. This is a probing amendment. I shall be grateful if the Minister will indicate that the opportunity to consult a solicitor should continue during the period of questioning, charging or being informed and so on. I beg to move.
Lord Williams of Mostyn: I do not believe that this amendment would add anything of substance to the current safeguards contained in the Police and Criminal Evidence Act together with the existing codes of practice. Clause 55 provides that inferences from silence are not permissible where the accused has not been allowed an opportunity to consult a solicitor prior to interview at the police station.
The noble Lord may be concerned that a suspect, having been given the opportunity to consult a solicitor, may be denied further access to legal advice during interview at the police station.
Section 58 of the Police and Criminal Evidence Act 1984 makes it clear that, where a person has been arrested and held in custody and has been given the opportunity to obtain legal advice, he is entitled to contact a solicitor privately or at any time if he requests to do so.

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PACE Code C dealing with the detention, treatment and questioning of persons by police officers states that when a person has been permitted to consult a solicitor he must be allowed to be present while the suspect is interviewed. Once the interview has begun, the solicitor may be required to leave only if his conduct is so unprofessional that the interview cannot be conducted because of that behaviour. In those circumstances, the code provides also that the suspect should be allowed to consult another solicitor before the interview continues and that solicitor will be given the opportunity to be present at the interview. Therefore, I believe that I have given the noble Lord, Lord Thomas of Gresford, the assurance he seeks.
Lord Thomas of Gresford: I am grateful to the Minister for that assurance and clarification. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 132 and 133 not moved.]
Clause 55 agreed to.
Clauses 56 to 59 agreed to.
Clause 60 [General supplementary provisions]:
[Amendment No. 134 not moved.]
Clause 60 agreed to.
Clauses 61 and 62 agreed to.
Schedule 3 agreed to.
Schedule 4 [Repeals]:
[Amendment No. 135 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 136:
Page 60, line 47, column 3, leave out from ("Article") to end of line 50 and insert ("22'').
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
Schedule 5 agreed to.
Clause 63 [Short title, commencement and extent]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 137:
Page 42, line 38, after ("provisions;") insert—
("( ) the provisions of paragraph 6 of Schedule 5 and paragraph 1 of that Schedule so far as having effect for the purposes of those provisions;").
On Question, amendment agreed to.
Clause 63, as amended, agreed to.
House resumed: Bill reported with amendments.

European Communities (Definition of Treaties) (North-East Atlantic Fisheries Commission) Order 1999
8.7 p.m.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the d7aft order laid before the House on 11th January be approved [5th Report from the Joint Committee].
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Moved, That the draft order laid before the House on 11th January be approved [5th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

European Communities (Immunities and Privileges of the North-East Atlantic Fisheries Commission) Order 1999
Baroness Farrington of Ribbleton: My Lords, I beg to move that the draft order laid before the House on 11th January be approved [5th Report from the Joint Committee].
Moved, That the draft order laid before the House on I 1 th January be approved [5th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

Diplomatic Privileges (British Nationals) Order 1999
Baroness Farrington of Ribbleton: My Lords, I beg to move that the draft order laid before the House on 28th January be approved [7th Report from the Joint Committee]
Moved, That the draft order laid before the House on 28th January be approved [7th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.

Departments (Northern Ireland) Order 1999
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 28th January be approved.
The noble Lord said: My Lords, first, I welcome the noble Earl, Lord Attlee, on taking up the Northern Ireland portfolio on the Opposition Front Bench. I look forward to co-operation with him in the usual way.
The draft Departments (Northern Ireland) Order 1999 before the House today seeks to consolidate with amendment the law dealing with the administration of public services in Northern Ireland by government. departments.
It is the first in a series of pieces of legislation paving the way for the transfer of power to the Northern Ireland Assembly, following the Good Friday agreement, the referendum and the elections to the new Assembly last year. In that context, I fully understand the concerns surrounding the issue of decommissioning, an issue which we shall have ample opportunity to discuss on Wednesday, 16th February in this House.
One of the issues which the Secretary of State for Northern Ireland referred to the Assembly for consideration in July 1998 was agreement on the number of ministerial posts and the distribution of executive responsibilities between those posts.
The First Minister (Designate) and the Deputy First Minister (Designate) issued a statement on 18th December 1998 setting out their proposals for the structures of Northern Ireland departments and north-south implementation bodies and areas of co-operation. This order deals with that part of the statement which concerns departmental structures. As a result of the order there will be 10 departments plus the department of the First Minister and the Deputy First Minister. In accordance with that statement concerning departmental structures, the order provides for the establishment of five new Northern Ireland departments and renames three existing departments. The titles of the three other Northern Ireland departments remain unchanged.
I should perhaps clarify that the changes are to the Northern Ireland departments, not to the Northern Ireland Office. The Northern Ireland Office will remain under the direction of the Secretary of State for Northern Ireland whose responsibilities in relation to Northern Ireland will be greater post-devolution than those of the Secretaries of State for Scotland and Wales after devolution.
The order does not deal with the functions of the Northern Ireland departments. The redistribution of statutory functions across the new departmental structure will be effected by subordinate legislation through a transfer of functions order, the details of which are currently being settled. Although the transfer of functions order will not be considered in this House, there are a number of other pieces of legislation related to devolution for Northern Ireland which will be brought forward in coming weeks. These include an order to make consequential modifications of enactments, orders to commence various provisions of the Northern Ireland Act 1998 and an order setting the date on which power will be transferred to the Northern Ireland Assembly.
This order is therefore a further step along the road to a devolved administration for Northern Ireland. It frames in law the proposals on departmental structures set out in the statement made by the First and Deputy First Ministers (Designate) on 18th December last year. The proposals were contained in an interim report by the First and Deputy First Ministers (Designate) which was discussed and approved by the Northern Ireland Assembly on 18th January 1998. I believe that should be 18th December 1998. A final report will be brought to the Assembly on 15th February with a determination by the First and Deputy First Ministers (Designate) on ministerial offices.
Most of the provisions of the order are not new. The order is largely a consolidation of existing law. Unlike the situation in Scotland and Wales, there is already in Northern Ireland a constitutional framework for devolution. There thus exists a body of law dealing with the administration of public services by government departments spread over many years with numerous amendments. This order has provided the opportunity to consolidate and update the language of that body of law into one enactment. There are two elements which are not a consolidation—the provisions for the new
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departmental structures and an enabling provision dealing with junior Ministers. I should now like to summarise the main provisions of the order.
Articles 1 and 2 deal with the title, commencement and interpretation of the order. Commencement will be by an appointed day order. It is proposed that that will take effect from a date prior to the introduction of devolution to the Northern Ireland Assembly. Article 2 also deals with the exercise of departmental functions by junior Ministers. It enables junior Ministers to exercise functions under the order to the extent authorised by determination of the First Minister and Deputy First Minister under Section 19 of the Northern Ireland Act 1998. It is thus an enabling provision only.
Article 3 introduces the main changes to the existing law and provides for the new departmental structures. It provides for the new structures to comprise three existing departments: the Department of Education, the Department of the Environment and the Department of Finance and Personnel. It provides for the renaming of three departments: the Department of Agriculture would become the Department of Agriculture and Rural Development; the Department of Health and Social Services would become the Department of Health, Social Services and Public Safety; and the Department of Economic Development would become the Department of Enterprise, Trade and Investment.
The order also provides for the creation of five new departments. These would be the Department of Culture, Arts and Leisure; the Department of Higher and Further Education, Training and Employment; the Department for Regional Development; the Department for Social Development; and the Office of the First Minister and Deputy First Minister. As I stated earlier, the functions of departments will be addressed separately in a transfer of functions order which is currently being prepared.
Article 4 re-enacts existing provisions and in doing so enables the departmental Minister to distribute the functions of his or her department among its officers and provides for departmental functions to be exercised subject to the direction and control of its Minister.
Articles 5 to 7 also re-enact existing provisions. They give departments the status of corporate bodies, make provision for the use of official seals by departments and for documents issued by them and their Minister to be received in evidence as official documents. Article 8 transfers the existing powers of the Secretary of State to assign functions to or to transfer functions between Northern Ireland departments to the First Minister and Deputy First Minister acting jointly.
Normally an Order in Council is published for public consultation. This order has not been published. However, the changes it will introduce comply with those set out in the agreed statement of the First Minister and Deputy First Minister of 18th December 1998. Also, the order has been circulated to and considered by the First Minister (Designate), the Deputy First Minister (Designate) and the Northern Ireland Assembly party leaders.
The order forms part of the legislation to be put in place for devolution of powers to the Northern Ireland Assembly. It is the basis on which the 10 Northern

85
Ireland departmental Ministers will be appointed in accordance with agreements reached in Belfast on the night of 17th December 1998 and the number of departments proposed comes within the limits set out in the Northern Ireland Act 1998. I beg to move.
Moved, That the draft order laid before the House on 26th January be approved.—(Lord Dubs.)
Lord Blease: My Lords. I thank my noble friend the Minister for the detailed and informed way in which he introduced this important Northern Ireland order. Like many others in this House, over many years I have sought to apply my practical experience and reasoned opinion to Northern Ireland legislative measures. I consider this order to he most crucial and challenging, especially concerning the future for parliamentary democracy, community well-being and prosperity in Northern Ireland.
Some of the changes in the departments mentioned by my noble friend are extremely challenging and worth noting. The Department of Agriculture and Rural Development could not be better in my view. It is an important aspect of the Northern Ireland scene. Questions also arise from the range of functions under the Department of Environment and the Department of Higher and Further Education, Training and Employment. They are challenging changes and very relevant to present needs.
The Departments (Northern Ireland) Order is firmly based in the Belfast agreement. In today's issue of the Irish News, it is stated
"Speaking last night, Mr. Trimble rejected claims that his party wanted to 'park' the Good Friday agreement. 'I don't believe the process is deadlocked at all, ' he said. 'Seamus and I are working very hard to implement the agreement and our objective is to see that the agreement is implemented in full. We will, I am sure, achieve a position by early to mid-March of having everything ready for devolution to occur"
On the same page, the newspaper states
"Speaking from Brussels Deputy First Minister Seamus Mallon, who is on a mission with Mr. Trimble to secure European money for Northern Ireland, said: 'Let's see what happens. We have got the agreement in place. we have got, within the next week, the proposals for all of the institutions, then we move into the period of devolution. I am fairly confident that by the time that period comes we will be moving into a position where those in the European Commission and the Council of Ministers will be able to see that this is working'.
Even a brief perusal of the order indicates that it is a product of many hours of acute study and the application of practical experience and knowledge of many listed Acts of Parliament going back to 1921. These are set out in Schedules 2 and 3 of the order. It requires a tremendous historical span to cover the application of the practical changes which are necessary. We warmly acknowledge the careful and experienced application by the Secretary of State for Northern Ireland, the Northern Ireland Ministers, the advising staff, the Civil Service officials, and the parliamentary draftsmen who produced that challenging and important document.
I understand that arrangements have been made for a series of explanatory and consultative conferences dealing with the practical aspects of procedures and
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methods. I understand that those were made available to the elected Members of the Assembly and their assistants. It is important that they should have an opportunity to examine the devolved system, such as the proposed Assembly.
I ask my noble friend the Minister whether such arrangements were made and, if so, how many training, advisory, information and other seminars or events for Assembly Members have been organised or planned by the Northern Ireland Office. How many of the 108 Assembly Members indicated their intention to attend each scheduled event and how many stayed for the full duration of each named event? Were senior Civil Service officials, having direct experience of the Assembly's legislative processes and of drafting arid implementing Assembly business, included, to assist at and participate in such events?
It is important to ask that series of questions because there is quite a lot of talk about people not being involved in the arrangements. However, every effort has been made, and many hours have been spent, in trying to explain the new, devolved methods.
Perhaps I may refer to last Friday's published statement by the president of the Northern Ireland Chamber of Commerce. He told an audience, which included the First Minister designate, that the Northern Ireland Assembly will inherit an economy which i; at its lowest point in the economic cycle for a decade. He warned that some 40 per cent. of Northern Ireland's GDP, representing 45, 000 jobs, depended on the beleaguered textile and agri-business sectors and that there was every reason to fear for the short-term future of the economy.
He added that it is vital, therefore, that the Assembly Members and civil servants are able to take up the reins of government immediately and make a meaningful contribution to the future economic, educational and social well-being of Northern Ireland. It is important at this stage that those who are thinking of the well-being of their children, the aged, the sick and of all their neighbours in Northern Ireland should gel: down to the business of setting up the Assembly as quickly as possible.
Lord Glentoran: My Lords, when the Northern Ireland Bill left this House a few months ago, I think that it legislated for six departments, although it may have been six plus one. We now have 10 plus one. I simply do not believe that the most efficient way of running and governing 1.3 million people in six counties is by having 10 Ministers and all that follows in the form of bureaucracy and civil servants, however competent and willing. The noble Lord, Lord Blease, pointed out that the economy is not in a strong stag. I was sorry to see last night that it looks as though Mackies is finally going.
The Government started on a high-risk strategy, culminating in great success with the Good Friday agreement, and they deserve great credit for it. However, good strategists know that frequently the time comes for a change of direction. We have 10 departments plus one rather than six because Sinn

87
Fein had to have two places in the government. That is an example of the Government once again rolling over. I do not accept that that policy should continue. I am not saying that it was wrong at that time, but that is the way that it appears to the people, certainly in County Antrim.
We are on the brink. If by Good Friday 1999 we are not to lose all that was gained on Good Friday 1998, we need a change of direction and a serious hardening of the stance with regard not only to the republican movement as a whole, but to all terrorists. We are rapidly moving from a position where Northern Ireland was one of the safest parts of the United Kingdom in which to walk about, day or night, to the position where it will be among the most dangerous. I refer to the decrease in community policing and control of large areas of our cities. Now, that is permeating into the country and the villages. They are becoming unpoliced. We have drugs, intimidation and gang warfare. We have all the "nasties", well led and well controlled by those who know how to do it best.
Unless the Government change their view and policy and take a tougher line, by Easter 1999—I hope that it does not happen but I have always been cautious about the agreement—dear old Northern Ireland will have exchanged open terrorism, albeit tightly controlled by security forces, with the security forces well on top of the terrorists, for widespread crime. The Government will wish that they had brought a very good agreement to the table and signed it. They may lose the opportunity by releasing too much control. Policemen are no longer supported by soldiers in West Belfast. Indeed, some of the strongholds of the police force are being pulled down. I refer to some of the watch towers and observation towers. Those bad boys—I shall not call them "terrorists"; they are criminals—are starting to build and to move freely. I assure your Lordships that that is very dangerous. I hope that the Government will heed that. If not, they will not deliver what we all hope for, which is a well policed, well managed country as a result of the achievements on Good Friday 1998.
Lord Molyneaux of Killead: My Lords, I am delighted to have the privilege of following my noble friend Lord Glentoran. His remarks did not come as any surprise to me. He succeeded a father who played a very large role in stabilising Northern Ireland and establishing fair and equal government. The family, as a whole, have continued to play an indispensable part in guiding and advising those who do not always listen to common sense.
I suppose that the order may be regarded as a kind of enabling measure. Like my noble friend Lord Glentoran, I understand that six departments were regarded as reasonable, but the figure has now been upped to 10 plus one in an effort to provide jobs for the boys. It is good to see the Treasury, for a change, being so benevolent, provided that it is happy to finance that, and is equally happy to do so for that which is yet to come with regard to Scotland, Wales and eventually London, when it has "home rule". They too will add to the bargain.
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I used the word "enabling" earlier because this order will come into force and the structures operational only when much more fundamental developments are firmly in place. I notice that the Secretary of State and others have been expressing the hope over the weekend—and I hope that I do not misquote them—that the "two sides will compromise". Who precisely is expected to compromise? A year ago it might have been reasonable to suggest that unionists and republicans might compromise. I think that it can be taken from all that has already been said and from the knowledge that noble Lords have acquired that the unionists have compromised in the sense that the Government have made a long list of concessions at the expense of the majority population. But the Government have extracted no significant concessions whatsoever in return. There has been absolutely no balancing factor.
Decommissioning remains a crucial issue. The wise words of Mr. John Hume become more and more relevant by the day. He said some years ago on this topic,
"Political parties cannot be expected to sit down in government with men who have guns on the table; guns under the table; or guns outside the door".
The supreme importance of the issue is illustrated in a poll published in this evening's Belfast Telegraph which is generally recognised as Northern Ireland's number one newspaper. That poll shows that 84 per cent. of respondents to the poll want the IRA, UDA and UVF to decommission now. A surprising aspect of the poll is that of that 84 per cent., 80 per cent. were "yes" voters in the referendum.
Considering that we are often told by the Government that the "yes" voters provided supreme authority for the Good Friday agreement, the amnesty for murderers and every other dubious adventure, surely in the face of that expression of public opinion by a reputable body, the Government will not ignore this latest verdict of those "yes" voters who have sustained the Government's case for the past 10 months. As the noble Lord, Lord Glentoran, said, those voters are now beginning to have second, third and fourth thoughts.
But decommissioning will be much more difficult for the reasons which I provided to your Lordships on the 3rd September 1998 when we returned to the House for a one-day sitting. I said on that occasion,
"With regard to the proscribed list, the membership consists of terrorist groups who have identified themselves by claiming what they regard as achievements; namely, a murderous campaign".
They boasted about that. I went on to say,
"That is indiscriminate slaughter which puts the public in fear"
I come back to that phrase on this occasion. I continued:
"I mention fear. I am in fear because I am concerned by the existence of an unknown body to which almost 70 per cent. of the Provisional IRA's mechanisms and munitions have been quietly transferred since 24th July of this year. Those transfers"
as I said on that occasion on 3rd September
"continue as we deliberate here today".
The worrying thing is that,
"Despite all the efforts of the intelligence services throughout the entire British Isles, the structure of the new body has not been penetrated or identified, nor has the identity of its members or approximate locations, It does not appear to be its intention to

89
become involved and active until the early part of next year, by which time its striking. power may surpass anything that has gone before".-— I Official Report, 3/9/98; cols. 26 and 27.]
That was a reference to my contribution in your Lordships' House on 3rd September. The "striking power" was not to become evident until the early part of this year—in other words, during these current months of this year.
One Martin McGuinness, ignoring the fact that he has been presiding over the transfer of arms for all those six months since I illustrated the realities of the situation, now complains that some of his IRA arms have been "stolen", as if anyone would survive the customary discipline imposed on anyone who stole Mr. McGuinness's "toys" from any cupboard.
But those terrorist bodies which have transferred weapons and explosives, as the noble Lord, Lord Glentoran, said—he illustrated it very vividly as a man who knows exactly what he is talking about—have now increased their domination over their own people, not the people of other religions or political beliefs. They have succeeded to a point where there now exists a reign of terror which pats the Gestapo in the shade. The terrorists groups are no longer engaged in sectarian conflict. They are now challenging Parliament and the authority of this state, the United Kingdom.
I make this special plea to all present. Surely we, as an element in the state, have a bounden duty to rescue all those law-abiding citizens of the United Kingdom, whatever their political or religious views, from this ever-increasing reign of thuggery and tyranny.
8.30 p.m.
Lord Thomas of Gresford: My Lords, I would not presume to comment on the grave concerns that have been voiced tonight by the noble Lords, Lord Glentoran, and Lord Molyneaux. I was here on 3rd September and I heard the noble Lord, Lord Molyneaux, make the statement to which he referred. It was a chilling thought that he expressed at that time. It is of great distress to me that his optimum has not risen in the intervening period. Noble Lords who have spoken so far have long experience of the politics and pain of Northern Ireland which I cannot beg.. n to match.
We on the Liberal Democrat Benches are supportive of the process which led to the Good Friday agreement and beyond and which has now delivered the legislation which is before your Lordships' House. We have a few minor concerns but we shall be supporting the Government on this legislation.
Devolution is long overdue in Northern Ireland. The idea of devolution itself has been coloured by memories of failed models and troubled histories. It is particularly important that we make sure that devolution is established fairly and properly now. We hope that the order before the House this evening will do just that.
We hope that the departments envisaged by the legislation and set out by the Minister are what most people in Northern Ireland had in mind when they voted for the agreement last May. It may be that there have been increases in the number of departments and that that is done to accommodate varying interests in
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Northern Ireland. But as long as the momentum of the peace process can be kept moving forward, we hope that these departments wilt succeed. As a reflection of the expression of the popular will the order is acceptable. We are particularly glad that there has been consultation and co-operation in the construction of the new executive. There was perhaps a time when Westminster sought to impose new structures upon the reluctant people and politicians of Northern Ireland and when anything which was imposed was doomed to failure. But we believe that this order has genuine input from local people. That gives it a greater legitimacy, which will be needed as time goes on.
There are a number of specific issues about the proposed structures with which I should like: he Minister to deal. The Department of Agriculture is being renamed the Department of Agriculture and Rural Development. Of course, there is much more to rural areas than farming, as we know in Wales. We welcome this symbolic shift in the department's title, which recognises this fact. We hope that the new department will have new powers and responsibilities towards rural areas; indeed, such a change would be very welcome. I am sure that many people in the rural population of Northern Ireland who are not directly involved in agriculture would readily agree with that.
We note the absence of a department of equality. This is a significant concern for many, within both the Nationalist and the Republican communities. We would like to know whether there are assurances that there will be a junior Minister responsible for equality issues; working out of the Office of the First Minister and deputy First Minister.
My final point relates to tourism. There is no strategic view of tourism shown in the order. Tourism is potentially an economic lifeline to many of the hard-pressed parts of Northern Ireland. We believe that much can be done to create an alluring image of Ireland which, in the future, may give cause for optimism and dispel the more depressing opinions that many people may have about the Province. North/South co-operation on tourism could be very valuable. Tourism seems to come under the remit both of the Department of Enterprise, Trade and Investment and, so far as concerns visitor amenities, the Department of Culture, Arts arid Leisure. We hope that there will be some rationalisation of the functions which the order will transfer.
Having voiced those very minor criticisms, I reiterate that my party takes great pleasure in finding so few flaws in an order with such wide and substantial implications. Although, as I said, I pay the greatest respect to the views which have been expressed by those who know the Province so well, I hope that the order will help to bring inclusive and peaceful self government to Northern Ireland in the future.
8.45 p.m.
Earl Attlee: My Lords, I am grateful to the Minister for his explanation of the order and for the welcome that he extended to me in my new role. I am, of course, very honoured to be given this appointment and look forward to the challenges of my task and of doing business with

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the Minister in the manner he described. We do have a bi-partisan policy, but it is not a blank cheque. The Minister mentioned the transfer of functions order, but can he say when it will be ready and whether the difficulty is in its drafting or in securing the necessary agreement?
In his valuable contribution, my noble friend Lord Glentoran referred to the disadvantages inherent in having so many departments, as indeed did other speakers. I share his concern but, at the same time, I recognise that it may be necessary in order to have an executive and an Assembly that will he acceptable overall. The noble Lord, Lord Blease, made many interesting points which were thought provoking. I shall enjoy reading them carefully in tomorrow's Hansard.
However, at present, one Minister covers health, social security and education. This could be broken up into three or four departments, each with a Minister, so it will clearly not be as efficient an administration as we have at present. The noble Lord, Lord Molyneaux, referred to the Treasury impact. But it is not just a question of the cost: it is the speed and efficiency of decision making. The Minister may like to reflect upon how many Ministers will be doing his job after the executive is set up.
My noble friend Lord Glentoran touched upon the security situation and the noble Lord, Lord Molyneaux, raised the extremely important and sensitive issue of decommissioning and so called "punishment beatings". I believe that "mutilation assaults" would be a more accurate description. We will have a good opportunity to debate this issue next week at Starred Questions, and later that evening when we discuss the Northern Ireland decommissioning order. However, the Minister may like to check his diary, as I think he will find that the 16th is a Tuesday and not a Wednesday.
The noble Lord, Lord Molyneaux, also referred to the interesting statistics published in the Belfast Telegraph. I think that they well illustrate the desire for peace in the Province, rather than a return to violence and confrontation. The noble Lord, Lord Thomas of Gresford, referred to the popular will: let us hope that it will prevail. I share the concerns of the noble Lord, Lord Molyneaux, regarding the security situation and I will be exploring it in detail next week.
Can the Minister say what is expected to happen to the non-departmental public bodies? Are they likely to continue as before, or will their functions change? Members of your Lordships' House well know how members of those organisations will feel at the moment.
I am sure that the Minister is well aware of the downside of the size of the executive. On that basis, we are content with the order and look forward to a successful outcome of the peace process and the implementation of the Good Friday agreement.
Lord Dubs: My Lords, I am grateful to noble Lords who have taken part in the debate and for the support that the Government's proposals have earned here this evening. I shall deal specifically with the questions that were put to me by various noble Lords. My noble friend
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Lord Blease asked a number of questions. I believe he referred in particular to the training that was given to members of the Assembly in recent months since the elections. I think it was called "the transition programme". There have indeed been a series of information seminars and other events for Assembly members. I shall be very happy to write to my noble friend giving him fuller details. I can only add that, in a sense, some of those events are still continuing. I am proposing to have meetings with senior members of each party as regards some of the responsibilities of one of my present departments; namely, the Department of the Environment. So it is possible that more things are happening than will be encompassed in a direct answer to my noble friend's questions. However, I shall certainly do my best to give him the information.
My noble friend talked about the state of the Northern Ireland economy. I am not sure that I agree with the pessimism that characterised his remarks. Yes, there are certainly some difficulties. The situation as regards Mackies was a real blow. But, on the other hand, there are other more optimistic indicators. There is enormous international interest in investing in Northern Ireland. The Secretary of State, other Ministers, the First Minister and the Deputy First Minister went on what I believe was called the "11 city tour" of North America. There was much interest in the opportunities that Northern Ireland presents and we are receiving other expressions of interest from businessmen in many countries. If one looks at the actual straightforward economic indicators—for example. economic growth, a falling level of unemployment, and so on—I should have thought that the economy of Northern Ireland is, on the whole, doing pretty well and that political stability, together with the promise of peace, will encourage the economy to do even better.
The noble Lord, Lord Glentoran, questioned the efficiency of increasing the existing number of departments to 10, plus the new department of the First Minister and Deputy First Minister. None of that concerns this Government. Those were decisions made by the political parties in Northern Ireland who were elected to the Assembly. The decisions on the number of departments and the delineation of the departments were made in long talks in Parliament buildings which ended on 18th December. I do not think it is appropriate for the noble Lord to blame the Government, if blame is an appropriate word. These were decisions made by locally elected politicians of the various parties. Those were the conclusions they reached. We are giving effect to the decisions made by those politicians.
The noble Lord also suggested that we are in a dangerous period and there is a need for a change of direction. Certainly the Secretary of State has said that the coming few weeks will be difficult. There are problems, some of which were mentioned by the noble Lord, Lord Molyneaux. The Government do not minimise the difficulties that exist. On the other, hand the cease-fire still exists, even though some brutal acts are taking place. I believe someone mentioned punishment beatings, but I do not think that is the right term. However, as I said, we are satisfied that the cease-fire exists. I believe that the people of Northern

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Ireland are grateful for that, much as everyone deplores the beatings and other brutal activities that are still continuing. We are going through a difficult phase but we have to set cur sights on the enormous prize of giving full effect to the Good Friday agreement.
If I understood him correctly, the noble Lord also suggested that too many police stations were being closed down. We would not close a police station or an Army base unless that was the advice to the Government from the chief constable and the security forces. The chief constable has said on a number of occasions that he scales down the level of his requirements in terms of security consistent: with his assessment of the security situation. We are conscious of the need to make sure that we do not go too far in that direction but that our actions are guided by the best possible advice.
The noble Lord, Lord Molyneaux, in a somewhat pessimistic speech said that there had been too many concessions to republicans. I disagree. I do not think that is what the Government have been doing. Certainly the Good Friday agreement represented, as it were, the need for all parties to it to compromise and to make concessions. I do lot believe that the concessions have been all one way. The Government continue to endeavour to be as even-handed as possible between the various communities in Northern Ireland. That is not always easy to achieve, but we are set on doing that.
The noble Lord referred to this evening's Belfast Telegraph. Of course the vast majority of people want decommissioning to happen, as do the Government. We have said on countless occasions that it is not a matter of whether decommissioning happens, but when it is to happen. It is clear that there is pressure on the various paramilitary organisations to move towards decommissioning as quickly as possible. I share the noble Lord's concern about the various beatings and acts of bullying and intimidation that have occurred. Of course they are deplorable and of course they have no place in a civilised society. The Government have said repeatedly that they have to stop. Within recent days the Secretary of State has talked to the various political parties and has made clear her position of total opposition to those activities.
I thank the noble Lord, Lord Thomas of Gresford, for his party's support for the peace process and for the general thrust of what we are doing. He asked a specific question about agriculture. Agriculture is one of my responsibilities. I am clear that the rural development aspect of the work of the Department of Agriculture, as it is now called, is an important part of our work. Indeed I think it is widely recognised that this has been successful in helping some of the poor, rural communities to overcome at least some of the disadvantages from which they suffer. As the negotiations in Brussels proceed with Agenda 2000, which has a clear element of rural development, Brussels as a whole may well be more supportive of further work in rural development in all European Union countries. The change of name is not a matter of extra resources; it is a matter of making clear the responsibilities of that department; namely, agriculture and rural development.
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As regards the noble Lord's question about equality measures, it is for the First Minister and the Deputy First Minister to decide whether there is to be a junior Minister responsible for equality within the department of the First Minister and the Deputy First Minister, where responsibility for equality has been placed. It is not for the Government to determine how that is to be done; it is for the parties at the Assembly to decide.
The noble Lord also referred to tourism and its importance. Of course there has been agreement between the First Minister and the Deputy First Minister on tourism in terms of north-south co-operation. The Government think tourism is important and we wan: to do all we can to encourage it. However, north-south co-operation has been identified in the Good Friday agreement as an area of possible co-operation. The decision reached by the parties at Stormont, published on 18th January 1999, states,
"A publicly owned limited company will be established by Bord Failte and the Northern Ireland Tourist Board to provide the following services".
There follows a list of tourism services, the planning and development of tourism, the publication and dissemination of information in overseas markets, market research and so on. In so far as the parties have reached agreement, I think it is clear that they too share the noble Lord's concern about the importance of tourism and the need for it to be an area of co-operation.
The noble Earl, Lord Attlee, asked about the transfer of functions order. This is a detailed order which specifies which particular Act of Parliament will be within the responsibility of any of the new departments. It is a complex task. I have seen some of the draft lists of Acts of Parliament being related to the new departments. That work is taking place at the moment and the order should be ready later this month. I do not think it will reveal a great deal. It will show long lists of legislation for those who wish to study that in detail. There is no question of disagreement on it; it is simply a matter of doing the work thoroughly and having the list prepared.
The noble Earl also asked about non-departmental public bodies and their future. There is no change proposed in this legislation. It is for the parent department, the new Ministers and the Assembly to decide what the relationship with NDPBs will be. It is for them to decide whether any individual non-departmental public body should continue to exist or if its functions should be located elsewhere. As regards the order we are discussing, no change is intended. I again thank your Lordships for the comments made.
Lord Lyell: My Lords, before the Minister sits down, I apologise to him and the rest of my colleagues—my noble friends on this side of the House may be grateful that I was occupied by another event—that I was not able to take part in the debate. I hope that the Minister can give me the following information, if he has it available, or write to rr e about it. Am I right in thinking that the Department of Agriculture deals with all agricultural activities both in Europe and without: food production, forestry, fresh water and sea fisheries,

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equestrianism and horse-racing? Am I right that all these duties still come under the aegis of the Minister, and will that continue to be the case? Is anything different proposed in the order? I should indulge in a certain amount of gleeful laughter at the thought that some matters, particularly horse-racing, might be devolved to another department. Will the noble Lord write to me on that matter?
Lord Blease: My Lords, perhaps the noble Lord can deal with a further matter at the same time. Does the order in any way encompass anything to do with law and order or decommissioning in the future in Northern Ireland? If decommissioning has not come into any of these orders, is it not then a matter for the standing Northern Ireland government, even under the devolved system?
Lord Dubs: My Lords, this order does not deal with criminal justice, prisons, police or security. Decommissioning was not the specific responsibility of any department, so it does not fit with the noble Lord's
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question. Essentially, criminal justice and those other matters are reserved powers and will stay the responsibility of the Secretary of State.
As regards the question about agriculture, yes, the noble Lord is right in saying that food, agrifood development, science, veterinary matters, rural development, forestry, sea fisheries and so on all come within the new Department of Agriculture and Rural Development. Inland fisheries will go to the new Department of Culture, Arts and Leisure, although sea fisheries will stay with the Department of Agriculture and Rural Development.
As regards the responsibility for horse racing and related matters, I will write to the noble Lord. It was not totally clear quite where the responsibility lay; it has lain with more than one department up to now. I think I will be more accurate if I write to him.
May I conclude by thanking your Lordships for your contributions to the debate. I commend the order to the House.
On Question, Motion agreed to.
House adjourned at nine o'clock.