Lords Sitting of 2 March 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 Bristol.

Infectious Salmon Anaemia
Lord Mackie of Benshie Lord Mackie of Benshie asked Her Majesty's Government:
What steps they are taking to deal with the problems in the Scottish salmon farming industry caused by the spread of Infectious Salmon Anaemia.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, action is being taken on a number of fronts. The Government's basic aim is to eradicate this outbreak of ISA by effective controls to contain the virus, because that is in the best long-term interest of the industry and of the wild stocks. To limit the impact on jobs, attempts are being made to accelerate the availability of alternative sites consistent with proper consideration of environmental concerns. Finally, recognising the contribution that fish farming makes to remote rural areas, my right honourable friend the Secretary of State for Scotland announced on 8th February that the Government were prepared to provide up to £9 million over three years, on a matching pound for pound basis, towards any fund that the industry might establish collectively to aid individual farmers affected by ISA. Discussions with the industry about such a scheme continue.
Lord Mackie of Benshie: My Lords, as is customary, I thank the Minister for that reply; but I cannot think that it tackles the problem properly. It is extraordinary that the Government order people to destroy their stocks but refuse compensation. In the case of foot and mouth disease, where there is compulsory slaughter, full compensation is paid. Do the Government remember that, in the case of BSE, the Tory Government offered only half compensation for BSE cattle, with the undoubted result that many slipped through the net? Does the Minister agree that it is important that the whole of the industry, which is very important for the West, goes along with the government measures? Does he further agree that a scheme that asks the industry to provide pound for pound is not a sufficient response? Where do the Government think the outbreak came from?
Lord Sewel: My Lords, to deal with the noble Lord's last question, we are under an obligation and are working to ascertain the source of the outbreak. As yet, we are not in a position to announce definitive findings. I am aware that a number of interests wish to know the source when the information becomes available.
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There is no legal liability for the Government to pay compensation. There has been no previous case of any financial aid in cases of fish disease. We are making an exception in this case in recognition of the significant contribution that fish farming makes to the economies of remote areas in the Highlands and Islands of Scotland.
Lord Mason of Barnsley: My Lords, it is about a year since this outbreak took place. I gather that 10 fish farms are already infected and 15 are suspect. Is the Minister aware that it will be necessary at some point for him to reveal the origin of the disease and how it was transmitted? There is no doubt that Norway comes under the microscope. When the Minister addressed the House on 27th October, he said that,
"we are moving to a period in the year when we will soon know whether the virus and the disease have been contained".—[Official Report, 27/10/98; col. 1906.]
Is it now under control? Also, are wild salmon in danger from this virus?
Lord Sewel: My Lords, I shall be happy to reveal the origins of the virus when there is sufficient scientific evidence to support any finding. I can confirm that there are 10 confirmed sites and 15 suspected sites. Scotland has some 300 fish farms. It is important to recognise that the last confirmed outbreak of the disease occurred in September last year. It is encouraging that no new outbreaks have been confirmed. Nevertheless, there are no grounds for complacency.
Lord Moran: My Lords, I welcome the measures taken by the Scottish Office to control this serious disease. Will the Minister confirm that he will resist calls for ISA to be downgraded from the status of a list 1 disease requiring compulsory slaughter as this might have the disastrous consequence of allowing it to become endemic, as it is now in Norway?
Lord Sewel: My Lords, the noble Lord makes a good point. Norway adopts a completely different approach to the treatment of this disease, recognising that it is endemic in their waters. Our policy is based on eradication. We believe that that is in the long-term interests of both the fish farming industry and wild fish interests. We shall maintain that policy until our scientists advise us that it is no longer credible. I hope that that situation will not arise.
Baroness Carnegy of Lour: My Lords, are the tanks within which Norwegian ships move the salmon from farm to farm suspect? If they are, are the Government doing anything about regulating the washing out of those tanks?
Lord Sewel: My Lords, I should clarify a point which I am sure the noble Baroness would not wish to go unclarified. There is no importation of live salmon from Norway. There are movements between sites. We have set up an industry working party to improve the husbandry and overall healthcare and sanitation

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procedures which are adopted for the well-boats. I am pleased to say that the industry is co-operating thoroughly in that regard.
Lord Taylor of Gryfe: My Lords, will the Minister confirm that this virus is of no danger with respect to human consumption and that it will not enter the food chain? Can he also confirm that in Canada and Norway, where there is experience of this virus, it has been brought under control? Is it the intention of Her Majesty's Government to apply similar controls so far as the Scottish farmed salmon industry is concerned?
Lord Sewel: My Lords, the answer to the latter point is no. The controls exercised in Norway, in particular, are predicated on the basis that the virus is endemic. We wish to remove the virus entirely, and that requires an eradication policy, not a containment policy. With regard to the noble Lord's first point, I can confirm that the virus cannot live at temperature levels found in the human body.
Lord Mackay of Ardbrecknish: My Lords, will the Minister expedite the identification of temporary sites where those farmers who have been affected by this problem can grow on the next crop of smolts? When he is looking at those emergency sites, will he also consider moving those fish farms currently unaffected which we now know have been wrongly sited in, for example, sea lochs with very little water movement, to better sites where many of the problems affecting the industry and wild stocks will not occur?
Lord Sewel: My Lords, the planning responsibility for salmon farms is in the process of being transferred from the Crown Commissioners to local authorities. The point which the noble Lord makes is an interesting one. I am not sure how it would be implemented. With regard to the noble Lord's first point, I can assure him that we are working closely with the industry, local authorities and SEPA to ensure that temporary sites are made available where that is compatible with the proper environmental precautions.

Overseas Territories: White Paper
2.46 p.m.
Baroness Young Baroness Young asked Her Majesty's Government:
When they expect to issue the White Paper on United Kingdom Overseas Territories announced by the Foreign Secretary in a speech on 4th February 1998.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, Her Majesty's Government intend to publish the White Paper on the Overseas Territories during the week commencing 15th March. The White Paper will provide a comprehensive review of Britain's relations with the Overseas Territories, including the
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relationship with the Government, their financial regulation and the protection of their rich environmental heritage. The preparation of the White Paper has involved wide-ranging consultation on a broad group of subjects. We believe that our proposals will be welcomed.
Baroness Young: My Lords, I thank the Minister for that reply and I welcome the fact that the White Paper is to be published in two weeks' time. Is the Minister aware of the great uncertainty which has been created in these countries, particularly over issues such as citizenship and the relationship of the Overseas Territories with the European Union and the question of tax harmonisation, which would have an immense effect on places like the Cayman Islands and the British Virgin Islands, to name but two?
Baroness Symons of Vernham Dean: My Lords, I am aware of these issues and have discussed them in a number of the Overseas Territories during recent visits. The White Paper will cover a wide range of issues. It was important to consult with the Overseas Territories and with other government departments in Whitehall. I hope that the period of uncertainty to which the noble Baroness refers will soon be over.
Lord Moynihan: My Lords, can the Minister, without anticipating the White Paper, assure the House that it will contain a repetition of British policy that there will be no compromise on sovereignty against the wishes of the people of Gibraltar and that it will therefore effectively be a rejection of the present Spanish proposals for joint sovereignty? Is the Minister prepared today to reject those proposals, which are so demonstrably against the wishes of the people of Gibraltar?
Baroness Symons of Vernham Dean: My Lords, I do not anticipate that the White Paper will be the vehicle for announcing any change in Her Majesty's Government's policy towards Gibraltar. I am sure that that does not come as a surprise to the noble Lord. Our policy towards Gibraltar remains the same as I have described in previous statements that I have made to your Lordships' House.
Lord Steel of Aikwood: My Lords, is the Minister at least able to assure the House that the White Paper will draw a clear distinction between those territories that are genuinely overseas, in the sense of being remote, and Gibraltar, whose future clearly can be determined within the ambit of the European Union?
Baroness Symons of Vernham Dean: My Lords, I believe it has already been pointed out that there are differences in the case of Gibraltar. When my right honourable friend announced the intention to publish a White Paper he made it clear that some of the issues would not have a direct bearing on Gibraltar. After all, the question of the right of abode for citizens of Gibraltar has already been decided. I do not wish to anticipate the terms of the White Paper; indeed, I am

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sure that noble Lords would be very cross with me if I did so. However, I believe that I can give the noble Lord the assurance that he seeks.

NHS: Access to Services
2.50 p.m.
Baroness Knight of Collingtree Baroness Knight of Collingtree asked Her Majesty's Government:
What steps they propose taking to ensure that patients do not have to move house to receive the medication they need.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, we are determined to tackle unwanted variations in access to services. We are taking action to ensure that the most effective services are available more consistently across the country. We are putting in place mechanisms to develop clear national standards, to promote their implementation and to monitor progress.
Baroness Knight of Collingtree: My Lords, I am grateful for the response of the Minister. Is not rationing of health treatment by postcode freely acknowledged to be taking place by the majority of GPs and even the chief executive of the National Health Service Confederation, who advises people to move house to get better treatment? I assume that this rationing does not stem from malice but from the fact that some areas have the means to pay and others do not. I am aware that NICE will come into play, as the Minister said, but exactly how will it bring about equality? Are the Government to give more money to areas that do not presently have enough so that there is equality of treatment; will they withhold money from those areas that now have it so that there is equality in the sense of no treatment, or what?
Baroness Hayman: My Lords, we spent many happy hours discussing some of these issues yesterday in Committee. Whether a local health authority funds a particular treatment or gives priority to it is not simply determined by money. It is for the authority to assess the most important issue that faces its local community. To do that is particularly difficult when there is a dispute, as there are in many new drug treatments, about clinical effectiveness. The steps that we seek to take in drawing up national service frameworks for particular conditions and suggesting that the National Institute for Clinical Excellence sets guidelines for appropriate treatment for particular conditions are designed to ensure that every health authority receives the same reputable clinical and academic advice about the effectiveness of treatments. We must recognise that at individual patient level the doctor and patient will have an input as to the appropriate treatment and the local health authority will have to decide the priorities.
Lord Winston: My Lords, the noble Baroness has raised a most important question. Is my noble friend aware that it is not just a question of drugs but
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treatments and that in the case of reproductive medicine, for example, patients are forced to change address in order to receive equivalent treatment in a different area of Britain? Can my noble friend suggest what should be done to ensure that there is equality of treatment for these patients'?
Baroness Hayman: My Lords, I recognise the issue to which my noble friend refers, particularly in regard to infertility treatment. We are, however, trying to tackle the variations in prescribing and availability of services that grew up because of the fragmentation of the health service and the two-tierism and variety implicit in GP fundholding. No one should assume that this is a new problem; it is one that we seek to reverse. As to access to NHS infertility treatment, particularly tertiary services involving reproductive techniques, the Government are commissioning a survey of health authorities to find out exactly what the variations are in provision. We hope to issue guidance towards the end of the year having examined the survey results and considered the policy and cost implications of the clinical guidelines on infertility that are being developed by the Royal College of Obstetricians and Gynaecologists.
Lord Clement-Jones: My Lords, apart from infertility treatment there are many other glaring examples of postcode rationing, such as beta interferon for the treatment of multiple sclerosis, Aricept for Alzheimer's and Taxol for breast cancer, to name but a few. Will the department be asking the new National Institute for Clinical Excellence to look urgently at those aspects of postcode prescribing? Will the institute have sufficient resources to do that?
Baroness Hayman: My Lords, the noble Lord is right to point out the crucial role that the institute will have in these kinds of areas and how it can speed access for patients more fairly to clinically effective treatments. These are not easy issues. Questions are raised about particular treatments. The noble Lord referred to Taxol. The department wrote to all regional directors of public health to draw to their attention the view of the JCCO and oncologists about the effectiveness of that treatment. The noble Lord may well be aware that in recent articles in The Lancet the results of a new trial, ICON II, have been produced which have questioned that advice. We are in a shifting area when new treatments are introduced. It is important that we have the strength of the national institute to assess clinical effectiveness.
Lord Pilkington of Oxenford: My Lords, is the Minister content that when a patient is being treated in another area health authority the home area authority rings the family of that person close to death and says that it can provide better treatment, rather like a tradesman who offers a magic cure? Is that helpful to the family? I can assure the Minister that that occurs.
Baroness Hayman: My Lords, if it occurs I shall be very grateful if the noble Lord can provide me with

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details of such a case. I undertake to investigate it because, as he describes it, that is a situation that is most concerning.
Lord Peston: My Lords, does my noble friend agree that, while it is reasonable for central government to take an interest in how resources are allocated, there must be permissible variations according to local services? Does he also agree that in an area where doctors prescribe less rather than more it cannot be taken for granted that it is indicative of wrong prescribing? I speak as chairman of the Office of Health Economics. Does my noble friend further agree that sometimes more prescribing is worse than less prescribing when it comes to assessing local priorities?
Baroness Hayman: My Lords, my noble friend is absolutely right to point out that these are not simplistic analyses in the sense that if more is spent on something higher quality can be achieved. The aim is to ensure that patients have access to high quality services. Members of your Lordships' House who have taken a great interest in the prescription of antibiotics, for example, recognise that high quality service does not suggest that there should be widespread prescription of unnecessary antibiotics.
Baroness Masham of Ilton: My Lords, are the Government working in full co-operation with the pharmaceutical industry to determine the effectiveness of various drugs for the benefit of patients?
Baroness Hayman: My Lords, obviously the role of the pharmaceutical industry in developing new and effective drug treatments is crucial. Recently we have issued a consultation document explaining to the industry how the new appraisal techniques that the National Institute for Clinical Excellence is to undertake will be used in order to assess the clinical and cost-effectiveness of new drugs as they are introduced.
Earl Howe: My Lords, how do the Government plan to achieve the levelling up in the availability of treatments that they say they want to achieve when for the first time in the history of the NHS the drugs budget is to be capped and the size of that budget is not to be increased substantially? Does it not imply that if health authorities increase the availability of some treatments inevitably they will restrict the availability of others?
Baroness Hayman: My Lords, we believe that unified budgets that allow health authorities and individual clinicians to look across the range of services and medicines that they provide is an important way to encourage local responsibility and flexibility. As my noble friend pointed out, spending more on drugs is not necessarily the best way forward. GP practices which have decided to adopt higher rates of generic prescribing while ensuring high quality services for patients would also make savings which, under the new arrangements, could be ploughed back into their services.
Baroness Gardner of Parkes: My Lords, how does the Minister propose to provide every treatment for
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everyone? The Minister will remember the figures from yesterday indicating that few people in this country who would benefit from beta interferon for multiple sclerosis are receiving it. Research indicates that all cases would benefit from the drug. How can the drug be provided throughout the country to everyone who needs it without finding extra resources?
Baroness Hayman: My Lords, we are putting substantial extra resources into the NHS. The figure is £21 billion in the UK over the CSR period.
However, I do not think that I suggested that everything would be available to everyone immediately. It will take time to achieve what we seek. It will take time to build up a more equitable access to high quality services for all patients, but that is what we are determined to do.

Miners' Health Claims: Financial Awards
3 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What action they are taking to expedite the decision on awards to former miners suffering from bronchitis and emphysema.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the Government have agreed with the plaintiffs' solicitors the tariff of compensation damages and the use of a single medical assessment process. We hope to reach an agreement on the detailed handling arrangements in the next few weeks.
In order to make further interim payments, we have tendered for a national spirometry testing programme which should enable us to begin to make offers in April.
We are aiming to begin the main medical assessment process in the summer.
Lord Dormand of Easington: My Lords, I welcome that promising reply from the Minister. Is my noble friend aware that there was recently great satisfaction among former miners at the decision to make generous compensation, as I understand it, to those suffering from vibration white finger? However, is he aware that it is estimated that about 100,000 former miners suffer from bronchitis, emphysema and related chest diseases? Has an estimate been made of the amount of money likely to be available for the payment which he mentions? Will he confirm that compensation has been agreed? That is the interpretation I place on the Answer. Will the Minister ensure that there is rapid payment, and that we do not repeat the disgraceful delay of the past few years?
Lord Sainsbury of Turville: My Lords, as I hope I made clear, a tariff has now been agreed with the plaintiffs' solicitors' group. Therefore, that part of the process is now agreed. We still have to deal with exactly how the claims are processed. However, we hope that

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we shall be able to do so by the end of the month. The main medical assessment process should begin in the summer. So we are making good progress, although obviously we should like to do so even more quickly.
As regards the total amount of compensation, the figure will be in excess of £1 billion, and it is covered in the Comprehensive Spending Review. There was no figure when we came into government; no liabilities existed. We have a figure of over £1 billion in the Comprehensive Spending Review; and the Government are committed to making certain that the liabilities are covered.
Lord McNair: My Lords, will the Minister reassure the House that coalminers who suffer from emphysema and bronchitis resulting from silicosis due to the different geological characteristics of the mines where they worked will be treated in the same way as those suffering from pneumoconiosis?
Lord Sainsbury of Turville: My Lords, the settlement announced in January 1998 solely covered chronic bronchitis and emphysema. It does not cover pneumoconiosis; and silicosis, I understand, is also not covered, being more related to pneumoconiosis than chronic bronchitis and emphysema.
Lord Lofthouse of Pontefract: My Lords, I thank the Minister for his reply. In a debate on the issue in the House on 16th November, I drew the attention of your Lordships to the fact that if every miner who had made an application had to go for an individual medical it would take years for them to receive settlement. Bearing in mind that it has been calculated that 10 miners a week die of this dreaded disease, by the time they had all had individual examinations a considerable number would have died.
Will the Minister give further consideration to my suggestion in the previous debate? Could those who have had examinations and been awarded industrial injuries benefits based on those examinations be given immediate compensation without further examination, based on a percentage award of the industrial injuries benefit? That would prevent many of those men having to wait many years, and enable them to receive compensation before they died.
Lord Sainsbury of Turville: My Lords, I agree that one of the tragedies of the situation is that people are dying while the process is going on. But we have taken considerable action. We have already paid interim payments to those people who are receiving benefits under the industrial injuries disablement benefit for chronic bronchitis and emphysema. In those cases we know that they suffer from chronic bronchitis and emphysema and have worked underground for 20 years. Therefore we can make interim payments to them.
The people not covered are those suffering from pneumoconiosis. We do not know whether they are suffering from chronic bronchitis and emphysema. We brought forward the special process of the spirometry tests so that we can make interim payments to those people.
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In many cases we shall also be able to make full and final payment once we know what the lung function tests show. In those cases we shall do so. But for full compensation in many cases we shall have to await the full medical assessment process. We are doing everything to bring forward that process.
Lord Campbell of Croy: My Lords, can the Minister assure us that every protection from the health hazards which have caused so much distress and suffering in the past is now being given to miners working in the pits?
Lord Sainsbury of Turville: My Lords, I can only assure the House that the regulations are being covered. It is no longer the responsibility of the Coal Board but of the individual operators to comply with the regulations.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lady Symons of Vernham Dean will, with the leave of the House, repeat a Statement being made in another place on events in Uganda. The Statement is likely to be taken between the Report stage of the Road Traffic (NHS) Charges Bill and the Report stage of the Youth Justice and Criminal Evidence Bill.

Financial Services and Markets: Select Commitee
3.7 p.m.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Commons message of yesterday be now considered and that a Select Committee of eight Lords be appointed to join with the Committee appointed by the Commons, as the Joint Committee on Financial Services and Markets, to report on the consultative document on the draft financial services and markets Bill presented by Her Majesty's Command on 21st December 1998 and any further draft of the Bill which may be laid upon the Table of both Houses by a Minister of the Crown;
That, as proposed by the Committee of Selection, the following Lords be named of the Committee:

L. Burns,

L. Eatwell,

L. Fraser of Carmyllie,

L. Haskel,

L. Montague of Oxford,

L. Poole,

L. Taverne,

V. Trenchard.

That the Committee have power to agree with the Commons in the appointment of a Chairman;
That the Committee have leave to report from time to time;
That the Committee have power to appoint specialist advisers;
That the Committee have power to adjourn from place to place within the United Kingdom;
That the minutes of evidence taken before the Committee from time to time shall, if the Committee think fit, be printed and delivered out;
That the Committee shall report by 30th April 1999; and that the Committee do meet with the Committee appointed by the Commons this day at half-past four o'clock in Committee Room 3A.—(The Chairman of Committees.)
Lord Bruce of Donington: My Lords, will the noble Lord give the House some indication of the rights that Members of this House will have to attend this committee? What rights do they have to any papers which may properly be placed in their possession?
The Chairman of Committees: My Lords, Members of your Lordships' House will have the usual rights of attendance before this committee. That is to say, in its public hearings Members of your Lordships' House will have the right to attend. On the invitation of whoever is appointed as chairman of this committee—if your Lordships accept the Motion today—your Lordships will be entitled to attend deliberative sessions, but only with permission.
On Question, Motion agreed to, and a message was ordered to be sent to the Commons to acquaint them therewith.

Commonwealth Development Corporation Bill [H.L.]
3.10 p.m.
Report received.
Clause 18 [Minimum Crown share-holding]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 1:
Page 8, line 19, leave out ("section") and insert ("Act").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 4 and 5. These three amendments all affect paragraph 14 of Schedule 2. That paragraph deals with a technical point arising from the Companies Act 1985. It excludes the Secretary of State from the Companies Act definition of shadow director for certain purposes. Those are the purposes set out in paragraph 14(2) of Schedule 2. That serves to ensure that certain administrative and other obligations of the Companies Act, which would be time-consuming and unnecessary in the context of a public/private partnership, will not arise.
The purpose of Amendments Nos. 1 and 5 is to extend the duration of the provisions of that paragraph of the Bill. The main change is made by Amendment No. 5. As drafted, paragraph 14 of Schedule 2 provides that the exclusion of the Secretary of State from the obligations I have mentioned lasts for as long as the Commonwealth Development Corporation is wholly owned by the Crown. By changing the wording of paragraph 14(1), Amendment No. 5 would have the effect of extending the duration of that exclusion so that it would last for as long as the special share was held by the Crown.
Amendment No. 1 is merely consequential on Amendment No. 5. As drafted, the Bill uses the expression "special share" only in Clause 18 and so the definition in Clause 18(2) applies only to that clause. Since Amendment No. 5 would introduce the same expression into Schedule 2, it is necessary to amend Clause 18(2) so that the definition applies to the whole Bill; in other words, to Schedule 2 as well.
The reason for extending the duration of the provision is to put beyond doubt for as long as the partnership between CDC and the Government exists the question of whether the Companies Act obligations which I mentioned earlier arise. The provision is essentially intended to remove the possibility of unnecessary regulatory burdens being placed upon the public/private partnership; and to provide clarity as to the Companies Act obligations which apply to the person involved in the partnership. The provision should therefore last for as long as the public/private partnership continues.
Amendment No. 4 ensures that the Treasury is brought within the scope of the provision. As a result of the Bill requiring Treasury consent to certain actions of the Secretary of State, together with the Treasury's involvement with the decision-making processes in relation to CDC, the Treasury, as well as the Secretary of State, may risk falling within the definition of shadow director in relation to the CDC or an associated company. Therefore, it is appropriate that the exclusion should apply to the Treasury also, for the reasons to which I referred earlier. I beg to move.
On Question, amendment agreed to.
Clause 21 [Treasury consent]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 2:
Page 9, line 19, at end insert—
("( ) making an order under section 1(3),").
The noble Lord said: My Lords, Clause 21 ensures that the Secretary of State can take certain financial steps under the Bill only with the Treasury's approval. This amendment adds a further action to the list contained in that clause. It ensures that the Secretary of State can make an order providing for the allotment of shares on CDC's registration only with the consent of the Treasury.
The making of that order, relating as it does to CDC's financial restructuring, falls within the province of the Treasury. I beg to move.
On Question, amendment agreed to.
Clause 25 [Interpretation: general]:
Baroness Rawlings Baroness Rawlings moved Amendment No. 3:
Page 11, line 23, at end insert—
("(3) With the exception of this section this Act shall not come into force until the Secretary of State has laid in draft before the House of Commons an order contained in a statutory instrument making such provision relating to the tax liability of the CDC as will encourage private sector investment in it, and the order has been approved by resolution of that House.").
The noble Baroness said: My Lords, in Committee, we questioned a number of aspects of this Bill. It represents for the first time ever the practical application of private/public partnership, a rather nebulous idea. We are still sceptical about the PPP concept. It appears to presuppose that the only successful route is the third way that between the public and private sector. However, tertium non datum. I understand that a young progressive Government would wish to escape the stricture of Aristotelian logic. But we doubt the future success of the formalised third way.
However, in this particular case, we all want to see the continued success of the CDC/PPP—I apologise for so many acronyms. There are three fundamental elements which are crucial to the CDC's success: the balance sheet structure, the timing of the offer to the private sector and, last but not least, its tax status.
I do not believe that it is necessary to return to the first two elements with amendments. It is in the Government's interests to get the balance sheet and the timing right, as the Minister indicated in Committee. I take this opportunity to thank the Minister for his co-operation, understanding and, especially, for his clarity and candour in relation to all the previous points raised. Perhaps the Minister will help me once more by assuring us that, first, the CDC will be endowed with a strong balance sheet containing the right proportion of equity and loans so that it is attractive to private sector investors; and, secondly, that the offer of the CDC shares to the private sector will not be rushed, given the challenge of increasing returns without betraying the spirit of the development purpose. Of course, the respect of the latter is ensured by the memorandum and articles of association.
However, we feel we must return to the third and most important matter—that of the CDC's tax status—with an amendment. I should state at the outset that I am most grateful to the Minister for alerting me to the fault in the drafting of my original amendment. The effect of the redrafted amendment is to make the coming into force of the Act conditional on achieving for CDC tax liabilities which will be attractive to the private sector. I trust that the new wording is acceptable.
The amendment reflects our conviction that it is imperative for the success of the partnership that the CDC is tax efficient. Only through new tax-efficient provisions will the current downward trend of CDC's returns improve. Only if the returns improve will the CDC attract a sufficient number of private investors to make it a genuine PPP.
As the tax issue is so crucial, I feel that it is prudent to solve it at the outset. In a Written Answer given on 16th February, the Minister said:
"The Government have agreed the broad principles for a tax solution that will provide the Commonwealth Development Corporation Public Private Partnership (PPP) with the required tax efficiency".—[Official Report, 16/2/99; col. WA 74.]
I hope that this debate will give the Minister the opportunity to expand on that important and welcome statement and that, having acknowledged the importance of the issue in Committee, he will be able to go further and accept the substance of the amendment. I beg to move.
Lord Redesdale: My Lords, I support the amendment. I begin by congratulating the noble Baroness, Lady Rawlings, on the reworking of the amendment because it is one which is extremely difficult to draft. This amendment comes from two amendments which were tabled separately in Committee. Having moved one of those amendments, I realise how difficult it is to achieve an amendment which meets the high criteria set out by the noble Lord. It may be that there are some problems with the wording of this amendment.
On these Benches, we support the initiative being taken in proposing a public/private partnership on the basis that it will, it is hoped, increase the amount of work that the CDC does on development in the developing countries, which can only be good. The issue, however, that has caused so much concern is that of tax. By tabling the amendment, we are putting forward our concerns that this issue has not been addressed.
In Committee, the Minister said that it was unlikely that he would be able, at this stage of the Bill, to come forward with a definitive solution to the problem. However, by accepting the amendment he would be acknowledging that there is a problem. I hope that when those in another place come to scrutinise the Bill they will be given the opportunity to consider proposals put forward. If they draft amendments, such amendments will come back to this House and we shall be given a second opportunity to scrutinise this point.
I hope very much that the noble Lord will accept the amendment. I specifically say that because in the seven years that I have been a Member of this House, I have never yet tabled an amendment that has been accepted.
Lord McIntosh of Haringey: My Lords, I am grateful to both the noble Lord, Lord Redesdale, and the noble Baroness, Lady Rawlings, for the way in which they dealt with the amendment. I confirm that we are very much on the same side in what we want to achieve from the Bill. I am afraid that the noble Baroness lost me with her Aristotelian logic. I was brought up in a much more rigid school where symbolic, mathematical logic was the order of the day. I hope that philosophy teaching is less rigid than it was when I was at university. I shall study to understand the import of what she said.

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The noble Baroness asked whether I could assure her that the right proportion of equity and loans would be achieved to make the new CDC work properly. I can certainly give her that assurance. Even under its present regime, the CDC is already working very hard to reduce the proportion of its capital in the form of loans and to increase the proportion in the form of equity in preparation for the regime proposed by the Bill.
The noble Baroness asked for an assurance that we would not be rushed into the final stage of this process. I can give her that assurance also. Clearly, it is to nobody's advantage if we move to the market in the PPP, private/public partnership, format at a time when market conditions are unfavourable. We cannot anticipate now when that will be, but we shall certainly not be rushed into it.
I turn to the issue of taxation. The noble Baroness asked what tax regime is needed to attract sufficient private investment to provide the gearing which will improve the quantity and quality of the work that the CDC can do in developing markets. I can confirm that it is the Government's view that the CDC has to be tax efficient if it is to achieve its goal of investing in developing countries, using private capital raised in the context of a competitive private investment market dominated by offshore funds. As the House will know, it is the policy of the Government that we could not take the CDC offshore. It would be entirely inappropriate for an organisation of this kind to be located, for example, in the Cayman Islands.
The noble Baroness referred to my Written Answer of 16th February. I stated then that the Government have already agreed the broad principles for a tax solution that will provide the CDC public/private partnership with the required tax efficiency. Work is continuing on the details. However, I am sorry that such work has not been concluded to a sufficient extent to allow us to bring forward the necessary amendment to the Bill today or even at Third Reading.
We intend to introduce the necessary amendments to the CDC Bill at the appropriate time in the House of Commons. I make it clear that I refer to amendments to the CDC Bill rather than provisions in a finance Bill. That means that amendments introduced in the House of Commons will inevitably come back to this House for final decision. I can assure the House that there will be no move to Royal Assent without such an amendment or amendments being agreed by both Houses. Therefore, I think I can give both noble Lords the assurance they seek that we shall not conclude proceedings on the Bill without the tax solution which they and we require.
Amendment No. 3 would require the Secretary of State to lay before the House of Commons an order making provision as to the tax liability of the CDC, such provision as will encourage private sector investment in it, and to have that order approved by the House of Commons. The Government are not opposed to the sentiment behind the amendment. I hope I have made that entirely clear. However, we believe that secondary legislation would be the wrong way to make this kind
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of provision concerning tax. I well understand the difficulty experienced by those who framed the amendment. It is impossible to put an amendment into primary legislation which anticipates a provision which cannot yet be made. I appreciate that the advice from the Public Bill Office created great difficulties for them. I sympathise. However, I am sure they will understand that the proper way to make the necessary provision is by primary legislation and that is what we intend to do by tabling amendments to the Bill in the House of Commons.
With those assurances and expressing much regret to the noble Lord, Lord Redesdale, who wants an amendment on the statute book in his name—I am sure we can find a way of doing that—I urge the noble Baroness not to press the amendment to a vote.
Baroness Rawlings: My Lords, I wholeheartedly thank the Minister for his answer and assurances. I thank the noble Lord, Lord Redesdale, too, for his support. I congratulate the Government on finding an opportunity to include this matter. In particular, I appreciate the determination of the Minister in pursuing the matter with the Treasury and the Inland Revenue. I know that that is not an easy task.
The proviso attached to the tax rate also demonstrates the Government's commitment to PPP. I am sorry to hear that the Minister is unable to accept the amendment. However, as he has accepted the spirit of it, I shall withdraw it for the moment. No doubt we will return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Modification of Companies Act 1985, & C.]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 4 and 5:
Page 15, line 14, leave out ("the Secretary of State shall not") and insert ("neither the Secretary of State nor the Treasury shall").
Page 15, line 16, leave out ("Corporation is wholly owned by the Crown") and insert ("Crown continues to hold any special share provided for under the Corporation's articles of association").
The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 1. I beg to move.
On Question, amendments agreed to.

Sexual Offences (Amendment) Bill
Brought from the Commons; read a first time, and to be printed.
Scottish Enterprise Bill
Brought from the Commons; read a first time, and to be printed.

Road Traffic (NHS Charges) Bill
3.28 p.m.
Report received.
Clause 1 [Payment for hospital treatment of traffic casualties]:
Earl Howe Earl Howe moved Amendment No. 1:
Page 1, line 24, at end insert ("; or
(e) a payment made in respect of an accident caused by a vehicle which is not required to be insured by virtue of section 144(2) of the Road Traffic Act 1988.").
The noble Lord said: My Lords, perhaps I may start our proceedings on Report by expressing my thanks to the Minister and to his noble friend Lady Hayman for the very full letter I received a few days ago which answered many of the points of detail that arose in Committee. It was an extremely helpful letter. As a result, I can tell the House that I shall not be moving some of my amendments.
In Committee I asked the Minister to explain why Crown vehicles were not caught by the Bill as drafted. I understand that there are over one million such vehicles, some conventionally insured on the market despite the exemption they enjoy from that legal requirement. In reply, the Minister stated that the premise of the Bill was simply to collect existing charges but to do it better and not to extend the scheme or to introduce new charges. I really have to challenge that answer because it clearly is not true. The Bill extends the recovery of charges to a very significant new category of driver; namely, those who are uninsured or untraceable. It does that, of course, through the Motor Insurers' Bureau.
My substantive point is this: there appears to be no reason in logic or equity why the victims of accidents caused by Crown vehicles should be treated any differently from the victims of accidents caused by other vehicles. If the Government believe that it is appropriate to recover the costs of treating victims of uninsured drivers from honest, premium-paying motorists, and to extend the scope of the Bill to do so, I do not see why they should not include Crown vehicles in the scheme as well. I beg to move.
Lord Hunt of Kings Heath: My Lords, I thank the noble Earl for his kind remarks about the explanation sent to him following the Committee stage.
I start by reiterating that the purpose of this Bill is to introduce a system to collect existing charges, but to do it more effectively than in the past. There is no intention to extend the scheme or introduce new charges. The existing charges are only due where compensation is paid by an authorised insurer in respect of a claim against a motor insurance policy.
The bodies listed in Section 144(2) of the Road Traffic Act 1988 are not required to carry compulsory insurance and therefore have no obligation under the current law to meet NHS charges. Amending the law to bring those bodies into the net of obligations associated
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with compulsory vehicle insurance goes much wider than this Bill, concerned as it is with collecting existing charges more effectively.
The noble Earl raised today, as he did in Committee, the issue of the Motor Insurers' Bureau. I should like to make two points in that regard. First, the MIB can and does meet the cost of private sector medical treatment in cases where the accident victim opted for care in the private sector. The private sector hospital can require the MIB to settle the patient's medical bills directly. The Bill intends that the NHS should be able to do likewise.
Secondly, it is worth pointing out that in the time of the previous administration, in 1992, it was proposed by the then government to recover state costs from the MIB. One must ask why it is wrong to seek to give the NHS parity with private sector hospitals. The MIB acts in exactly the same way as any other authorised insurer. It should meet the same risk as those insurers.
I listened carefully to the noble Earl and, while I do not want to offer him any expectations, I should like to reflect on what he said. On that basis I hope that he will feel able to withdraw his amendment.
Earl Howe: My Lords, I am grateful to the Minister. I understand the point in relation to parity in so far as it affects the Motor Insurers' Bureau and its existing liability to pay for private treatment. But my point today can be summed up in one word: equity. Why should Crown vehicles escape the net? I realise that they are not in the net at the moment and that the Bill is largely designed to improve the current system for those who are liable for charges. That is a substantive point. I am grateful to the Minister for saying that he will consider the matter and I understand that that is without commitment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Information contained in certificates]:
Earl Howe Earl Howe moved Amendment No. 2:
Page 3, line 31, after ("out") insert ("in").
The noble Earl said: My Lords, Amendment No. 2, which I tabled in Committee, addresses itself to a simple point of drafting. Clause 3(2) of the Bill does not make grammatical sense. If the phrase between the two commas is removed, it is clear that the word "in" has been omitted.
In Committee the Minister seemed to think that I was being a little over-pernickety and argued that what really mattered was that the sense was clear. My strong feeling is that that is not good enough. Of course we know what the wording means, but we should not knowingly pass a badly drafted section of a Bill into law. I am happy to say that that point was supported in Committee by at

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least two other noble Lords. I therefore bring back the amendment in the hope that the Minister will reconsider his reply. I beg to move.
Lord Hunt of Kings Heath: My Lords, well-spotted! The noble Earl pointed out that the wording of the Bill can be improved. I accept that and am prepared to accept his amendment.
Earl Howe: My Lords, I am extremely grateful to the Minister. This is a major triumph for the Opposition and I express my gratitude to him and his colleagues for all the deep thought that must have gone in to that reply.
On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 3:
Page 3, line 43, leave out ("2nd July 1997") and insert ("1st April 1998").
The noble Lord said: My Lords, in the wake of that major concession my hopes are rising by the second. I join with the noble Earl in thanking the Minister for his considerable courtesy in writing a letter which, even to my jaded brain this morning, made sense and influenced the approach of these Benches to some of the amendments we tabled. It was a model of clarity.
However, Amendment No. 3 is still a bone of contention between us. I read carefully what the Minister said in Committee on 18th February and it still appears to be a Bill containing many elements of retrospection. We believe that the principle should be that the insurance company should only pay out the amount of charge that was known at the time the premium was paid.
What we see on the Marshalled List today represents a compromise from that position to some degree because one needs to set a date and perhaps it is unduly onerous to set a date that is the passing of this Bill. However it is abundantly unfair for insurers to have to accept the date of the Budget in July 1997 when it was not possible for them to ascertain what the charges should be. I know that the Minister said discussions had taken place with the insurance industry and it appeared to accept this point. But it appears to me to be somewhat "Sicilian" negotiation with the insurers—"This is really an offer you cannot refuse"! It would be far preferable to move to a different date.
It seems that the current date of July has either been taken as a Budget or, in a sense, it is two years back from where we are now because that is the assumption as to the amount of time it takes to settle an accident claim. Either way, it is extremely arbitrary. We should therefore like to see some movement from the Government. In particular, it would be useful to know the precise estimated difference in the cost between the date of April 1998 and July 1997. What is the impact on the NHS of taking the two different dates? I beg to move.
Earl Howe: My Lords, in Committee, alongside the noble Lord, Lord Clement-Jones, I argued that the Bill's retrospective nature was undesirable in principle and
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practice. It is undesirable because retrospection should not be incorporated into new law without good reasons, and in this case no such reasons exist other than a blatant desire on the part of the Chancellor to defray NHS running costs to the latest possible date.
As the noble Lord rightly pointed out, there is no way that insurers who wrote motor policies between 2nd July 1996 and 2nd July 1997 could have budgeted for the additional costs to which the Bill will give rise. It is also wrong that the Government are legislating for a period even before they were elected to office. Replying to me in Committee, the Minister made no attempt to answer those fundamental points, which is not surprising as there are no satisfactory answers.
Insurers who are no longer writing motor business will he particularly severely affected. That category, faced with a claim, would be most unlikely to recoup any costs imposed arising from policies written during the period in question. The Minister was unable to answer that point and the response he made was extremely weak—that it takes up to two years for charges to feed through to the NHS, so setting a date of 2nd July 1997 for the provision to apply was not unreasonable. That wholly fails to address whether 2nd July 1997 is a fair starting point. To put the matter at its starkest, some motor policies priced on the old basis will have continued in force for more than one year after the Chancellor's announcement. That cannot be fair.
The amendment seeks to strike a fair compromise. The Minister indicated in Committee that the insurance industry is content with a starting point of 2nd July 1997, but my information is that that is not the case. The industry was only prepared to acquiesce with extreme reluctance. A starting date of 1st April 1998 would not entirely eliminate the Bill's retrospective impact but would allow a reasonable period after the Chancellor's announcement for insurers to factor in the new risk to motor policies written after that date. I ask the Government to think again.
Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Clement-Jones, for his acknowledgement of the clarifying letter from my noble friend Lady Hayman.
There has been a great deal of discussion about retrospection. The noble Lord referred to Sicilian negotiations. I am not sure what he meant but I am certain that that is not an accurate description of the discussions between the Department of Health and the Association of British Insurers, which suggested that applying the higher rate of charges to NHS treatment from 2nd July 1997 would be reasonable. The insurers' representative body sought a meeting with the Secretary of State precisely because it wanted to discuss when the new charges for NHS treatment would be introduced. That meeting was held one year ago to the day—on 2nd March 1998, when insurers themselves advanced the date of 2nd July 1997 as being reasonable and fair for the new higher rate charges to take effect.

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At that stage, the insurers had eight months' notice of the intended changes. They have had a further full year to adjust their practice. The average time taken to process a claim for compensation is two years. NHS charges are due when compensation is paid. In April 1999, when the new scheme should begin, some of the compensation payments coming through will relate to accidents in 1997 but many will relate to accidents after that time.
The argument has been made that insurers selling policies in 1997 would not have been aware that they could include exposure to the new higher rate NHS charges and that insurers must find additional money to meet that demand. Claims against motor vehicle insurance policies have risen over 10 years—using figures supplied by the Association of British Insurers—from £2.2 billion in 1986 to £5.1 billion in 1996. In 1996, the NHS recovered only £13 million in respect of treatment following road traffic accidents, which is one quarter of 1 per cent. of the money that insurers paid out on motor vehicle insurance policies.
Insurers selling motor vehicle policies in 1997 would have taken into account the possibility of a claim against that policy under the current provisions of the Road Traffic Act 1988 whereby an insurer could have faced a maximum charge for in-patient treatment of £2,949. That would have been part of the insurer's consideration. Under the new higher rate charges, the insurer can face a daily rate charge for the same accident of £435 per day, although admittedly there is a maximum charge of £10,000.
The average length of stay in an NHS hospital following admission after a road traffic accident is just over eight days. At the new higher rate charge, that average will produce a bill of about £3,500—a difference in cost in an average case of about £500. Given that the insurer could also be made to pay for treatment received in the private sector and must have allowed also for that possibility when setting premiums in 1997, the increase in NHS charges is only a small part of the insurer's cost.
I do not accept that our proposals are anything more than a small element in the insurance industry's calculations. It is interesting to view in parallel the implementation of social security benefits recovery legislation. That provides a system whereby the compensator is liable for the full amount of benefit paid up to the date of the compensation payment, subject to a five-year maximum. That certainly may reduce the compensation payable to the injured person, but only where benefits and compensation have been paid for like need.
Recovery of benefits legislation introduced by the previous administration applied from the beginning to compensation payments made after the legislation came into effect, irrespective of when the injury occurred. That relates both to the 1989 legislation, which affected victims, and the 1997 revision of the scheme, which affected compensators. The government of the day announced that they would move to introduce legislation 12 months before the 1989 Act was passed. In a subsequent case brought under the European
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Convention on Human Rights, that period of notice was accepted as reasonable and the Commission rejected a claim that the Government's action was retrospective.
We are considering now legislation where the intention to act was announced one-and-a-half years ago. The expectation that the new scheme would raise about £100 million each year was announced by the Treasury in October 1997£16 months ago. The actual range of income that the Department of Health considered feasible was made known to the Association of British Insurers in January 1998—more than 12 months ago.
We have been asked to consider the compromise position of 1st April 1998. For the reasons given, that is not more acceptable than the date agreed with the insurers of 2nd July 1997. For many years the NHS missed out on income that was its due. We were on record as saying that we wanted to rectify that position as soon as possible and move to charges that better reflect the costs of treatment. We have an agreed date with the insurers for so doing.
Any delay such as that proposed in the amendment in implementing the higher rate charges would be at further cost to NHS hospitals. The noble Lord, Lord Clement-Jones, asked me to quantify this. It is hard to give him an exact figure. However, putting the starting date for higher rate charges back from 2nd July 1997 to 1st April 1998 would be likely to reduce the direct income to hospitals providing care for accident victims by around £30 to £40 million. That may not seem to be a great deal when set beside the billions of pounds that insurers pay out every year in car-related claims, but clearly it is a very significant sum to NHS hospitals. The real boost to hospital incomes comes from the fact that we begin for the first time to pick up all the claims that are made and to raise NHS charges in all of these cases. The move to full costs is a long overdue step, but one that I think should not attract undue attention out of proportion to its real effect on insurers. On that basis, I invite the noble Lord to withdraw the amendment.
Lord Clement-Jones: My Lords, I thank the Minister for that most interesting response. Indeed, there was a great deal of meat in it, especially as regards the cost and the difference between the two. I believe that it deserves considerable reflection between now and Third Reading. I must thank the noble Lord for the care that he took in responding. It is a difficult matter because obviously there are issues of principle versus the question of cost to the NHS. One needs further reflection in order to resolve some of the issues that have emerged. Nevertheless, I thank the Minister for his reply and, in the meantime, beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Clause 9 [Appeal to the court on point of law]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 5:
Page 6, line 36, leave out ("Regulations may provide that").
The noble Lord said: My Lords, I should like formally to move this amendment because my own amendment is so closely cognate to it. The letter which I received

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from the Minister is unclear and needs a little clarification. However, despite the fact that my brain was working superbly this morning, it may be me rather than the wording of the letter. I do not quite understand the impact of Order 55. Not being a litigation lawyer, it is not entirely clear to me whether that order will still operate to allow an appeal under the Bill, despite the fact that no regulations may be made.
If the Bill simply provides that regulations "may be made" and, in the event, they are not made, what impact would that have in those circumstances? For example, would Order 55 override that to allow an appeal, or would regulations need to be made in order to allow an appeal? The letter is not entirely clear in that respect.
I accept the fact that Schedule 1 to the rules of court is, so to speak, a temporary schedule, whereas the rules themselves now seem to be fairly fixed. Therefore, there are some further issues involved. I still feel rather uncomfortable about an appeal not being enshrined in the Bill and simply being allowed under regulations. If the Minister could clarify the question as to whether an appeal is available even if regulations are not made, that would be most helpful. I beg to move.
Lord Hunt of Kings Heath: My Lords, I understand the concerns that led to the moving of this amendment. There is the particular concern that, while those in Scotland will have on the face of the Bill a right of appeal to a higher court, people in England and Wales will have that right only through subordinate legislation. I should like to make it very clear at the outset that there is no question but that a right of appeal will be available to the High Court in England and Wales. Placing that right in regulations is simply a practical arrangement designed to cope with the fact that provisions governing what happens to an appeal are currently being reviewed. The review affects England and Wales only.
The noble Lord, Lord Clement-Jones, was certainly correct to say at Committee stage that, as part of the review, the main rules of court had already been published. They have and they will come into effect on 26th April 1999. The provisions which appear in the schedules to the rules, however, re-enact existing court rules. The schedules are still under review by the Civil Procedure Rules Committee.
The provisions which will govern appeals from the High Court in England and Wales are found in Schedule 1. They, in turn, re-enact provisions found in Order 55 of the Rules of the Supreme Court. Order 55 applies to cases where an appeal lies by or under any enactment. They are general provisions covering many types of appeals from courts, tribunals and other decision makers. We are particularly interested in the provisions which govern what the High Court may do with an appeal. The provision of Order 55 enable the court to give judgment or to remit the matter for rehearing and to make further orders. Order 55 specifically provides that its provisions have effect subject to any other provision made by or under an enactment. We do not at this stage anticipate making
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any further provision for NHS charges appeals to the High Court, because the provisions in Order 55 cover the matter.
It would, however, be unfortunate if NHS charges appeals were always bound to follow general provisions without the flexibility to ensure that the system properly meets the needs of parties to the appeals and the court, especially when we do not know how the provisions found in Schedule 1 to the rules will look in the future. An important element of the scheme is that we want to work with insurers to ensure that it operates well for all parties. Removing the flexibility about appeals would endanger that aim.
Some concern was expressed in Committee that the provision in Scotland is somehow stronger than the provision which applies in England and Wales. I hope that I have satisfied your Lordships as to why there is a need for regulations in England and Wales. However, I understand that in Scotland it is simply not necessary to make provision for the Court of Session to remit the matter being looked at by the court to a tribunal; it is part of a court's inherent jurisdiction. So the Scottish rules of court do not deal with the matter at all, nor do they need to. As a consequence, regulating powers are not necessary for Scotland.
I conclude by repeating that there is no question but that a right of appeal will be available in England and Wales to the High Court.
Lord Clement-Jones: My Lords, I thank the Minister for his reply which was extremely clear; indeed, it even amplifies the terms of the letter to which I referred. In making that clear to me, he has effectively answered in the affirmative the question of whether or not it would be possible to have a right of appeal despite the fact that regulations may not be made. Therefore, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Clause 11 [Provision of information]:
[Amendment No. 7 not moved.]
Clause 14 [Regulations governing payments into court, etc.]:
Earl Howe Earl Howe moved Amendment No. 8:
Page 9, leave out lines 19 and 20.
The noble Earl said: My Lords, in speaking to this amendment I should like simply to make one comment. In Committee I raised the issue of payments into court because it seemed to me that Clause 14(2) of the Bill was saying that regulations would treat all payments into court as though they were compensation; in other words, all payments into court would trigger the 14-day period within which the NHS charges had to be collected. However, I now understand that that is not the case. Indeed, I am grateful once again to the noble Baroness for what she said in her letter about this matter.
I now realise that the regulations which will be brought forward will distinguish between instances where a payment into court does constitute a compensation payment and instances where it does not.
Having said that, I should like simply to add that I am entirely content. We await perusal of the terms of the regulations when they emerge. I beg to move.
Lord Clement-Jones: My Lords, I follow the noble Earl in thanking the Ministers for the letter on this subject. I am very impressed by the sheer ingenuity displayed within the Department in terms of their approach to the payments into court. We had quite a discussion in committee about the whole issue and it was a little difficult to see quite how regulations would bite on payments into court. This does clarify it and it is reassuring that it will be enshrined in this level of detail in the regulations. On that basis I would agree that these amendments are unnecessary.
Lord Hunt of Kings Heath: My Lords, perhaps I may simply thank the noble Earl and the noble Lord for their comments. These possibly quite complicated matters will be covered in the regulations.
Earl Howe: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]

Business
Baroness Amos: My Lords, before we move to the Statement on events in Uganda I would like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

Uganda
4 p.m.
Baroness Symons of Vernham Dean: My Lords, with the leave of the House I will now repeat a Statement on Uganda which is being made in another place by my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs.
"Madam Speaker, with permission I will make a Statement on the recent kidnappings in Uganda.
"I must first say to the House that these events occurred in a remote part of Uganda and we do not yet have official corroboration of the most recent developments. We will of course make further public statements as we receive confirmation, but the House will wish to hear what is known so far.
"Yesterday morning 14 tourists, including six British nationals, were abducted from Bwindi Impenetrable National Park in the Kisoro District of Uganda. In addition to the British nationals, those abducted included US, New Zealand, Canadian, Australian and Swiss nationals. Several others who were present at the time of the attack, including one British citizen, managed to avoid capture. Those who
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did so returned to Kampala last night, where they were all debriefed and offered support by the British High Commission.
"As soon as we learned of the abductions we were in immediate touch with the Ugandan authorities. Our High Commissioner told the Ugandan Foreign Minister that we expected every effort to be made to achieve the rapid and safe return of those abducted. He made clear that there should be no intervention which might put lives at risk. The Foreign Minister gave us that assurance, and undertook to keep us fully informed. Two members of the High Commission travelled to the area to liaise with the local authorities.
"This morning we received reports that some of the hostages had been killed, but that others had been rescued. I regret to inform the House that our present information is that four of the six British nationals were among those who were killed. The whole House will wish to join with me in expressing our deepest sympathies to their relatives and families.
"We are seeking urgent clarification from the Ugandan authorities of the circumstances in which these deaths took place. It is not yet clear whether the Ugandan military intervened directly, but if that is confirmed we will want an immediate explanation of how this happened despite the assurances we were given yesterday.
"From our interviews with those who escaped we believe that the abductors were a rebel group opposed to the present Government of Rwanda, and operating from over the border in the Democratic Republic of Congo. This is the first such incident in Uganda, although last August the same rebel group seized a number of tourists, including one British dual national, who had strayed over the border into the Democratic Republic.
"Our travel advice for Uganda was last updated on 19th February. It warned:
'Rebels are periodically active in Uganda/Rwanda/Congo border areas around Kisoro District. Although the situation is currently peaceful, it can change quickly'.
"Yesterday, in the light of these kidnaps, we revised our travel advice to warn against all travel to these border areas.
"My honourable friend the Minister of State for Africa has just returned from an extended trip to nine countries involved in the conflict in the Democratic Republic of Congo. In each of them he pressed the need for a negotiated settlement and underlined the willingness of the United Kingdom to do all we can, both in the European Union and the Security Council, to support such negotiations. This latest tragedy demonstrates the distressing human cost of that continuing conflict and the urgent need for a settlement."
My Lords, that concludes the Statement.
4.4 p.m.
Lord Moynihan: My Lords, I thank the Minister for repeating the Statement made in another place and I should like to associate these Benches with the Government's sense of shock and outrage at the tragic

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outcome of this unprovoked attack on British tourists in Uganda. Our first thoughts must go to the families of those involved who have been anxiously awaiting news about their loved ones. To the families of the victims we extend our deepest sympathy.
It seems that history has repeated itself as the tragedy in Yemen is now mirrored by events in Uganda. There still remains much uncertainty about the exact chain of events which led to these tragic deaths. I am sure that the Minister will agree that it is vital that this uncertainty is cleared up as soon as possible for the sake of all those involved.
Can the Minister give an assurance that when our High Commissioner saw the Ugandan Minister of State yesterday he made it clear that above all the Government sought a peaceful end to the hostage affair? I note what the Foreign Secretary has said in his Statement, but perhaps the noble Baroness the Minister could elaborate as to whether he stressed the importance of mediation and the importance of avoiding a rescue attempt which could be botched and which could cost the lives of innocent men and women. Were offers to mediate made and what co-operation was asked for or received from other western diplomatic posts? Can the Minister say how the French authorities, through their deputy ambassador, Anne Peltier, were apparently able to negotiate the release of all the French hostages and some Australians? Can the Minister confirm that a member of the High Commission staff, together with Ugandan officials and American colleagues, will be flying to the scene to ascertain exactly what happened and to establish the exact chain of events which led to the death of the tourists? Does the Minister agree that the reports that the British and American tourists were deliberately singled out for mistreatment by their captors are extremely disturbing?
I totally understand the position facing the Minister and the Government in terms of details available to the Government at this stage, but is the Minister in a position to be able to confirm these reports and can she shed light on what motivated the Hutu rebels in this way?
I am grateful to the Minister for outlining the Foreign Office's travel advice. Keith Betton of the Association of British Travel Agents has said that, while the Foreign Office advised people of the potential dangers, he felt that the advice was not clear and referred to armed robberies and hi-jackings rather than to abductions. Of course, although those who travel to dangerous places do so at their own risk, I am sure that the Minister would agree that they must be in no doubt from the Foreign Office's advice that the regions which they are visiting are potentially hazardous. However, given the recent kidnappings of foreigners which have ended in tragedy in Chechnya, Yemen and now Uganda, does the Minister feel it is timely to review the detail contained within, and indeed the quality of, the Foreign Office's travel advice?
This incident is a stark reminder of the wider theatre of bloodshed in the Great Lakes region of Africa. The conflict there is real and dangerous. Unchecked, it is raging on and threatens to engulf the entire region, denying all Africans who live there any hope of peace and prosperity. It is incumbent upon us to work with those
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governments who share our values in order to help them establish the rule of law and political systems which respect human rights, democratic values and liberty itself.
4.7 p.m.
Lord Redesdale: My Lords, we on these Benches would like to echo the sympathy that is being expressed on all sides of the House to the relatives and families. I would also like to associate those feelings with my noble friend Baroness Williams of Crosby who would have taken this Statement if she could have done.
From the information available it seems to me that the advice given by the FCO was entirely in accordance with the situation that existed at that time. It is extremely difficult to provide information for all parts of Africa and it has been my experience in the past that the FCO has always given a judged and well valued opinion. It is extremely unfortunate that this area has now become unsafe due to the activities of this rebel group.
I hope very much that the Government will express their appreciation of those Ugandan soldiers who were killed in the rescue attempt. Sometimes it is too easy to lay the blame for the deaths of people who are taken hostage at the doors of those who would have rescued them. When we consider the nature of the rebels who took the hostages, it would be extremely unfortunate not to thank them for and recognise the sacrifice the Ugandan soldiers made in trying to rescue the hostages. It is obvious that mediation with this group of rebels is extremely difficult, as they have few political objectives. It seems that this was a well planned and co-ordinated attempt to kill people and to destroy property at the camp. I hope that the one thing this tragedy will have achieved will be to redouble the effort to restore peace to this extremely troubled region of Africa.
4.10 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lords, Lord Moynihan and Lord Redesdale, for their comments. I join with them in expressing sympathy to the families who are caught up in this appalling tragedy. The agony those families must be suffering is compounded by the uncertainty, alas, as to who has been so tragically killed. There is also much uncertainty as regards the exact circumstances in which these appalling events took place. It must be an agonising time for the families until we are able to bring a little more certainty to the position.
The noble Lord, Lord Moynihan, asked me about the way in which our High Commissioner had dealt with this issue with the Ugandan authorities. The High Commissioner stressed to the Ugandan authorities that every effort should be made to secure the rapid and safe return of the hostages. Alas, we have all too sadly in recent weeks had some unhappy experiences with British tourists being taken hostage. I assure your Lordships that our paramount concern in all these incidents is the safety of the British travellers who are caught up in these appalling events. That was made absolutely clear yesterday to the Ugandan authorities. I join with the noble Lord, Lord Redesdale, in acknowledging that others have been killed in trying to secure the safe return of the

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hostages. I say to the noble Lord that we do not have the details of what exactly has happened. There may be a number of conflicting reports. It would be quite wrong for me at this Dispatch Box to make any authoritative statement on what has happened until we are absolutely clear about the details in this case.
The noble Lord, Lord Moynihan, asked about the position of the French. As I understand the position, no French hostages were taken. I believe that a deputy high commissioner from the French post was a tourist at the time. We shall have to get some details on that before I say anything more on the point. I hope that the noble Lord will bear with me until I am able to give him and indeed the House a fuller explanation. That also holds good for the reports that he, and I expect other noble Lords, have seen with regard to the singling out of United States and United Kingdom citizens. It is terribly important that we get some certainty on this. At the front of my mind—I am sure it is at the front of all noble Lords' minds—is the fact that British families are waiting for advice on what has happened. That advice must be accurate.
The noble Lord referred to the travel advice. The travel advice on Uganda was focused on different parts of Uganda. A clear section of the advice referred to the Kisoro district and mentioned the periodic activity of the rebels there. Up until these appalling events occurred, the position was peaceful. However, it was pointed out that this could change quickly. We constantly examine this travel advice. We shall continue to do so in respect of Uganda and indeed other areas which may be affected by this activity.
We held a useful seminar in the Foreign Office last week on the way in which the Foreign Office pulls together travel advice. As I say, that is done on a regular basis. We received some useful indications from members of the travel industry as regards what they would find helpful. We stressed to the travel industry and to those who travel abroad that travel advice is what it says it is; namely, it is advice. That is all we are able to give. There are no guarantees involved in giving advice. I believe that everyone who travels to this remote area does so because it is remote. That is part of its enchantment. There is wildlife to see there which in so many other parts of the world simply does not exist.
I agree strongly with what both the noble Lord, Lord Moynihan, and the noble Lord, Lord Redesdale, said about the absolute importance of focusing every effort—as my honourable friend the Minister of State has done during his recent trip to the area—to try to find a peaceful solution to the appalling conflict that is raging there around the border area and which is spilling over so tragically to involve totally innocent tourists.
4.16 p.m.
Baroness Chalker of Wallasey: My Lords, I rise to support the Minister in what she has said. I apologise for missing the Statement, which I have just read. I am sure the noble Baroness will agree that it is crucial that people realise that all the Foreign Office can ever do is to issue advice, as she has just said. This area has always
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been notoriously uncertain, shall we say? It forms the triangle between what is now the Democratic Republic of the Congo, Rwanda and Uganda.
I, too, express sympathy for the families involved. Having dealt with some of these situations in the past, I can well understand what they must be feeling. However, I urge the Minister—I believe she is inclined to do this—not to make any further announcements until we have some certainty about the situation. This will take time. I have travelled to that area, but not deep into the park, and I know how difficult the communications are. I am quite certain that Michael Cook, the High Commissioner, will do everything he can to resolve this matter as quickly as possible. However, we must be certain about what has happened.
Will the Minister and her colleagues make it quite clear to the British tourist authorities—whoever they are—that at no time can the Foreign Office do more than advise? It is quite wrong to try to hold—as I heard one commentator do—a high commissioner or any of his staff responsible because people entered this region. That is just simply not possible. If one travels to uncertain regions where we know there have been machete wielding Hutu rebels, one runs a risk. It is as simple and as short as that.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Baroness, Lady Chalker, for her support. If I may say so, it is all the more welcome because of her well recognised expertise and knowledge of this part of Africa. I thank her warmly for what she has said. The noble Baroness is right; it is wrong to rush into a judgment at the moment as regards what exactly has happened. For the sake of those who are personally involved and others who are connected with this appalling incident we must discover the truth of what has happened. That is difficult as it is an area where communications are problematic. It is some way from Kampala. The terrain is difficult, as I am sure the noble Baroness knows better than most. Two of our diplomats have travelled there as quickly as they can. I very much hope that they are in the area now. It will, of course, be their primary concern to establish exactly what has happened and to obtain for us the advice that we need to enable us to bring some certainty to those families who are suffering such an agony of uncertainty at the moment.
Lord Wright of Richmond: My Lords, I associate myself entirely with all the sentiments that have been expressed. Does the Minister agree that both diplomatic posts abroad and the consular department in London have a very difficult balance to draw between alarmism and complacency? In these situations it is extremely difficult to avoid retrospective criticism for having just got it wrong. Is the Minister aware that I recently had reason to visit Indonesia from Singapore the day after the United States Government had issued blanket advice not to visit Indonesia to all their citizens? I therefore asked the High Commission in Singapore for our travel

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advice and I was extremely impressed by the detailed care with which the travel advice had been drawn up, as a result of which I visited Indonesia.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord for what he said. I do not want to concentrate too much on travel advice because a human tragedy is being acted out here. While it is important to discuss the role played by the Foreign Office in giving advice, it is of paramount importance at the moment to find out what has happened and to bring certainty to the situation. Of course, there is always a balance to be struck over travel advice—that came out very strongly in our seminar last week. Deaths of British tourists travelling abroad can occur in the safest countries. Sadly, as is well known, there was a death of a British subject on the Champs-Elysées only last year. Our advice is used as a model by many other countries, including France, which send officials to the Foreign Office to see the way in which we draw up our advice. I agree entirely with the noble Lord, Lord Wright, and the noble Baroness, Lady Chalker, that the advice has to be based on facts. It is no good saying afterwards that people should have known things when there was not factual evidence to adduce. Anything else would undermine the value of that advice and people would just dismiss it as too alarmist. We shall continue to work on it and we shall continue to look at the way in which we draw it up, whichever country is concerned. And, of course, at the moment, we shall continue to look at the advice on Uganda very carefully indeed.
Viscount Waverley: My Lords, does the Minister agree that Uganda is generally peaceful and that tourism should not be unduly discouraged in other parts of the country? Uganda is in need of radio communications for outlying areas, and a programme of disarmament and a round table to discuss regional difficulties is an imperative.
Baroness Symons of Vernham Dean: My Lords, we have had to advise against all travel to Uganda's border areas with Rwanda and the Democratic Republic of Congo. There is evidence—we stated this in our advice before the appalling incidents of yesterday—of rebel attacks and road ambushes in the northern districts of Gulu, Kitgrum and the western Nile. Within the past few weeks we have seen some awful bomb attacks in Kampala. Anyone who is thinking of travelling to Uganda would be well advised not only to read the travel advice but to look at the further advice contact points which are mentioned in the travel advice. They should seek advice from the British High Commission if they are going to any of the difficult areas. Establishing proper contact within the country in some of the outlying areas is very important, but I would not wish anything I say at the moment to detract from the importance that we attach to people who are thinking of travelling to this part of the world to think very carefully indeed.
Lord Renton: My Lords, I support what the noble Baroness said. Admittedly, my knowledge of the
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country goes back some years when I had the responsibility on behalf of the United Kingdom Parliament of going there for some time and presenting a gold mace to its national assembly after independence. Is the noble Baroness aware that even in those days it was not a peaceful country? The parts of it which were less disturbed were, nevertheless, subject to tribal rivalries which caused a good deal of trouble then and have done more so since. In those days—and it is still so now—about a third of the country was impenetrable because of tropical forests. The noble Baroness is quite right in stressing the difficulties and potential dangers that there are in going there unless all the circumstances are borne in mind.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord for his support. He is quite right. This is not a peaceful part of the world, which is why my right honourable friend the Prime Minister asked my honourable friend Mr. Lloyd to go to the area and travel through the key countries involved in the conflict. Mr. Lloyd has just returned from an extensive tour of the region. He saw not only the key leaders of the countries concerned but also the secretary-general of the Organisation of African Unity. Mr. Lloyd underlined our commitment to a peaceful solution and our readiness to use whatever support we can through the UN, the OAU and the EU to help secure a negotiated settlement to this difficult conflict.
Lord Avebury: My Lords, is not the presence of these rebels in that part of Zambia a product of the disorder in the Democratic Republic of Congo? Does the Minister agree that her honourable friend Mr. Tony Lloyd is to be congratulated on the arduous shuttle he has undertaken to the regional capitals in order to see what can be done to sort out the problem so that peace can be extended not only to the DRC but to the neighbouring countries affected by the conflict? Can she say whether her honourable friend achieved a result in terms of persuading neighbouring powers such as Angola, Zimbabwe and Namibia not to participate in the fighting in the DRC, and whether during the short stop-over he had in Addis he spoke to the secretary general of the OAU and whether that organisation has any measures of conflict resolution which it could apply in this case?
Baroness Symons of Vernham Dean: My Lords, there are two threads to the noble Lord's points. I join with him in congratulating my honourable friend Mr. Lloyd on his tour through the area in order to do everything he can to help find a solution. The noble Lord asked what results my honourable friend has managed to secure. I hope that the noble Lord will forgive me for a degree of ignorance about this issue. I have spent the morning concentrating on the consular aspects and the difficulties which have been thrown up for the British families involved. My honourable friend has offered the good offices of Her Majesty's Government to both the OAU and, bilaterally, to the countries concerned. He has also offered to see what can be done through the EU to help resolve this appalling

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conflict. If there is anything more helpful I can say on the detail of those offers and how they were received, I shall write to the noble Lord.
The noble Lord said that these appalling incidents are the direct product of what has happened in the DRC. I feel a certain diffidence about confirming that there are any direct linkages. It is important that we establish why this has happened, who are the criminals who took these hostages and what were their motives. Speculating on this at the moment will not help the really dreadful position that the families, who need some certainty, are in.
The Earl of Sandwich: My Lords, some of us on the Cross-Benches would like to be associated with the sympathies being extended to the families. As some one who was in Uganda in October, I should like also to commend the Foreign Office for the advice it gives. I should like particularly to commend the diplomats who went directly to the area. It does not always happen, but it did on this occasion. The noble Baroness said that she does not think she can answer the wider questions, and yet we are not confined to the question of tourism. Does she not agree that the aggression in this case was not directed against foreign tourists but against Uganda? It is only one of many events which have occurred—as the BBC is now reporting—arising from the terrorism of the Interahamwe Hutu guerrillas all along the Zaïre border. Ugandans are facing this situation all the time. Will the noble Baroness also extend sympathy to President Museveni and his government who are doing their utmost to contain this threat without breaching international law?
Baroness Symons of Vernham Dean: My Lords, I thank the noble Earl for his comments and particularly those concerning the British diplomats involved. I am sure that they will leave no stone unturned in trying to discover exactly what happened. I agree with the noble Earl that this appalling business throws up the wider question of the roots of the conflict in that part of the world. I hope to give more detail to the noble Lord, Lord Avebury. If I am able to do so I shall put a copy of my letter to him in the Library of the House.
The noble Earl made the assumption that this is action directed against Uganda. I merely remind him that there are reports, to which the noble Lord, Lord Moynihan, referred, that some nationals were singled out in particular. That would seem to imply that there may be other forces at work here. We have a highly complex situation. We know that it has lasted for a number of years. There are many different countries involved and within them there are different groupings. I do not suppose that there is a single line of argument that can be drawn from all this. We shall certainly do our best to find out exactly what happened, and why, in order to bring certainties to the families. As the noble Earl indicated, we of course extend our sympathy to the Ugandans who, I am sure, are doing everything they can to help us find out why our tourists in the area were treated in such an abominable way.
Baroness Strange: My Lords, my noble friend has already spoken on behalf of the Cross-Benches. I am far
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too new on these Benches to be able to speak on their behalf although I suspect that I do and, indeed, on behalf of the whole House, in saying how enormously grateful we are to the noble Baroness for the very warm and sympathetic way she has handled this horrible question. We ask her to extend to the families of all the victims, if she can, our warm, loving thoughts and prayers at this horrible time.
Baroness Symons of Vernham Dean: My Lords, I do not suppose there is anything that can compensate for the loss of a family member. If anything could, then I am sure that the kind words of the noble Baroness are of comfort to them.
Lord Rowallan: My Lords, does the Minister believe that we are now in the midst of a move by rebel terrorists to kidnapping whereas 10 years ago skyjacking was their usual tactic? Kidnapping now seems to be happening more and more all over the world. Can the Minister say whether it is a general trend and, if so, what the Foreign Office is doing about it?
Baroness Symons of Vernham Dean: My Lords, I caution the House against rushing to any conclusion. The noble Lord is obviously summarising some of the more terrible incidents which have involved not only British tourists but others from the United States, Canada, New Zealand and many other countries. My right honourable friend suggested in another place today that the Foreign Office should now take forward the suggestion made some while ago that we look at the possibility of consultations with experts on the subject of kidnapping. It is a very worrying development. I suspect that there has always been a certain degree of kidnapping taking place in the world. But the motivation for such kidnapping, moving from perhaps the straightforward financial aspect to political motivation, which we have seen demonstrated in some recent instances, is a very worrying development. I do not wish to commit my right honourable friend except to say that I believe the points raised by the noble Lord are worthy of further consideration. If we feel that we need further expert advice I assure the noble Lord that we shall take the appropriate steps.

Youth Justice and Criminal Evidence Bill [H.L.]
4.35 p.m.
Report received.
Clause 1 [Referral of young offenders to youth offender panels]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 1:
Page 1, line 13, after ("sentence") insert ("or a sentence of electronic tagging").
The noble Lord said: My Lords, I hope it will be obvious from the drafting of the amendment that it is intended to leave the court the option to pass a sentence involving electronic tagging on an offender even though it is for a first offence or in the other circumstances

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outlined in the Bill. At the moment the court can pass a custodial sentence for the offence or it can dismiss it. However, in some cases the matter is compulsorily referred to one of the new offender panels.
When we discussed this matter in Committee the Government rejected the idea that electronic tagging might be used by the youth offender panel as part of its monitoring process in making sure that the young offender concerned carries out the terms of the contract. Therefore, if youth offender panels are unable to use that device it should remain open to the court in the first instance before the matter is sent to the panel. I still marginally prefer the idea that the panel should have the option of tagging available, but at the same time I recognise that the Minister had a valid point in saying that it was a restriction of liberty and therefore should be confined to the court rather than be given to a panel of that nature.
It is true that the restrictions which can be placed on an offender by a panel through the contract can include the restriction of liberty at least in the negative sense. So the position is not quite so black and white. For the purposes of this amendment I have accepted that electronic tagging is not available to the panel. Therefore, it seems to me that in appropriate cases, when the law otherwise provides for it, it should be available to the court in the first instance. I beg to move.
The Earl of Mar and Kellie: My Lords, I am surprised that the noble Lord, Lord Cope, has returned to this subject. Electronic tagging is a form of limited house arrest. It has the drawback of not having counselling built into it. In fact, the only contact would be with the monitoring staff of the company which supplies the electronic tagging. I agree that electronic tagging is an alternative to custody, but in that regard when a child is held in custody he or she is certainly going to be surrounded by adults skilled in discussing their future with them. Electronic tagging does not have that effect. In any case, I regard it as unsuitable for first offenders. I wonder why the noble Lord, Lord Cope of Berkeley, is trying to extend the list of exemptions from the wisely few compulsory referral conditions.
Lord Windlesham: My Lords, at earlier stages of the Bill I spoke in support of the referral of young offenders under the age of 18 to youth offender panels. It is a policy that has been widely welcomed both inside and outside this House as a constructive alternative to custody or to other disposals that are currently available to magistrates' courts. But how will the proposed new arrangement work in practice?
During the first day of consideration in Committee, again at the initiative of my noble friend Lord Cope of Berkeley, there was some discussion about the compulsory nature of the referral order which would bring the case before the youth offender panel; that is, the panel to be set up by local youth offending teams.
If we examine the first two clauses of the Bill, as I have done with some care, we see that the drafting is elaborate and not at all easy to follow. Why is that? It is because, providing certain conditions are fulfilled, the
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making of an order is to be mandatory. As a result, many of the conditions are in effect exclusionary. Clause 1(1)(a) states:
"neither the offence nor any associated offence is one for which the sentence is fixed by law".
I shall return to that shortly. If it is such an offence, the young offender is excluded from eligibility for an order. Clause 1(1)(b) states that if the court is proposing to impose a custodial sentence or make a hospital order, the young offender is excluded. The amendment of my noble friend Lord Cope would add a third disposal; namely, a sentence of electronic tagging. We have just heard some well-argued criticism that to do so would add just one more to the existing list, and there may be something in that argument. Clause 1(1)(c) states that the court must not be considering an absolute discharge.
Providing that each of those conditions is satisfied, we then move on, as the magistrates' courts will need to do, to Clause 2. That sets out a second list of requirements to activate a compulsory referral. A young person must have,
"pleaded guilty to the offence and to any associated offence".
He must have had no previous convictions, nor have been bound over to keep the peace or to be of good behaviour. Why is all this necessary? It is necessary because the making of the order is not to be left to the discretion of the court.
In Committee, the noble Lord, Lord Williams of Mostyn, argued, when challenged by my noble friend Lord Campbell of Alloway, that the new order was not a sentence. The Minister said:
"What makes the new referral order different from the ordinary sentence disposition is that its purpose is not a sentence (full stop)".
I pause there. Whether the noble Lord said "full stop" or whether it is a typographical error inserted by Hansard I do not know, but that is what appears in the printed record. He went on:
"Its intended purpose is to ensure that the conviction of the young offender, who has to be a first offender and plead guilty, will trigger on a basis of mandatory obligation an inquiry into the reasons for the offending behaviour. That is the real importance of the youth panel. It is not a sentence in itself; it is the triggering of an inquiry".—[Official Report, 18/1/99; col. 375.]
How does that eloquent reply relate to the wording in the Bill? If we turn to Clause 1(2)(b) we find that if the conditions stated in the earlier sub-paragraphs are satisfied,
"the court shall sentence the offender for the offence by ordering him to be referred to a youth offender panel".
Such action may or may not trigger the subsequent series of events to which the noble Lord referred. However, the wording in what will become the statute, unless it is changed between now and the Bill becoming law, is that "the court shall sentence". If it was intended that the court should make an order, the wording could have been that the court "shall make an order", or simply that the court "should order" the offender to be referred to a youth offender panel.
I hope I am not making too much of a meal of this matter by attaching some broader reflections to the narrower amendment moved by my noble friend

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Lord Cope. I do so because there is a dangerous trend in criminal policy at present—the most dangerous of all trends in my opinion—towards mandatory sentencing.
For many years, the only sentence fixed by law, which is referred to as one of the conditions precedent in Clause 1(1)(a), was the mandatory sentence of life imprisonment on conviction for murder. But that is no longer the case. As noble Lords will be aware, the Crime (Sentences) Act 1997 authorised three new categories of criminal offence which would attract mandatory sentences: repeat offences of violence, for which there is a mandatory sentence of life imprisonment on second convictions; serious drug offences, for which, on third conviction, there is a mandatory sentence of seven years; and repeat offences of domestic burglary for which there is a mandatory sentence of three years on third conviction. The first two were implemented shortly after the general election in 1997, but the third, the mandatory sentence for repeat domestic burglaries was not brought into force. Many people inside and outside the Prison Service believed that it never would be implemented and that the new Government were understandably being cautious in considering repeal. That is now not going to happen. Totally unexpectedly, in January this year, it was announced that a mandatory sentence for repeat offences of burglary would be implemented, and we await a commencement order to that effect before long.
My reason for speaking at some length on this issue is that I am convinced, and I am not alone in this, that mandatory sentencing is fundamentally wrong. I should be very reluctant to see any extension, although it may seem a trivial matter in the context of this Bill on the treatment of young offenders. Any extension of mandatory sentencing has to be scrutinised in a wider context.
4.45 p.m.
Lord Renton: My Lords, we are indebted to my noble friend Lord Windlesham for his rather full but very relevant comments on the use of the word "sentence" in Clause 1. One asks oneself: when is a sentence not a sentence? It is when the court has not been required to decide the ultimate fate so far as treatment for a criminal act by the offender is concerned. Although my noble friend's comments go well beyond the scope of the amendment, they refer to a matter which should be put right and which could be put right at Third Reading. I hope that the noble Lord, Lord Williams of Mostyn, will bear that possibility in mind.
Having mentioned the noble Lord, perhaps I may express my thanks and say how impressed I am by the lengthy letters he has sent to noble Lords about various matters which were raised at an earlier stage of the Bill and which he promised to consider.
Viscount Brentford: My Lords, I, too, thank the noble Lord for his letters, which were gratefully received. I believe that Clause I would be improved if it included the concept of sentencing. That is a new thought and I look forward to hearing the Minister's comments on it.
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Turning to Amendment No. 1, I wonder what kind of offences my noble friend Lord Cope has in mind for which electronic tagging would be appropriate. My view is that the more cases that can be remitted to the panel, the better for these young offenders. I should not like the existence of an option of electronic tagging to result in offenders not being referred to a panel. On the other hand, in cases of offences where a custodial sentence would be awarded and where a panel would not be involved, I should be happier if a sentence of electronic tagging could be awarded instead of a custodial sentence. I should be interested to know what kind of offences would be appropriate for a sentence of electronic tagging rather than a custodial sentence.
Lord Campbell of Alloway: My Lords, I have been in this arena before and I have referred to my abhorrence of mandatory sentencing. I received the answer that it was not a sentence anyway. Having looked at the Bill, that argument does not, with respect, seem wholly viable. I return to the matter because I so much agree with everything said by my noble friends Lord Windlesham and Lord Renton. This is a serious problem. One reverts to the point, which the Government will not accept, that the sentence should be left to the discretion of the magistrates and not be the subject matter of a mandatory penal regime. There is no reasoned answer to that. The process of leisurely, constructive debate, which the noble Lord, Lord Williams, always entertained with such grace and charm, has come to an end. His brief says, in effect, "This is what we are going to do, and we are going to do it because we want to." We have driven into a cul-de-sac. The only way out is that suggested by my noble friend, Lord Renton, with his years of experience. We should return to the matter at Third Reading, try to put it straight and do away with the mass of verbiage in Clause 1(1) and (2) which is wholly unnecessary. Of course, it is necessary to keep the substance of the structure, but it does not have to be so complex and circumscribed with conditions. This is a matter for the discretion of the magistrates. We are in a cul-de-sac and can only seek to bale out of the vehicle and walk our own ways, unless the matter can be dealt with at Third Reading.
Lord Thomas of Gresford: The noble Lord, Lord Windlesham, has helpfully widened slightly the scope of the amendment, which deals with electronic tagging, in an important respect. At Second Reading I complained about the lack of flexibility shown in the provisions for youth offender panels and referral orders. Your Lordships have already pointed out that the sentence is mandatory, but it is mandatory in extremely limited circumstances; namely, where a person is before the court who has pleaded guilty, who has never been convicted previously and who has never been bound over in criminal proceedings previously. That would exclude persons who were subjected to mandatory sentencing for burglary, drug offences or rape, because those are repeat offences and consequently would not come within the scope of these provisions.

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My complaint is the lack of flexibility and the imposition of a mandatory referral under the Bill. I believe that this is a matter that must be dealt with at Third Reading.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I do not treat myself to reading old copies of Hansard, but I have a fairly clear recollection, first, that I did not say "full stop" and, secondly, that what I was saying, in answer to the reasoned points put by the noble Lord, Lord Campbell of Alloway, was that this was not a sentence in the conventional sense. I invite noble Lords, not least the noble Lord, Lord Windlesham, to turn over from page 1 to page 2 where one sees abundant support for what I was—I dare say fallibly—trying to suggest. We find there:
"the court may sentence the offender for the offence by ordering him to be referred to a youth offender panel".
So one has the words,
"ordering him to be referred",
in the Bill itself.
On a more fundamental matter, I entirely understand the point of principle which has been referred to by four noble Lords; namely, what is claimed to be the objectionable aspect of mandatory sentences. I respectfully agree with what the noble Lord, Lord Campbell of Alloway, said. If that is the argument of principle, this is not the amendment to attach it to. This amendment gives a further alternative by way of tagging.
On a point of drafting, there is no such thing as a sentence of electronic tagging, so the amendment would be defective. But that is not the fundamental point, of course.
Coming to the general points about mandatory sentences, life imprisonment for murder remains the only sentence fixed by law. The provision in Section 2 of the Crime (Sentences) Act 1997 is not fixed by law because it is possible for the court, in exceptional circumstances, not to impose the sentence. The same applies to Sections 3 and 4. I do no more than simply point to them; that is the fact.
The noble Lord, Lord Campbell of Alloway, is right. We have a difference of approach. He said that we were driving the vehicle up a cul-de-sac and we ought to bale out. I am not sure that I want to follow that advice, for fear of damage to neighbouring houses. I believe I have made it plain that in the policy we have arrived at we are looking to a fundamental shift in the way the youth court deals with young, first-time offenders. One sees this not only on page 2 of the Bill but also at the bottom of page 1 where Clause 1(2)(b) states:
"the court shall sentence the offender … by ordering him to be referred to a youth offender panel".
It is our policy conclusion—I cannot put it more gracefully because we have reached that conclusion and we intend, unless voted down, to stick to it—that, except where a custodial sentence is imposed or where there is an absolute discharge, all offenders within the category, which, as the noble Lord, Lord Thomas of Gresford,
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rightly said, is a limited category, should have the benefit of being referred in the way that the Bill provides. The only exceptions are absolute discharge or custody. Plainly, in some cases custody will be necessary, and there may well be cases in which absolute discharge is the appropriate outcome. We do not believe that there is any persuasive or compelling argument to allow curfew orders to be used in the same way. At the moment they are being trialled. They have been trialled since 1995 for offenders aged 16 and over. The power in respect of 10 to 15 year-olds has been trialled since the beginning of last year. Those trials will continue until June of this year. No decision has been made on the extension of those powers nationally. With the greatest respect to the point of the amendment—I put on one side the infelicity of drafting—we do not believe that the point of the sentence should be varied in the way suggested by the noble Lord. We want referral, which means an in-depth consideration at an early stage of an offender within that limited category. Effectively, that means a first-time offender who has pleaded guilty. Experience demonstrates that early intervention can be effective. We do not want it to be an option or something that can be considered. Except in the circumstances of custody or absolute discharge, we want the court to sentence by ordering referral to the youth panel.
I have listened carefully to the arguments that have been put forward. I understand the points of principal difference. As the noble Lord, Lord Campbell of Alloway implies, the probability is that we shall be unable to agree. I hope that I have put that as tactfully as I may. I cannot see any possibility of agreement, unless noble Lords are wholly persuaded by the case that I have put forward.
5 p.m.
Lord Cope of Berkeley: My Lords, this has turned into a rather wider debate than my proposed amendment. I am grateful to my noble friend Lord Windlesham for causing that widening. I apologise for the infelicitous nature of the drafting of the amendment. However, the noble Lord was kind enough not to oppose the amendment solely on those grounds. In response to my noble friend Lord Brentford, I view curfew orders—tagging—as an alternative to custody rather than as an alternative to referral to a panel, although obviously there will be marginal cases in which if the court has flexibility the decision will be based on one of the three options, or any two of them. However, in view of the drafting it is unwise to pursue this amendment too far.
But we are still in a position in which curfew orders are being trialled. Trials have recently been extended to other categories, and the question as to whether or not they will be of great use has not yet been settled. But for certain categories of offenders this Bill rules them out before the trial of the curfew orders has been completed. That arises because of the compulsory nature of this provision in certain circumstances such as those explained by the noble Lord, Lord Thomas. I argued against compulsion at Committee stage. Perhaps we should return to that argument since it is the underlying one.

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As to whether a referral of this kind is or is not a sentence, I cannot put my finger on the particular passage in Hansard but my recollection is that the Minister said rather later in the Committee stage that it could be regarded as a sentence if one so wished. Whatever the legal niceties of the wording, I believe that offenders will regard being sent to a panel that requires them to have to pay money—admittedly in reparation rather than by way of an ordinary fine, but they still have to pay money—as a sentence. Alternatively—perhaps in some cases as well—they will be confined to their homes for part of the day and be subject to a curfew, whether or not an electronic tag is attached. For that matter, they must avoid going to other places. All of these matters are available as parts of the contract. They are in the nature of a sentence and will be seen by offenders as such. Whatever the legal niceties, these will be regarded as sentences by the public at large, even if they are not viewed that way by legal minds or the courts themselves. However, I seek leave to withdraw Amendment No. 1.
Amendment, by leave, withdrawn.
Clause 2 [The referral conditions]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 2:
Page 2, line 12, leave out from ("conditions") to end of line 19 and insert ("shall be such conditions as are set out in regulations made under subsection (3).").
The noble Lord said: My Lords, I beg to move Amendment No. 2. Contrary to the suggested groupings, it may be wise to consider also Amendment No. 3 because that is consequential on Amendment No. 2. As we discussed in relation to the previous amendment, I wish to leave it to the discretion of magistrates, or the Crown Court in some cases, whether to impose the new referral in various cases. However, the Minister does not really trust magistrates in this respect and wants an element of compulsion. This amendment has a purpose similar to that of my more radical amendment moved in Committee, but it does not go so far.
The amendment provides that there should not be an automatic referral in the first place under the Bill but allows the Secretary of State, in pursuance of his order-making power, to introduce compulsory automatic referral at a later stage. I believe that that would permit a more gradual introduction of the compulsory element rather than to start with that element on the day that the Bill becomes an Act. I believe that it is desirable to start the compulsory element in a gradual way, if it is to start at all, rather than write it in firmly on day one. We all know that the Secretary of State has power to vary these matters and to move offenders with certain characteristics from "discretionary" to "compulsory" or, for that matter, in the opposite direction. I suggest that the whole of the compulsory part of it should be introduced in a more gradual way. Amendment No. 3 widens the definition of "discretionary" to include all of the guilty pleas in the early stages as part of the re-writing of the Bill in this respect. I beg to move.
Lord Williams of Mostyn: My Lords, I shall follow the example of the noble Lord and speak to Amendments Nos. 2 and 3 together. I deal first with Amendment No. 2. This amendment would remove the compulsory referral conditions from the face of the Bill. As the noble Lord indicated, it introduces a power for
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the Secretary of State to set compulsory conditions by way of regulations. The flaw here is that Clause 2(3) provides the Secretary of State with the power to alter the conditions set out in Clause 2(1), but this amendment removes those conditions from the clause. Therefore one would be left with a provision which might be regarded as undesirable. We would have in the Bill the power to amend compulsory referral conditions without any compulsory conditions to be amended. I do not think that that would be a useful step forward. That is an important point. It is not simply cosmetic drafting.
I do not think that I can expand on what I said in the quite lengthy debate on the first amendment. We have deliberately targeted this new disposal at the group of offenders we consider most likely to benefit: young, first time offenders, pleading guilty. We believe that we should limit it in that way. We want to direct resources effectively to tackle offending behaviour. That focus has been deliberately chosen, we believe rightly, to fall on first time offenders to have early intervention as soon as possible to break the cycle of offending behaviour.
Amendment No. 3 would have little practical effect, but it would add further to the words in the Bill which have already been criticised as not entirely clear—although I do not accept that. At present the Bill allows the court some discretion to make a referral order where the compulsory referral conditions have not been met. They are specific circumstances which are set out in the Bill.
The court has a discretionary power to make a referral order when dealing with a young person charged with multiple associated offences and entering not guilty pleas on one or more of them provided he enters a guilty plea on at least one of them.
The noble Lord's amendment would take from the Bill the fact that not guilty pleas can be entered and a referral order made under the discretionary referral conditions. It would not alter the power to make orders in such cases since it would only require that the young person plead guilty to one or more offence without ruling out the possibility of pleading not guilty to any other associated offences.
The only consequence of Amendment No. 3 that I can foresee is a degree of confusion created by doubt as to whether not guilty pleas do or do not preclude a discretionary referral order. I am convinced (for what that is worth) that the present drafting is preferable to the alternative formulation proposed in Amendment No. 3.
Lord Cope of Berkeley: My Lords, Amendment No. 3, which I had thought consequential upon Amendment No. 2, brought out a fuller response than I had anticipated. If one were altering the Bill as proposed in Amendment No. 2 it seemed to me essential to alter the wording of subsection (2) to make clear that even though it was not compulsory for the offender to plead guilty to one of the offences nevertheless he could be referred.
The Minister also said that I should have put forward a consequential amendment to subsection (3). I take into account the legal advice that he was kind enough to give

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me. However, it does not seem to me that the amendment is all that faulty. Subsection (3) states:
"The Secretary of State may by regulations make such amendments of this section as he considers appropriate for altering in any way the description of offenders".
The description of offenders which would remain in the Bill if my amendment were carried would provide that the compulsory referral conditions,
"shall be such conditions as are set out in regulations".
Perhaps the drafting is somewhat repetitive and no doubt could be improved if the Minister were prepared to accept the spirit of the amendment. However, clearly he is not so prepared because he wants to keep the compulsion inherent in the Bill and in the scheme. We have already suggested that compulsion is a matter to which we may wish to return. But for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 4:
Page 2, line 33, after ("section") insert ("or of the age limit in section 1(1)").
The noble Lord said: My Lords, the amendment makes clear that the Secretary of State could vary the conditions for compulsory or discretionary referral to include an age limit.
At present the age limit occurs in Clause 1(1) and is not able to be altered by regulations, as are all the other conditions. Therefore all the conditions must apply to a person under 18. It is possible, perhaps likely, that in future the panels may work differently for younger offenders—perhaps those under 16—than for older offenders. The Secretary of State may wish to make referrals compulsory in more cases of those under 16, or some other age. Alternatively, he may wish to remove some of that age limit from the compulsion element.
The amendment seeks greater flexibility with regard to age subject to the fact that the Secretary of State will have to make regulations which would be subject to the affirmative procedure before Parliament. I beg to move.
5.15 p.m.
Lord Williams of Mostyn: My Lords, the referral order is intended to be targeted at the group we think it is most likely to benefit; namely, first time offenders aged 10 to 17. That is why the Bill makes it plain in the Long Title—it refers to the referral of offenders under 18—and in the conditions for making a referral order, to which noble Lords have referred, that it is only available for those under the age of 18.
We are expanding the principles of restorative justice into the youth court. We believe that that is the proper approach in the Bill. We think that young people early in their criminal careers are more likely to respond positively to the panel approach and to be successfully diverted from crime, as I indicated earlier today.
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One could not manage the referral order in the way in which we envisage it in terms of adults since the youth offender panel will be organised and serviced by the local youth offender team. I take the noble Lord's point that there may come a time on some other legislative occasion when one might wish to extend that opportunity to adults, but in its Long Title and structure, the Bill is deliberately focused on those who are not over the age of 18.
Lord Cope of Berkeley: My Lords, I am not clear from what the Minister said whether the Secretary of State will have the power to have different conditions for different groups of young offenders under the age of 18—those under 16, or perhaps over 16. Can the Minister indicate whether the Secretary of State will have the power to differentiate within the under-18 age group?
I understand the Minister's argument that he does not wish the youth offender panels to have to deal with those over 18. We had a discussion earlier as to what happens where the offence is committed when the offender is under 18 but during the passage of perhaps a considerable number of months between the commission of the offence and coming to trial the offender passes his 18th birthday and the apparatus of youth panels becomes impossible to use. However, I understand the Minister's assertion that we should not extend this machinery to those over 18. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Making of referral orders: attendance of parents etc.]:
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before calling Amendment No. 5, I should inform your Lordships that if it is agreed to, I cannot call Amendment No. 6.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 5:
Page 4, line 45, leave out from beginning to ("to") in line 2 on page 5 and insert ("may make an order requiring—

(a) the appropriate person, or

(b) in a case where there are two or more appropriate persons, any one or more of them,").

The noble Lord said: My Lords, in this substantial group of amendments are Amendments Nos. 5 to 16. Some of the amendments are in the name of the noble Lord, Lord Cope of Berkeley, and some in my name.
Perhaps I may summarise the purpose of the government amendments. Your Lordships will remember that the noble Lord, Lord Cope, raised the interesting question of whether or not—I think I summarise fairly—the attendance of both parents should he seriously considered where appropriate. I undertook to consider the matter and that is the genesis of the amendments to which I am speaking now.
I had some reservations, which your Lordships may remember, about the practical difficulties of insisting in

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every case that both parents or guardians should be present. It was helpful that the noble Lord, Lord Cope, raised the question. I agreed that we should be encouraging parents to be involved wherever possible and that it would be helpful for the courts to have discretion to order the attendance of both parents where it seemed reasonable and practical to do so. Therefore, the amendments to Clause 5 introduce that discretion.
It will not always be practical for both parents to attend. There may be other family or employment commitments. There will be some cases where it will be feasible, desirable and practical for both parents to attend to support their child through the youth offender panel experience. I repeat my gratitude to the noble Lord for raising the issue. We have reached the conclusion that it is helpful, if the court sees the presence of both parents as positive and constructive, that the court should have the power to order their attendance. That is the purpose of the amendments in my name. That is in relation to those offenders who are under 16, where parental attendance is always required, and for 17 year-olds where parental attendance is considered appropriate.
Clause 5 also addresses the position of those young offenders for whom parental responsibility is with the local authority. In those cases, plainly, the local authority representative should be the key individual required to attend meetings. But in those cases where responsibility has been vested in the local authority but the young person is still living at home with the parent or guardian, the court may well decide that the presence of the parent or guardian would also be of value. Therefore, the effect of the amendments is to include discretion for the courts to order the presence of the parent or guardian in addition to the local authority representative.
I believe that the amendments in the name of the noble Lord. Lord Cope, and the noble Viscount, Lord Astor, are set to achieve the same ends. I do not consider that there is a difference between us. We sought to reflect the spirit of our previous discussion in Committee in what we believe to be properly drafted form.
There is still a concern in my mind about the definition of an offender for whom the local authority may have parental responsibility. We are looking at that as a matter of urgency. I merely indicate that a small amendment may be required with which I shall deal on Third Reading, if that is agreeable to your Lordships. I beg to move.
Viscount Astor: My Lords, we are grateful to the Minister for bringing forward these amendments. It was an issue which I, rather than my noble friend, raised in Committee, although the amendments were in the names of both of us. I am extremely grateful to the Minister for taking on board our concerns. It is important that if both parents are able to attend, they should be encouraged to do so. The government amendments put forward today allow that to happen. However, they allow rather than encourage it to happen. It may be that after Royal Assent
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the Home Office will issue guidance to the courts in relation to the legislation. If that is so, perhaps it will be possible to include in that guidance encouragement to the courts to have both parents present. The amendment allows it rather than encourages it. Perhaps the Minister will consider that point.
The Minister has accepted the matters which we raised. I should be grateful if he will respond to my point about the guidance. However, we shall certainly accept the government amendments and I shall not move Amendments Nos. 6, 10, 11 and 13.
The Earl of Mar and Kellie: My Lords, at the risk of returning to the debate about when is a sentence not a sentence, in criminal justice social work practice it was routine to explain to offenders who had been placed on orders such as probation and community service orders that they had not been convicted. It was explained that they had not been convicted because they could be resentenced in the event of a breach of the order.
Lord Swinfen: My Lords, there is a small point which is worrying me. Does "parent" include step-parent? Sometimes, in some families, the step-parent has greater responsibility for, and influence over, a child than a divorced parent. There may need to be a slight adjustment to the Bill at the next stage. It is important that the person who is acting as the parent, who may not legally be the guardian, is the person responsible because sometimes he may have the greatest influence over the child.
Lord Williams of Mostyn: My Lords, I always shudder when small points are raised because they are always the ones for which one has no briefing. My immediate reaction—which I am sure is wrong—is that it probably does include that. However, perhaps I may research that and write to the noble Lord. As always, I shall put a copy in the Library.
I was right, and it is not even my birthday. It is included.
Viscount Astor: My Lords, before the Minister sits down, perhaps he will answer my question about the guidance which his department may issue.
Lord Williams of Mostyn: My Lords, I shall certainly give consideration to including in guidance the points raised by the noble Viscount. We are at a very early stage because the Bill was introduced in this House. However, there is no doubt at all that guidance of one sort or another will be useful and I shall certainly bear in mind what the noble Viscount said.
Viscount Astor: My Lords, I am extremely grateful to the Minister for his reply.
Lord Williams of Mostyn: My Lords, I commend the government amendments to the House.
On Question, amendment agreed to.
[Amendment No. 6 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 7 to 9:
Page 5, line 3, at end insert—
("(1A) Where an offender is under the age of 16 years when a court makes a referral order in his case—

(a) the court shall exercise its power under subsection (1) so as to require at least one appropriate person to attend meetings of the youth offender panel; and

(b) if the offender falls within subsection (5), the person or persons so required to attend those meetings shall be or include a representative of the local authority mentioned in that subsection.").

Page 5, line 4, leave out ("Subsection (1) does") and insert ("Subsections (1) and (1A) do").
Page 5, line 7, leave out from ("(5)") to end of line 9 and insert (", each person who is a parent or guardian of the offender is an "appropriate person" for the purposes of this section.").
On Question, amendments agreed to.
[Amendments Nos. 10 and 11 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 12:
Page 5, line 10, leave out (""the appropriate person" for the purposes of subsection (1) is") and insert (", each of the following is an "appropriate person" for the purposes of this section").
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 14 to 16:
Page 5, line 13, leave out ("or") and insert ("and").
Page 5, line 14, leave out first ("a") and insert ("each").
Page 5, line 14, leave out ("and with whom he") and insert ("with whom the offender").
On Question, amendments agreed to.
5.30 p.m.
Clause 6 [Establishment of panels]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 17:
Page 5, line 40, after ("held") insert ("within 10 days of the making of the order or orders").
The noble Lord said: We now move on to the position where the offender has been sentenced or ordered to be referred to the panel, and the panel is about to start its work. The question the amendment addresses is one which we also discussed in Committee; that is, how soon that work should begin. I suggested then that it should be within 14 days of the sentence being passed. When I say "begin" I mean the time when the panel should have its first meeting and commence its work.
The noble Earl, Lord Mar and Kellie, suggested that that should be within three days. There seemed to be some agreement among Members of the Committee that three days was too short a period and 14 days too long. In the amendment I have therefore suggested 10 days.
I believe it was the Minister who said that three days was too short and 14 days too long. However, there was some agreement for that proposition.
Of course, the first meeting should be as soon as conveniently possible, both for the panel and others concerned. That is why I believe that a time limit would be a good idea. It will take time to set up membership of a panel and fix a time for meetings. Members are likely to be busy people with other things to do than just sit about waiting to be called upon to serve on the panel.
In particular, victims will often need a little time. They do not just have to turn up, but have to consider—sometimes very carefully—whether to confront an offender in such circumstances. They will need time to make the necessary arrangements to attend such meetings. They may also need to take advice and be encouraged to attend. They may be reluctant, immediately after a court case, to confront an offender.
Therefore, it seems to me that a reasonable time limit should be set. As I have said, having been told that 14 days was too long, I propose 10 days. I beg to move.
Lord Dholakia: My Lords, we support the amendment. This addresses precisely the point made in Committee by my noble friend Lord Mar and Kellie. Whenever a youngster has been ordered to appear before a youth panel, it is important that the effect of that panel is not lost on that youngster. Therefore, a time factor is important. The sooner the meeting is held—we are referring to the first meeting in this instance—the more importance will be attached by the youngster to the work it will do. We certainly support the amendment.
The Earl of Mar and Kellie: My Lords, after the hard words spoken as regards Amendment No. 1, perhaps I may say to the noble Lord, Lord Cope, that I certainly agree with him on this amendment.
Lord Williams of Mostyn: The noble Lord, Lord Cope, mentioned that we debated similar amendments. If my memory is right, I believe that the time limits discussed varied from three to 15 days.
I sympathise with the motive behind the amendment. We want youth justice delivered as quickly as possible. That is why, in a slightly different context, we are looking to halve the average time it currently takes to deal with persistent young offenders. I underline the fact that I have a good deal of sympathy with the motive behind the amendment and, indeed, the other amendments which varied as regards time.
Reducing unnecessary delay is not the only issue to consider. It is important that the panel meetings should be properly prepared in order to proceed successfully. The noble Lord, Lord Cope, rightly observed that such preparation may include contact with the victim. That needs to be done without delay but must also be approached sensitively as people differ in their reactions to crimes committed against them.
In Committee I stated that this is the sort of issue in which we want to use pilot schemes, and I repeat that. A number of different timescales have been proposed. I suggest to your Lordships that it is unwise to put a

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particular figure on the Bill. At present, we do not have the experience upon which to reach a soundly-based conclusion. This is exactly the kind of issue that we intend to discuss with those who have relevant professional experience.
Perhaps I may say to the noble Viscount, Lord Astor, that we shall issue guidance in the pilot areas. I suggest that it is best to evaluate the time limits as they appear in the guidance, and as translated into practice in the pilot areas. We will then see, on the basis of practical experience, what time limits are realistic. Once we have carried out that review, it is intended to have national standards to be approved by the youth justice board.
I hope that I have been able to reassure your Lordships. I sympathise with the point behind the amendment. However, at present we do not have the practical experience on which to reach a conclusion. I respectfully suggest that we will be much better informed having seen guidance and pilot schemes in practice.
Lord Cope of Berkeley: My Lords, it is encouraging to have the support of the noble Lord, Lord Dholakia, and the noble Earl, Lord Mar and Kellie, and to have sympathy, at least in principle, from the Minister.
However, the Minister draws attention to the practical difficulties of writing it into the Bill as opposed to the guidance. I believe that point has validity. In the circumstances, I hope that I shall not offend those who spoke in support of the amendment, but I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 18:
Page 6, leave out line 2.
The noble Lord said: My Lords, in moving Amendment No. 18 I shall speak also to Amendment No. 19. There seems to be a little confusion or difficulty in the Bill as regards this matter. Subsection (2) states that the panel is to be constituted in accordance with guidance to be given. On the other hand, subsection (5) permits the Secretary of State to make certain regulations regarding who should serve on the panel. It seems to me that it would be better if all matters regarding constitution of the panel were to be found either in guidance or regulations. I would prefer them to be in regulations.
In Committee we discussed the kind of people who might serve on the panel, in particular, magistrates or policemen as suggested in the original White Paper upon which the Bill is based. Those are the type of matters which may appear in guidance or regulations. They may vary from time to time as experience is gained in the management of such panels and the effects are seen. We all believe that there should be a certain flexibility in this matter; that we should not attempt now to fix in stone, or at least in statute, the constitution of the panels. That is why the Secretary of State has the power to vary
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them. But I would prefer, as the amendment suggests, that the constitution of the panel should be put into regulations. I beg to move.
Lord Williams of Mostyn: My Lords, I do not believe that there is much difference in approach between the noble Lord, Lord Cope, and the Government. We both want to make certain that the individual members of the panels can deal effectively with young offenders and that they are representative of the whole community. Amendments Nos. 18 and 19 seek to make the constitution of panels a matter of regulation rather than guidance.
The Bill already states that each panel shall contain at least three members, of whom one will be a youth offending team member. The constitution of each panel needs to respond to the specific circumstances of the young offender. The pool of panel members therefore needs to encompass a wide range of skills and experience. It will be important to use them flexibly—I agree with the noble Lord, Lord Cope—and to the best effect.
We will have guidance on the constitution of the panels but it will be prohibitive because one needs the flexibility about which the noble Lord spoke. The Bill in its present form allows the Secretary of State to set regulations as to qualifications, experience and any other criteria that people will need to fulfil if they are to become panel members. That is the crucial tool to be used to ensure that panel members are of the right calibre.
I understand the noble Lord's desire to require the Secretary of State to be governed by the word "shall" rather than "may". Perhaps I can indicate, and thus reassure the noble Lord, that we have no intention of allowing panel members to be recruited without setting down clear qualification criteria in the regulations. Thereafter we will have the proper balance between qualification criteria in the regulations—there will not be any recruitment before those are made—and the flexibility on which the noble Lord and I agree in relation to selecting individuals for a specific panel for a specific offender.
Baroness Carnegy of Lour: My Lords, with the leave of the House; I may be forgetting what I heard in Committee and have not had time to look at the Official Report. Can the Minister remind me, and perhaps the House, whether there will be a pool of people known to be available in each area from whom members of the panel can be selected, or whether there will be a fresh search each time the need arises? I am trying to picture how this will work from a pragmatic point of view. Will there be a pool of people suitably qualified according to the definition set out?
Lord Williams of Mostyn: My Lords, yes. There will be a pool of panel members who will have different skills, different experiences and different expertise.

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Each panel also has to have at least three members drawn from that wider pool, so the noble Baroness is quite right.
Lord Cope of Berkeley: My Lords, the Minister set out clearly his view on the matter and stressed to us that regulations will be made before any panels are appointed. That relates to the wording of Amendment No. 19, which seeks to replace "shall" by "may". With the Minister's reassurance I do not intend to press that amendment.
However, I feel that it is better if the maximum concerning the constitution of the panels, including qualifications, is set out in the regulations rather than in guidance. I am not relying wholly on the fact that a parliamentary procedure is necessary in the case of regulations but not in the case of guidance; it is only the negative procedure, in any case, which is the least control that Parliament can be given over the matter.
That is one aspect, but it is better also if the constitution of the panels is a more formal matter than something tucked away in guidance which can be altered at any point by the Secretary of State. It should be a formal matter; it is a formal arrangement which is part of the regime for young offenders. It should therefore be set out in statutory regulations as much as possible. However, the Minister has gone some way towards reassuring me and those who agree with me, including my noble friend. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
5.45 p.m.
Clause 8 [First meeting: agreement of contract with offender]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 20:
Page 7, line 45, leave out ("or otherwise").
The noble Lord said: My Lords, Amendment No. 20 is another modest amendment. It concerns the question of how the panel will ensure that the offender carries out some of the things he is obliged to do. Some of those are set out in Clause 8(2) of the Bill and include making financial reparation. It will be fairly clear whether or not he has done that. But many of the other requirements involve the offender going to a specific place at a specific time—for example, to attend mediation sessions; to carry out work or service; to be at home at times specified in the contract (a sort of curfew); to attend school or another educational establishment, or to attend a place of work.
All those requirements may be part of the contract and at a later stage the panel will have to say, ultimately to the court, whether or not the offender complied with the conditions. However, later on—this is where the amendment comes in—the programme may not provide for the monitoring of the offender's whereabouts,
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whether electronically or otherwise. I have some sympathy with electronic tagging as a means of monitoring an offender's movements in these circumstances. But if we rule out "or otherwise", the panel will not be able to monitor whether or not the offender has carried out any of the requirements. Indeed, taken to the extreme, nobody will be able to monitor whether or not he has carried out his obligations; for example, whether or not he turned up for school. If the teacher were to call the roll it seems to me that the offender would be entitled to say, "You are not entitled to ask me whether or not I am here and, what is more, you are not entitled to write down whether or not I am here". To do so would be to monitor his whereabouts otherwise than by electronic tagging; in other words, by another means.
It seems to me therefore that if we rule out all other means as well as electronic tagging, we are preventing the proper monitoring of whether or not the offender has complied with his obligations. We should therefore delete the words "or otherwise" so that we are only ruling out, by Clause 8(3)(a), the electronic means of monitoring his whereabouts and leaving the others in. I am not sure what "the others" are, apart from calling the roll in school and the equivalent procedures in the other places where he might have to turn up, but the panels need to be able to monitor the whereabouts of the young offender. I beg to move.
The Earl of Mar and Kellie: My Lords, I have some sympathy with the noble Lord, but a meeting with the supervising officer is not monitoring. I believe that the Bill has in mind the type of human monitoring that has been trialled. In that scheme, the offender was monitored either through visits by monitoring staff at home or a previously agreed place, or by telephone. I quite like the scheme, which does not seem to have proceeded beyond trial. It had the merit of some human contact but perhaps one drawback was that the monitoring staff were untrained, so the counselling contact was perhaps not good enough.
Baroness Carnegy of Lour: My Lords, does the Minister consider that Clause 8(2)(i) means that one alternative of the terms of the programme is:
"enabling the offender's compliance with the programme to be supervised and recorded"?
Or is that paragraph supposed to attach to the whole subsection? There is something strange in the wording. When I first read that subsection, I thought it meant that the terms of the programme might be any of those things, which would enable,
"the offender's compliance with the programme to be supervised and recorded".
If that is the case, monitoring is not needed and can be ruled out. If subsection 2(i) is simply one of the considerations, it seems that one has to monitor or there could be misunderstanding in the wording. One has to find out whether the person has been at school or a mediation session. Does the Minister understand the problem?
Lord Williams of Mostyn: My Lords, Clause 8(2) makes it plain that the terms of the programme may include,
"provision for any of the following",
so any of the provisions (a) to (i) can be included.
The noble Lord, Lord Cope, dealt with his stance on electronic tagging. I understand that is outwith the purpose of Amendment No. 20, so I am not being discourteous in failing to deal with electronic tagging.
We included the phrase "electronically or otherwise" in subsection 3(a) to ensure that the legislation will be sufficiently flexible to accommodate advances in technology. Having seen the amendment, I was concerned that the Bill's wording may be too prohibitive in the way that the noble Lord suggests. By precluding the monitoring of the offender's whereabouts by electronic means or otherwise, we may prevent a young offender team member from checking up on a young person, to ascertain whether they are complying with a particular element of his or her contract. We would not want that consequence and it was not our intention. I am most grateful to the noble Lord for tabling the amendment.
If our preliminary view remains, we will be looking to alter the wording and, if necessary, I will put it right on Third Reading. I am grateful to the noble Lord, not for the first time, for raising an issue that we had overlooked, possibly, because we were focusing on electronic monitoring rather than personal monitoring. I undertake to give the matter further careful thought and, if necessary, come back to it on Third Reading.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for his response. I am not sure what technology other than electronic could be pressed into service. Perhaps ultrasound, but that would involve electronics as well. The Minister acknowledges that there is a real if small point here, which he will consider. It could be dealt with by including a definition of "monitoring" that would restrict its meaning, to permit the sort of controls that we both have in mind. In view of the helpful nature of the Minister's reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn: moved Amendment No. 21:
Page 8, line 35, at end insert ("unless it has already expired.").
The noble Lord said: This group includes Amendments Nos. 22, 23, 24 and 26 and has been tabled to clarify the role of the panel and the powers of the court after the referral period has expired.
In Committee, the noble Lord, Lord Cope, was concerned that the courts might be constrained in dealing with a breach of contract if the compliance period expired by the time that the case returned to court. He was understandably concerned that if the courts could only discharge orders in those circumstances, a young offender who failed to co-operate could evade sentencing. I am happy to
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reassure the House that that is not the case. The expiry of the compliance period does not constrain the courts. There is no automatic time bar in the arrangements.
Following the noble Lord's intervention, which I again found helpful, we considered again the panel's role at the end of the compliance period. The Bill sets out the expectation that the final meeting will be held before that period expires. The first amendment to Clause 12 strengthens the arrangement by stipulating that the meeting shall be held before it expires. The duration of the referral period and attendance at panel meetings is ordered by the court.
The amendment of the noble Lord, Lord Cope, would have the opposite effect. I cannot see a compelling reason to do anything other than to encourage the team to operate in the most efficient and timely manner, to ensure that all the business with the young offender is completed within the compliance period. The purpose of the final meeting is to consider the young offender's compliance with the contract. If compliance is satisfactory, the panel has the power to discharge the order. Where it is not, the young offender may be referred back to the court for breach proceedings. There will he cases where the young offender fails to attend that meeting, and non-attendance at a panel meeting is one of the triggers for the panel to return the young person to court.
There may be a good reason for the young person's absence—perhaps ill health—and, in all other respects, the young person may have complied in full with the requirements of the order. It would be a waste of the court's time for the case to be referred back, so I have tabled a further amendment to Clause 12 to make it clear that the panel may, where appropriate, discharge the order in the young person's absence. Written confirmation of that decision will follow, as required in Clause 12(2)(b).
Compliance will not always be so clear, however. The panel may have serious doubts about the reasons for the absence of the young offender from the meeting, and may already have concerns about compliance with the contract terms. While the government amendments will preclude the panel from adjourning and readjourning to prolong their discussion with the young offender, they will not preclude the panel from referring the case back to the jurisdiction of the court for the breach to be considered. Where it is agreed that a breach has taken place, the court retains the power to resentence. This is made clear in the amendment to Schedule 1.
In light of the fact that breach proceedings may take place after the period of the referral order, the amendment to Clause 9 clarifies the position with regard to revocation. It makes clear that where formal revocation takes place after the expiry of the referral order, that does not have the effect of extending the period of the order beyond the original expiry date.
The government amendments have been drafted to deal with the noble Lord's concerns, and I hope that they meet his purpose. I beg to move.
Lord Cope of Berkeley: My Lords, I am rather puzzled by the Government's insistence, reinforced by

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the amendments, that the last meeting of the panel—at which it will take the final decision that an offender has complied with the contract—should take place before the end of the contract period. From memory, I believe that that will be between three and 12 months, and will be set at the time the offender first appears in court. It may end, for example, just after Easter or just after Christmas. Indeed, the only possible or reasonable date upon which to hold the last meeting of the panel falls before the holiday period. Therefore, if it is obliged to be before the end of the contract period, it could actually be quite a long time—some weeks, in some circumstances—before the end of the period. To oblige the panel to make up its mind whether or not the offender has completed all the conditions of the contract over the whole period when there are still some weeks to go seems to me to be unwise.
Ideally, I would want the panels to hold their final meeting on more or less the last day of the period, so that the matter is dealt with promptly. Nevertheless, at the same time, the panels would have the opportunity to see how offenders have behaved during the whole period. If panels are obliged to have such meetings before the time has expired, which seems to me to be the purport of the Government's amendments, they will sometimes have to make a premature decision about the final completion of the offender's terms under the contract.
My amendment would provide that panels could meet after the period has expired. It is perhaps too permissive and it may be that the circumstances in which they would do so should be restricted. However, it does not seem to me to be sufficient just to say that, if necessary, a panel could meet without the young offender concerned being present. If such an offender were available to be present for some reason a day or two after the expiry date, that would seem to me to be perfectly satisfactory and would enable the panel to make a better decision about whether he has complied with the terms of the contract. Therefore, my amendment has a justification over and above the amendments that have been tabled by the Government.
On Question, amendment agreed to.
6 p.m.
Clause 12 [Final meeting]:
[Amendment No. 22 not moved.]
Lord Williams of Mostynmoved Amendments Nos. 23 and 24:
Page 10, line 36, after ("holding") insert (", before the end of that period.").
Page 11, line 6, at end insert—
("( ) Nothing in section 7(2) prevents the panel from making the decision mentioned in subsection (3) in the offender's absence if it appears to the panel to be appropriate to do that instead of exercising either of its powers under section 7(2).
( ) Section 7(2)(a) does not permit the final meeting to be adjourned (or re-adjourned) to a time falling after the end of the compliance period.").
On Question, amendments agreed to.
Schedule 1 [Youth offender panels: further court proceedings]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 25:
Page 45, line 44, at end insert ("; and
(c) where appropriate, may impose an additional sentence in respect of the time of the panel which has been wasted by the behaviour of the offender.").
The noble Lord said: My Lords, we have now moved on to the position where the contract has been completed— or, at least, the contract period has been completed—but the contract itself has not been fully complied with and the offender has, therefore, been referred back to the court for sentencing. As I read the Bill as it stands, the court has to ignore the existence of the panel and what has happened during the period of the contract when deciding what sentence to pass. It has to pass a sentence relevant to the offence and not take into account anything that has happened since that time. I see some logic in that, but it seems to me to be very important that the court should also be able to consider the additional information about the offender which has come to light as a result of his response to the panel and to the contract, to which he agreed; or, for that matter, his refusal to agree to a contract, if he refused.
When the young offender returns to the court the latter is in a position to know more about him as a result of what has happened and should take that into account. Part of the reason for moving this amendment, which would give the court power to impose an additional sentence in respect of the time of the panel which has been wasted by the offender, is to provide some form of assistance to the panel in its work. If my amendment is passed, there would be a bit of a stick behind the purpose of the panel. The offender could not just string the panel along. Some young offenders who will find themselves enmeshed in all this are extremely manipulative. In effect, they will string the panel along to see how long they can get away with it. If they know that, whatever they do, the sentence will be exactly the same as if they had been sentenced in the first place, it seems to me that there will be nothing to deter them from doing exactly what I said. That would be a terrible waste of the panel's time; and we certainly do not want that.
We should bear in mind the fact that some of these cases will have been compulsorily referred to such panels; in other words, if the Bill remains as it is, the magistrates will have no discretion. Such offenders will be compulsorily referred, even if the magistrates suspect that the panel might be wasting its time. If the magistrates prove to be right, there is no way in which the court can allow for that in sentencing. However, I think that there should be, hence the tabling of this amendment. I beg to move.
Lord Dholakia: My Lords, I still fail to see the logic of the precise circumstances that the noble Lord, Lord Cope, has in mind in relation to this amendment. I have sat as a youth court magistrate and I believe that those courts have ample powers to deal with the circumstances that are presented to them. I do not think that one needs any draconian measures. Indeed, there may be special circumstances where the youngsters who

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appear before the youth panels are given a contractual obligation and yet are unable to meet it. I shall give your Lordships an example. If someone is made the subject of a probation order and is unable to meet the requirements of the Probation Service, he will be brought before the court, which has ample power to deal with the situation.
We discussed youth panels earlier. However, there may be borderline cases where, for example, they fail to make a hospital order. There may indeed be other borderline cases where it is right and proper to say that youngsters make use of some of the provision that has been agreed with the youth panel, but that may be very difficult in relation to certain individuals. There may be those who abuse drugs, who are brought before the panel and given a contractual obligation, and yet may not be able to meet it because of the very condition from which they suffer. I do not believe that the courts require additional powers for them. They can take into account the circumstances as presented to them. The powers are there and they can sentence the youngsters accordingly. I cannot support this particular amendment.
Lord Monson: My Lords, before the noble Lord sits down, does he agree that the amendment uses the word "may" and not "must"? I believe that that answers the reservations that he has expressed.
Lord Dholakia: My Lords, I thank the noble Lord for that observation. I wish that I had the same confidence in the ability of all magistrates to distinguish between the two.
Baroness Carnegy of Lour: My Lords, surely the sentencing of a young person is done in the normal way, taking into account how that particular young person is likely to react to a certain sentence. More will be known about how a young person will react to a sentence because of the experience of appearing before the panel, and his reaction to that, than was known before. I should have thought that it would be very difficult for a court not to take that into account to a certain extent. I am not quite sure whether the underlying philosophy—that an attempt should be made to make a referral to the panel before someone finally appears in court—necessarily precludes that. I believe that the Government are a little unwise to assume that it is unnecessary to take account of what has happened during the referral period or, indeed, even to ask about it.
Lord Williams of Mostyn: My Lords, when a young offender breaches the terms of the contract and it is determined that the non-compliance is unreasonable, the court has to consider re-sentencing. I believe that the noble Lord, Lord Dholakia, is right in saying that in those circumstances the court will re-sentence in respect of the original offence with the full range of sentencing powers that they would have had there been no referral order.
This amendment seeks to give the court power to make an additional sentence in respect of the time the panel may have wasted. I do understand the noble Lord's arguments, but I cannot accept his amendment.
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Breach of a referral order is not an offence. It is an indication that the referral order is not working in that case. In the worst cases, when it is plain that there is no prospect of co-operation, we would expect—and I take the point of the noble Lord, Lord Cope of Berkeley, here—that the offender would be brought back to the court with the minimum of delay and the minimum therefore of wasted time on the part of the panel, and we intend to ensure through clear guidance that young offenders are given the minimum opportunity to manipulate the panel or give the panel the runaround, as the noble Lord, Lord Cope, indicated.
It is important to bear in mind that the breach of the referral order is not the offence for which the offender is being sentenced. The offender is being sentenced for the original offence for which the referral order was made and has then failed. We do not think therefore that what the noble Lord, Lord Cope, proposes is acceptable, but I stress that we intend to have clear guidance about prompt returns in cases of failure to co-operate.
Lord Cope of Berkeley: My Lords, I should first like to reassure the noble Lord, Lord Dholakia, that I was not proposing that it should be automatic that an additional sentence would be imposed. I am only proposing that the court should have the opportunity to do so. As I read the Bill, the court at the moment cannot take into account even the most obstructive and difficult behaviour of the offender towards the panel. The Minister seemed to be confirming this by saying very firmly that breach of a referral order is not an offence in itself and should not lead presumably, therefore, to any alteration of the sentence which is imposed on the young offender. However, I am grateful to the Minister for assuring us all that the guidance will provide for the minimum of manipulation (if that can be done), and in particular for the offender to be brought back to court quickly if that seems to be the way in which it is all going. Such a provision would be less necessary if there were not compulsory provisions on the magistrates, but that, as we have already said, is an argument for another time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 26:
Page 45, line 46, at end insert ("; but those powers are exercisable even if, in a case where a contract has taken effect under section 8, the period for which the contract has effect has expired (whether before or after the referral of the offender back to the court).").
On Question, amendment agreed to.
Clause 16 [Witnesses eligible for assistance on grounds of age or incapacity]:
6.15 p.m.
Lord Swinfen Lord Swinfen moved Amendment No. 27:
Page 12, line 27, leave out ("17") and insert ("18").
The noble Lord said: My Lords, this amendment is in the name of the noble Lord, Lord Rix, as well as my name. Unfortunately the noble Lord is not well and is

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unable to be here this evening, but I am sure that he would have moved the amendment much better than I can.
At Committee stage a similar amendment was introduced by the noble Lord, Lord Dholakia. The noble Lord, Lord Rix, supported it on the ground that this new legislation ought to be in line with the age limit of children to be found in the 1989 Children Act. I also supported this amendment and noted the inconsistency between the Long Title of the Bill, which refers to offenders under 18, and this clause, which now deals with witnesses and which stipulates 17 as the upper limit of childhood.
The Minister responded positively in discussion at that stage, indicating that protection would be afforded to 17 year-olds with disabilities and to 17 year-olds in circumstances in which there were legitimate concerns of intimidation. However, I am still concerned about the majority of 17 year-olds which will include some with mild learning disabilities who do not fall into either of these categories, yet may be considered vulnerable solely on account of age. It seems to me that their position remains ambiguous unless this amendment is accepted. In my view 17 year-olds should be considered children. I beg to move.
Lord Renton: My Lords, I would like to support my noble friend on this amendment. We are getting into a rather strange position and I am not blaming the Government. It is partly due to the previous legislation. When we discussed the difference between Northern Ireland law and the law of England and Wales as regards the definition of youth—and I am grateful to the noble Lord, Lord Williams of Mostyn, for the long letter that he wrote to me on the 25th February, explaining all this and giving the background—we found that the age limit for youth in Northern Ireland is 17, whereas in England and Wales it is 18.
Here we have the question of what I call delicate witnesses suffering from mental disorder, impairment of intelligence and physical disability, and there we are referring to the age of 17. I feel that it is somehow very artificial that we should have these different ages for different circumstances when dealing with the criminal law relating to youth. The circumstances that are different (on the one hand living in Northern Ireland or in England and Wales and, on the other hand, suffering from some slight impediment) do not seem to me to justify the differences in the age limits. I hope it is not too late for the Government to consider the desirability of being consistent and it is for that reason that I support this amendment.
Lord Williams of Mostyn: My Lords, I sympathise with the desire for certainty and indeed consistency, as the noble Lord, Lord Renton, said a moment ago, which was I think raised when we discussed this matter in Committee. There is obviously a period of time between true childhood and adulthood and (the noble Lord is quite right) Parliament has not produced consistent outcomes.
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As I said on the earlier occasion, a girl is able to give consent to sexual intercourse at the age of 16, in other words before she can drive a car; she can buy cigarettes before she can buy drink; and she can be held on remand with adults before she is eligible to be tried for a minor offence in an adult court. There are discrepancies undoubtedly. What we have done here is to adopt the age limits for young people set by Parliament only eight years ago when we passed the Criminal Justice Act 1991, which is of course two years after the Children Act 1989. At that time Parliament agreed that the age limit for treating a witness as a child for the purpose of privileged access to special measures, like video recording or live-link, should be 17 in sexual offence cases and 14 in cases involving violence. It also agreed that the age limit for treating an offender as a child for the purpose of being dealt with by the court, or a witness as a child for the purpose of reporting restrictions, should be set at 18.
I recognise the case that the noble Lord has made for a comprehensive overhaul of age limits. However, I do not think this Bill is the vehicle in which to do that because the discrepancies—as the noble Lord. Lord Renton, indicated—are dotted about a considerable body of legislation. I am happy to say that my resistance to this amendment does not, of course, mean that 17 year-old witnesses cannot have access to special measures. The Bill allows 17 year-olds to claim eligibility for special measures on the grounds that intimidation, disability or disorder, or the nature or circumstances of the offence, will otherwise reduce the quality of the evidence they have to give. I recognise that if one wants perfect symmetry, one can take examples from other Bills. However, if one wants to aim for perfect symmetry underpinned by a wholly consistent approach, this Bill does not constitute the opportunity to do that.
Lord Renton: My Lords, before the noble Lord sits down, of course he was justified in referring to age limits of various kinds, right down to the age of 14, in other circumstances mentioned in other Bills, but here we are dealing with an important matter within the scope of this Bill alone—leaving aside the other Bills—in which we should try to achieve consistency. It is relevant to mention that we are now going to re-establish a Northern Ireland parliament. Knowing the people of Northern Ireland as I do—and whom I have good reason to know through my responsibilities in the past—I should have thought that the people of Northern Ireland might be rather resentful if they find that there is a disparity between the definition of youth for the purposes of this Bill in this country and its application to similar circumstances in Northern Ireland.
Without doing what the noble Lord, Lord Williams of Mostyn, said might be done—namely, going right across the statutes in order to achieve consistency—here is an outstanding matter in which I suggest that an attempt could and should be made in this Bill. The Bill, of course, will have to go to another place. Therefore

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there is plenty of time for the Government to think about it. I hope that before the Bill receives Royal Assent that may very well be done.
Lord Swinfen: My Lords, like my noble friend I hope that the Minister and those who advise him, and also the Ministers in his department in the other place, will give this matter further serious consideration because it is an important matter.
Lord Cope of Berkeley: My Lords, before my noble friend sits down, will he reflect on the fact that the Minister says that we cannot put all the inconsistencies right in this Bill? However, that is not necessarily a reason for adding another inconsistency by means of this Bill.
Lord Swinfen: My Lords, I entirely agree. The Minister has been helpful in some respects in replying to this amendment but, as I said, I hope that he and his advisers will reflect upon the matter further and that before the Bill finally completes its passage through both Houses of Parliament the Government will bring forward an amendment of this kind. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Annaly Lord Annaly moved Amendment No. 28:
Page 12, line 38, at end insert—
("(c) that the witness is deaf and will require a sign language interpreter for the purposes of giving evidence.").
The noble Lord said: My Lords, Amendment No. 28 is also supported by my noble friend Lord Swinfen and the noble Lord, Lord Ashley of Stoke, who is not able to he present today. He supports the amendment strongly. I wish to speak also to Amendments Nos. 29 and 44, which also stand in my name and those of the two other noble Lords I have just mentioned. They are all connected and they concern profoundly deaf people who rely on sign language to communicate.
This matter is particularly relevant in the context of a court. 1 must declare an interest. I have a stepsister and a halfsister who are both profoundly deaf, one of whom is under the wing of the RNID in Blackburn. The RNID has been kind enough to brief me on these amendments. I declare another interest in that the RNID and British Telecom have sponsored two text phones for me, one of which is in my office in this House. Should anyone wish to communicate with a deaf person, they should feel free to use the phone in my office. I believe it is the only such phone in this House, believe it or not.
I can speak quickly to Amendments Nos. 28 and 29. I believe it is justified to mention on the face of this Bill deaf people who rely on sign language because they are a vulnerable category of people. They may suffer from a mental disorder, as is mentioned in Clause 16(2). I propose to include a further provision. Deaf people may look quite normal but if they cannot hear and have never heard a thing since they were born, I need say no more about how vulnerable they are. Amendment No. 29 proposes to insert the words, "the means of communication" in the Bill. That speaks for itself.
That leads me to Amendment No. 44, which requires a little more explanation. It concerns the case for video recording all sign language communication within a court. The case for video recording all sign language that occurs within a court—whether by a deaf person or an interpreter—is quite simple. Without video recording a mistake can occur in interpreting which can never be corrected as sign language is a visual-spatial language. At the very best audio recordings or written accounts are simply a record of an interpretation. The video taping of all communication by sign language within a court is therefore the most basic safeguard to ensure that mistakes in interpreting can be picked up. It is a simple step to ensure that justice occurs for both deaf and hearing people.
The case for video taping is strong. I wish to highlight research which was carried out two years ago by the Deaf Studies Research Unit at the University of Durham. In the report, Equality Before the Law—Deaf People's Access to Justice, the authors state,
"Yes, interpreters make mistakes. They make wrong decisions. We have certainly observed such errors. Sometimes they have been resolved quickly, at other times they have been ignored. Some errors could have grave consequences. It is generally agreed that it is almost impossible to interpret for any period of time without making some type of error. It is even more likely that the interpreter will make several debatable decisions. When we consider the number of court cases involving deaf people that will proceed with just a single interpreter and with no one in the court who actually knows what they are doing, how competently or incompetently they are proceeding, then this must give all those who have an interest in justice cause for concern".
It therefore comes as no surprise to learn that a key recommendation of this study is that in all stages of legal interaction a video recording should be taken. The video recording within courtrooms at the very least would be easy to undertake and would cost little, yet such a step would do much to ensure that mistakes could be corrected and equality before the law obtained for deaf people. I beg to move.
6.30 p.m.
Lord Swinfen: My Lords, I support this group of amendments. With regard to Amendment No. 28, one of the circumstances set out in Clause 16(2)(a)(i) is,
"suffers from mental disorder within the meaning of the Mental Health Act 1983".
A profoundly deaf person may suffer from that, but most deaf people do not. Sub-paragraph (ii) states:
"otherwise has a significant impairment of intelligence and social functioning".
Just because someone is profoundly deaf does not mean that he is not intelligent. Some profoundly deaf people are extremely bright. Neither does it mean that they have an impairment of social functioning. Subsection (2)(b) states:
"that the witness has a physical disability or is suffering from a physical disorder".
As far as I am aware, profound deafness is not a physical disability or a physical disorder; it is a sensory disability. The Minister and his advisers should look at this part of the Bill in that light. The same also applies to Amendment No. 29.

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With regard to Amendment No. 44, my noble friend pointed out that it is essential to have a video recording of the sign language interpretation. There are relatively few interpreters of sign in this country and some are better than others. In answer to a question the other day, the noble Lord the Minister, when talking about video recording police interviews which can be brought into the criminal proceedings in court, mentioned that it was perfectly satisfactory to have a sound recording of that interview. That would be perfectly all right for those who can understand the spoken word; a profoundly deaf person cannot understand the spoken word. He may be able to lip read but there will be no effective video recording of the lips of the people speaking—certainly not of the profoundly deaf person.
There should be excellent video recording facilities in these instances. If excellent ones are not available—the noble Lord the Minister was talking about the costs and said that not all police stations have recording equipment—I should have thought that it would be possible, because there are so many camcorders around today, to borrow one and even to get someone in—and, if necessary, put them under oath not to reveal what has gone on—to video record the profoundly deaf person's signing and the signing of the interpreter translating. If there is a sound recording of someone translating from, say, Chinese into English, that can be corrected later on. There is no alteration. But it is no good having a sound recording of a sign language interpretation. It makes no sound. Therefore, it is essential to have a video recording of it. Such an occasion will come up rarely, but it is important. I hope that the Minister will give serious thought to this matter when he is considering, the amendments. I sincerely support my noble friend's amendment.
Lord Cope of Berkeley: My Lords, I, too, support my noble friend's amendments. It seems to me that it might be possible to define physical disability so as to include deafness and sensory disability within that term. I accept that it is not generally regarded as within that term and that is. after all, crucial to the amendment. If it were within that term, there would be no need for Amendment No. 28 and, I suppose, Amendment No. 29. Nevertheless, there is no doubt that profoundly deaf people suffer from a disability which prevents them from giving evidence in the normal way.
Similarly, as my noble friend has said, it is absolutely useless to have a tape recording of sign language. It would not show anything. The video recording is essential in such cases, as drafted in Amendment No. 44.
Viscount Brentford: My Lords, I support this group of amendments. The impression I get is that errors may creep in with the sign language. The nearest analogy is that of the third umpire that one now has at important cricket matches; someone who can study a video of what actually took place and then give a clear impression of whether a person is out. On that kind of analogy, it seems to me that there should be a video recording so that people can subsequently make sure that what the witness has said has been correctly
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interpreted by the court. While I appreciate the problems of not always having the recorders available, it is something towards which we should be aiming.
Lord Williams of Mostyn: My Lords, the Trials Issues Group looked at the difficulty of those who are deaf in court and the entitlement of deaf witnesses to a sign language interpreter is perfectly plain. The Bill does not affect that. That is by way of background.
My advice is that Clause 16(2)(b) covers deaf witnesses, including those who are deaf by virtue of neurological disability, a point raised by the noble Lords, Lord Swinfen and Lord Cope. The advice I have is that deaf witnesses are covered by Clause 16 (2)(b). I must underline that the guidance we propose to provide will make that abundantly clear.
If deaf witnesses have a problem in communicating they may have great difficulty in giving their evidence in the way they would wish. Distress can be considered as an effect of disability, which should be considered under Clause 16 rather than Clause 17. I repeat what I said in Committee. It is perfectly possible that applications for special measures can be made under both Clause 16 and Clause 17 and they can be granted under both. I repeat: the application needs to set out why the witness was eligible for special measures and what special measures were needed with reference to either or both Clauses 16 and 17.
Under Clause 17, the court may consider whatever factors it thinks are relevant. The clause sets out a list of factors which must be particularly taken into account, but it is not an exhaustive list. The court will consider the factors under Clause 17(2)(c) if they seem to be relevant. I therefore do not think that the first two amendments are needed.
As to the question of the video recording of sign language interpreting in court, increasingly, experience shows that the sign language interpreters are accredited. That is not a perfect answer because not all of them are, but I am told that most of them are accredited and those who are not are normally recommended to the court by those who are properly able to judge their competence. At present, the video recording of proceedings in court is contrary to Section 41 of the Criminal Justice Act 1925. It is covered by the general prohibition in Section 41.
What I can do, and what I am happy to do, is to say that I will consider—I am dealing now with Amendment No. 44 because it is rather different—the matter with the Lord Chancellor's Department. Whether it will have a view that is agreeable to the noble Lords, Lord Annaly and Lord Swinfen, who put forward the amendments—and did so very moderately—I do not know. I certainly undertake to look at that, perhaps get some indication of the extent of the problem, and see whether the Lord Chancellor's Department has a view, hearing in mind that it is essentially within the remit of the Lord Chancellor's Department rather than the Home Office as it concerns the conduct of a criminal trial.
Lord Swinfen: My Lords, before the noble Lord sits down. may I say that my understanding is that examination-in-chief can take place over a video recording. I am speaking now as a layman. I am not a lawyer. If I use a wrong expression I hope that the noble Lord will forgive me. I understand that with a vulnerable witness the video recording of the first interviews at the police station can be used in court as primary evidence.
I was suggesting that it is necessary to examine the sign language given by the profoundly deaf person at the police station, which may be accompanied by the signing of an interpreter who may have been engaged at short notice and therefore may not be perfect. The situation may become fairly heated and excited as the profoundly deaf person is asked awkward and sometimes most unpleasant questions. They may have been the victim of an assault and be still upset. It is essential that there is an opportunity to examine the very first signing which one can do with a verbal recording. But that cannot be done with a person who speaks through sign only. There is that aspect of the matter as well as the court aspect. I appreciate the noble Lord's view that at the moment it is illegal to video in a court room. I appreciate that the noble Lord will take up the matter with the noble and learned Lord the Lord Chancellor. The initial recording at the police station is as important—possibly even more so—than at court.
Lord Williams of Mostyn: My Lords, I appreciate that this is Report stage, but I believe that the noble Lord is entitled to a full response to that latter aspect of the matter. When I answered the noble Lord, Lord Annaly, recently, I was not simply saying that an audio recording would be of benefit to the person at the police station who was profoundly deaf. I underlined that the audio recording would be available and also a signed, written record. That was the second part of my answer, which the noble Lord may have forgotten. I was careful to do that. I take the point that technology is available and that one can have split-screen recording so that one has a view of the suspect or the questioned person's demeanour as well as of the actual signing. I shall certainly consider it with the Lord Chancellor's Department. I do not know whether we will come to a conclusion that is satisfactory to noble Lords who have urged this course. I shall certainly consider the matter carefully.
Lord Annaly: My Lords, I am very grateful to the Minister for his reply which offers hope. The noble Lord can do no more than talk to the Lord Chancellor and use his powers of persuasion. As regards Clause 16(2), the noble Lord said that he did not agree to the amendment. My concern is that the magistrate, judge and, if necessary, the jury may not perceive a perfectly normal, but deaf, person as a vulnerable witness. That is why I asked for that particular amendment to be included in the Bill. The noble Lord said that he would mention the matter in the notes for people to see. My suspicion is that when something is included in the small print people do not necessarily refer to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Witnesses eligible for assistance on grounds of fear or distress about testifying]:
[Amendment No. 29 not moved.]
Clause 18 [Special measures available to eligible witnesses]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 30:
Page 14, line 9, at end insert—
("( ) The withdrawal of a notice under that subsection relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness's evidence has been made by the court before the notice is withdrawn.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 115 to 119 and Amendments Nos. 121 and 124. We have laid these amendments relating to transitional provisions. The reason is that not every special measure is likely to be made available on the same date to every eligible witness in every court area, in the magistrates' courts as well as the Crown Court.
Implementation plans are being considered by the project groups established under the supervision of an inter-departmental steering group led by the Home Office. We are concerned to produce an integrated programme for all the 78 recommendations of the Speaking Up for Justice report. We are likely to have advice by the end of April.
We would not want to lead witnesses to believe that they could benefit from the new measures in Chapter 1 of Part II of the Bill, especially before a training strategy has been implemented, guidance has been produced and the necessary equipment is in place. It may be necessary to commence this chapter early to allow for pilot arrangements. I emphasise that no detailed decisions about timetables and approaches have yet been taken. We simply want to allow the maximum flexibility.
Therefore, until full implementation, there will be a continuing need to rely on existing provisions such as Sections 32 and 32A of the Criminal Justice Act 1991, which provide for video and live link evidence from children. There will be a continuing need to rely on the common law power of the court to arrange for such measures as taking off wigs and gowns; for screens, sign language interpreters and signboards. The amendments are essentially designed to ensure that in the earlier stages the new arrangements and the old are able to run side by side. They also provide for the situation where a notification that a measure is available to a court is withdrawn by the Secretary of State. The amendment provides that witnesses who had been awarded the measure through a special measures direction before the measure was withdrawn would still be able to benefit from them.
The amendments also provide that we can commence rule and order-making powers provided for by both parts of the Bill before commencement of the substantive provisions to which they relate. This is an administrative device but it should enable us to bring in measured and effective implementation of the substantive provisions in the Bill when their time comes. I beg to move.
On Question, amendment agreed to.
Clause 19 [Special measures direction relating to eligible witness]:
Lord Swinfen Lord Swinfen moved Amendment No. 31:
Page 15, line 4, leave out ("might tend") and insert ("would be likely").
The noble Lord said: My Lords, this amendment is a redraft of an amendment introduced at Committee stage to ensure that special measures are not ruled out by judges unless there are good grounds to do so. As currently drafted, special measures can be rejected on the rather loose grounds that they might tend to inhibit the evidence. The Minister warned of the need for a balancing act between protecting the witness and allowing the court discretion in such matters. That is why he did not support the earlier amendment which he considered went too far in favour of the witness. I hope that this redrafting of the amendment will be a compromise solution sustaining the balancing act that the Minister is so keen to safeguard. I believe that the amendment strengthens the verification conditions of the clause creating a slightly stronger burden of proof in line with the test on the balance of probabilities without denying the court discretion in such matters. I beg to move.
Lord Williams of Mostyn: My Lords, I am sorry that I cannot accept the amendment. The courts have to ensure that the witnesses' evidence is properly examined and that they do not set up obstacles to its being challenged by a party to the proceedings. That is why we believe that we have got the balance right in Clause 19(3)(b) which provides,
"whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings".
If the court has any doubts about whether it will be possible to test a witness's evidence adequately if the evidence is going to be given with a special measure, which may sometimes be difficult, the court should not award the measure. I believe that conflicts will be rare. Special measures are designed to improve the quality of a witness's evidence. They are not designed to prevent the evidence that the witness gives from being challenged.
The phrase introduced in the amendment, "would be likely to inhibit", would require the court to decide whether it is likely, on the balance of probabilities, that a measure would inhibit a witness's evidence being tested. If it considered, for example, that there was a one in three chance that it might be inhibited—a substantial risk, but still more unlikely than likely—then, if it followed the test strictly, it should award the measure.
"Might tend to inhibit" would allow the court to refuse measures where there is a real risk of inhibition but the risk is not so high that it is more likely than unlikely. "Tend to" caters for a more general interpretation of inhibition in the context of the wider circumstances of the case.
We have doubts as to whether this amendment would be capable of being upheld because of the conflict with Article 6 of the European Convention on Human Rights, whereby everyone charged with a criminal offence has the right to have witnesses against him examined, and to have those who are called on his behalf examined under the same conditions. That is a point that I include in the
1610
debate; it is not determinative of the Government's response. We simply think that the balance referred to by the noble Lord, Lord Swinfen, is about right in the present phraseology.
Lord Swinfen: My Lords, this is possibly a matter of six of one and half a dozen of the other. The language is very close. But language tends, and is likely, to change over the years. However, I thank the Minister for the trouble that he has taken in replying. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Further provisions about directions: general]:
Viscount Astor Viscount Astor moved Amendment No. 32:
Page 15, line 44, at end insert—
("( ) In particular, the court must state in open court its reasons for any special measures direction which restricts the ability of representation of the news media to observe fully all the proceedings of the court.").
The noble Viscount said: My Lords, this amendment is the first of a group of amendments concerning the press. Amendment No. 33 allows the news media to see witnesses.
We understand that witnesses may need to be protected and screened from either the accused or the public, or both. However, it is important that under exceptional circumstances, when for some reason the news media are also to be screened, the court should have to say why. Otherwise, we run the risk of courts taking, as it were, the easy route and automatically excluding everyone.
If the news media are not present (this point relates to a later amendment) there is always lopsided reporting. The amendment asks the Government to explain the reasoning behind this clause. There has been great concern in the press about the Bill, as the Minister is aware. There is a strong case for the onus to be put on the courts to explain their decisions. I beg to move.
Lord Williams of Mostyn: My Lords, Part II of the Bill has two main aims: to encourage witnesses to come to court to give evidence and to help those who need it to give their evidence when they get there. Clause 19(4) already provides that any special measures direction must specify particulars of the provision made in respect of each special measure which is to apply. The amendments seek to alter that position by imposing an obligation on the court to justify any special measure which restricts the media's ability to see what is going on and to give specific permission to restrict the media's view. We do not think that is necessary.
I do not believe that it is essential for the media to have an unrestricted view of a witness giving evidence if that is impossible in practice; and I do not believe that the interests of open justice require that the court should have to give reasons to the media why special measures have been awarded if their effect is to restrict that view.
The reasons are clear enough. The court will only be able to award the special measures described in Chapter I of the Bill if the witness needs them to give best quality evidence. The court will have to give its reasons

1611
for awarding every individual measure. It seems unnecessary also to require the court to spell out each time that it is not imposing the measure simply to obstruct the press.
I agree that where possible the media should be able to see witnesses as well as hear their evidence and report it; but I do not believe that it should be a critical factor in the court's decision to award such measures. After all, the measures are there in order to obtain the best evidence from witnesses and to help the witnesses who are giving evidence by reducing the feeling of being simply on public show or in a public debate while they talk about matters which they may feel will place them in danger or about which they find it extremely difficult to talk, even to those who are closest to them.
The measures are all designed so that witnesses can be watched while they are giving evidence by the judge or magistrate, the jury, and a legal representative, so that the evidence can be properly challenged by the parties to the case. If in some circumstances the media, particularly in older courtrooms, simply cannot see the witness, they can hear the evidence. If the evidence is given by live link or video they can see that also.
Perhaps I should say a word or two generally. The noble Viscount, Lord Astor, is right. Some of his concerns will be more fully ventilated when we debate amendments to Clause 24. In Committee, I promised your Lordships that I would meet representatives of the media as fully as they wanted. I and my officials have met them. We are still having discussions, which I hope are open-minded on both sides, about how we safeguard the genuine public interest in having media reports of court cases. I shall speak to some amendments later this evening. I am simply touching on the amendments to Clause 24 to indicate that we take the rights of a free press in a civil society extremely importantly.
I believe that there are sufficient safeguards in the Bill as presently drafted. Therefore, I cannot on behalf of the Government accept Amendments Nos. 32 to 34.
Viscount Astor: My Lords, I am grateful for the Minister's considered reply. However, I do not find it entirely satisfactory. The Minister rightly raises the issues of a live link, so that the media can see, and of old courtrooms and the difficulties that exist where the press are unable to see, possibly as a result of seating arrangements. I accept that point.
However, where that is the case, and I suspect that it will be the case with regard to witnesses in a minority of cases, it seems reasonable to ask the court to explain its reasons. That is all that the amendment seeks to do. It does not in any way force the court to screen or unscreen. It does not force the court to do anything. It merely says that where the court is decided on an action, it must give its reasons. That is not unreasonable.
I accept the other points made by the Minister. However, the press—certainly the Guild of Editors and other members of the press to whom I have talked—have all made the point that the onus should be on the
1612
court to state its reasons. This is an important point. It is a simple one. It is not an onerous duty to place upon a court. I wish to test the opinion of the House.
6.59 p.m.
On Question, Whether the said amendment (No. 32) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 105.

Division No. 1

CONTENTS

Addington, L.

Lyell, L.

Anelay of St. Johns, B.

Mackie of Benshie, L.

Annaly, L.

McNally, L.

Astor, V.

Maddock, B.

Balfour of Inchrye, L.

Mancroft, L.

Beaumont of Whitley, L.

Mar and Kellie, E.

Belstead, L.

Marlesford, L.

Bridgeman, V. [Teller.]

Miller of Chilthorne Domer, B

Carlisle, E.

Miller of Hendon, B.

Carnegy of Lour, B.

Monson, L.

Chalker of Wallasey. B.

Montgomery of Alamein, V.

Chesham, L.

Northesk, E.

Colwyn, L.

Palmer, L.

Cope of Berkeley, L.

Pearson of Rannoch, L.

Cranborne, V.

Plummer of St. Marylebone, L.

Dean of Harptree, L.

Prior, L.

Dholakia, L.

Rankeillour, L.

Dixon-Smith, L.

Razzall. L.

Falkland, V.

Renton, L.

Fookes, B.

Rodgers of Quarry Bank, L.

Gardner of Parkes, B.

Russell, E.

Geddes, L.

Seccombe, B.

Gray of Contin, L.

Skelmersdale, L.

Grey, E.

Skidelsky, L.

Grimston of Westbury, L.

Soulsby of Swaffham Prior, L.

Haddington, E.

Stewartby, L.

Hampton, L.

Swinfen, L.

Hamwee, B.

Thomas of Gresford, L.

Hamar-Nicholls, L.

Thomas of Gwydir, L.

Harris of Greenwich, L.

Thomas of Walliswood, B.

Harrowby, E.

Tope, L.

Hayhoe, L.

Trumpington, B.

Hemphill, L.

Vinson, L.

Henley, L. [Teller.]

Vivian, L.

Hooson, L.

Waddington, L.

Kimball, L.

Weir, V.

Kingsland, L.

Williams of Crosby, B.

Lucas of Chilworth, L.

Winchilsea and Nottingham, E.

Ludford, B.

Windlesham, L.

Luke, L.

Wise, L.

NOT-CONTENTS

Acton, L.

Carter, L. [Teller.]

Ahmed, L.

Chandos, V.

Allenby of Megiddo, V.

Christopher, L.

Alli, L.

Clarke of Hampstead, L.

Amos, B. [Teller.]

Clinton-Davis, L.

Archer of Sandwell, L.

Colville of Culross, V.

Bach, L.

David, B.

Blackstone, B.

Davies of Coity, L.

Blease, L.

Davies of Oldham, L.

Borrie, L.

Dean of Thornton-le-Fylde, B.

Bragg, L.

Desai. L

Bristol, Bp.

Donoughue, L.

Brooke of Alverthorpe, L.

Dormand of Easington, L.

Brookman, L.

Evans of Watford, L.

Brooks of Tremorfa, L.

Farrington of Ribbleton, B.

Burlison, L.

Gallacher, L.

Carmichael of Kelvingrove, L.

Gilbert, L.

1613

Glenamara, L.

Murray of Epping Forest, L.

Gordon of Strathblane, L.

Nicol, B.

Goudie, B.

Orme, L.

Graham of Edmonton, L.

Pitkeathley, B.

Grenfell, L.

Plant of Highfield, L.

Hacking, L.

Ponsonby of Shulbrede, L.

Hardie, L.

Prys-Davies, L.

Hardy of Wath, L.

Puttnam L.

Harris of Haringey, L.

Ramsay of Cartvale, B.

Hayman, B.

Randall of St. Budeaux, L.

Hilton of Eggardon, B.

Rea, L.

Hogg of Cumbernauld, L.

Renwick of Clifton, L.

Hollis of Heigham, B.

Sainsbury of Turville, L.

Hoyle, L.

Sawyer, L.

Hughes, L.

Sefton of Garston, L.

Hughes of Woodside, L.

Sewel, L.

Hunt of Kings Heath, L.

Shepherd, L.

Janner of Braunstone, L.

Simon, V.

Jay of Paddington, B. [Lord Privy Seal]

Simon of Highbury, L.

Stoddart of Swindon, L.

Jenkins of Putney, L.

Symons of Vernham Dean, B.

Judd, L.

Taylor of Blackburn, L.

Kirkhill. L.

Taylor of Gryfe, L.

Levy, L.

Thomas of Macclesfield, L.

Lockwood, B.

Thornton, B.

Lofthouse of Pontefract, L.

Turner of Camden, B.

Macdonald of Tradeston, L.

Uddin, B.

McIntosh of Haringey, L.

Varley, L.

Mackenzie of Framwellgate, L.

Walker of Doncaster, L.

Mallalieu, B.

Warner, L.

Milner of Leeds, L.

Watson of Invergowrie, L.

Molloy, L.

Weatherill, L.

Molyneaux of Killead, L.

Whitty, L.

Monkswell, L.

Williams of Elvel, L.

Montague of Oxford, L.

Williams of Mostyn, L.

Morris of Castle Morris, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
7.8 p.m.
Clause 22 [Screening witness from accused]:
[Amendment No. 33 not moved.]
Clause 23 [Evidence by live link]:
[Amendment No. 34 not moved.]
Clause 24 [Evidence given in private]:
Viscount Astor Viscount Astor moved Amendment No. 35:
Page 18, leave out lines 40 and 41 and insert ("or
(d) bona fide representatives of newspapers or news agencies.").
The noble Viscount said: Amendments Nos. 36, 37 and 38 are grouped with Amendment No. 35. These amendments concern the press. I welcome Amendment No. 36 standing in the name of the noble Lord, Lord Williams of Mostyn, which I believe addresses the concerns raised in my Amendments Nos. 37 and 38. If that is not the case, I am sure that the noble Lord will explain to me the way in which the amendments differ.
An important issue is raised in Amendment No. 35, which goes further than the amendments grouped with it. As currently drafted Clause 24(2) provides that representatives of newspapers and news agencies are included in the group that can be removed from the court.
The Guild of Editors and various other press organisations are concerned about this very general power. They feel that it is not consistent with the
1614
principle of open justice and the long-standing exception to permit the press to be present as the public's representative when other members of the public are excluded in similar circumstances. There are plenty of circumstances in which the public are excluded but the press is allowed to remain. One asks why in those circumstances the press should be allowed to stay. At Committee stage the noble Lord, Lord Williams of Mostyn, cited the example of a hostile press, for example those who represented the National Front or something of that kind. There is clear evidence—no doubt the noble Lord will put me right if I am wrong—that if a reporter sought to intimidate a witness in court, in any court building, on the way to court, or in any publication or coverage of the case that affected the witness's willingness to testify or changed his or her evidence, the existing law of contempt and the powers of the court would be sufficient to deal with that problem.
The Government appear to take the view that there are exceptional circumstances in which the press should be excluded. Quite naturally, that has caused alarm bells to ring. I am aware that the Minister is concerned about this matter and has had meetings with representatives of the press. As he said at an earlier stage, he is a supporter of the press and its ability to report court proceedings. I believe that in this electronic age when there are cameras in court it is important that information technology should allow the press immediate access to transcripts. I should like the Minister to address that point because it would clear up confusion in the mind of the media as to exactly how the Government see the process working.
It is difficult to envisage a case in which media representatives should merit total exclusion and that the discomfort felt by witnesses could not be met by other means now within the powers, for example by means of technology. If the press lacks an absolute right to live links, transcripts and tape recordings, fair and accurate reports will be very difficult to produce. That is probably the most important issue that is raised by Clause 24.
While thanking the Minister for going some way to alleviate our concerns and also for the meetings that I know he has had with representatives of the press, I do not believe that this issue has been satisfactorily resolved. This is an opportunity for the noble Lord to explain the Government's thinking on this matter so that noble Lords can give the matter careful consideration. I beg to move.
7.15 p.m.
Lord Williams of Mostyn: My Lords, this amendment is grouped with Amendments Nos. 36 to 38. I briefly repeat my comments of a few moments ago. I said in Committee that I would have further discussions with the media. We have had useful discussions with the broadcast and print media. I am particularly grateful to Miss Santha Rasaiah of the Guild of Editors and the Newspaper Society who has been very patient and extremely helpful in putting forward what I recognise to be genuinely held concerns within the press.

1615
I do not believe that the noble Viscount is right in one respect. He gave the example of the presence of National Front reporters and said that that would amount to contempt. That is not so, unless they committed an act of contempt by way of harassment or intimidation. Their presence might in some circumstances disturb witnesses, but I believe that to be a marginal point. The amendments that I have tabled are designed specifically to make clear that the court should exclude the press only where it expressly wishes to do so rather than as a matter of routine or assumption.
The noble Viscount rightly pointed out in Committee that the very fact that the press was currently the only group specified on the face of the Bill perhaps suggested that it should be excluded more regularly than other groups. That is quite the opposite of our intention. I tried to give the press a safeguard that it could not be excluded without a deliberate decision by the court in particular circumstances. Undoubtedly, that would be a greater safeguard for our colleagues in the press. Whether or not that is sufficient for their purposes is another question. I am still in correspondence with them. Based on my latest instructions, I hope to have a meeting with them at 11 o'clock tomorrow morning.
The second amendment is a specific protection for the press. The noble Viscount is quite correct that its purpose is essentially that of his last amendment; namely, continuation of the protection by way of
"privilege or exemption from liability in respect of fair, accurate and contemporaneous reports of legal proceedings held in public".
What I seek to do in that amendment has the same purpose as that which underlies his Amendment No. 38. Therefore, to that extent he is quite right.
My amendment is not set in stone. I want to assist the press as fully as possible. We had extremely good discussions in the context of the Data Protection and Human Rights Acts and were able to reach a compromise that satisfied all parties. I stress that I recognise the importance of a free press in reporting court proceedings. Any exclusion of the press should be extremely rare. I table these amendments at this stage, but I am still considering whether or not the present amendments in my name are as good as we can get them. I hope that on that basis and with fairly vigorous reassurance—however, there can be no promises—the noble Viscount will feel able to withdraw his amendment.
Viscount Astor: My Lords, I am grateful to the noble Lord. Before he sits down, perhaps I may put two questions. I preface them by saying that my Amendment No. 35 makes reference to
"bona fide representatives of newspapers or news agencies".
I realise that "bona fide" is an expression that is open to interpretation and probably does not satisfy the Minister. However, that was my modest attempt to exclude those who might not be regarded as representatives of proper news media (if that is a term that can be used). I should like to put two specific questions to the Minister. First, the noble Lord said that the press would be excluded only in extremely rare circumstances. I believe that the difficulty faced by your Lordships lies in understanding
1616
those circumstances. Can the Minister give an example of rare circumstances? I believe that that would be helpful.
Secondly, if the press is excluded, does it mean that it lacks those absolute rights to live links, transcripts or tape recordings during the proceedings or at a later stage? It would be helpful if the Minister could answer that question.
Lord Williams of Mostyn: My Lords, the press does not have an absolute right to live links. It does not have a right to have cameras in court. At present it does not have the right to have tape recordings. On my recollection of the law a journalist is entitled to operate a tape recording in court only with the specific authority of the tribunal.
I undertake to think carefully about the legitimate worries of the press. I regard them as genuinely held. They are an important aspect of the proper reporting of court proceedings in this country.
Viscount Astor: My Lords, I am grateful for the Minister's reply. I am sorry to press him, but if the press were excluded for some reason, will it then be given access to those court proceedings at one time or another, whether or not it has an absolute right? Is it the Government's intention that the press should be able to report those proceedings?
Lord Williams of Mostyn: My Lords, the noble Viscount does not understand the present position. No transcript at present is kept by the magistrates' court. Very often now there is no contemporaneous transcript in the Crown Court. There used to be, but the proceedings are now mainly recorded mechanically and transcripts are not available until ordered.
I do not think that the exclusion of the press has anything to do with whether or not it has access to specific pieces of evidence. I repeat: it has no right to a camera; it has no absolute right to take tape recordings; it has only the opportunity to request the court that the proceedings be tape recorded.
I believe that two issues are being confused: first, the exclusion of the press and, secondly, what "rights" it might have. Those are, in fact, limited and are not as extensive as the noble Viscount mentioned.
Viscount Astor: My Lords, I am grateful for the Minister's response. I did not seek to say that the press had greater rights than it does at present. I sought to establish the Government's view in circumstances where the press was excluded. The Minister was unable to give me an example. How will the press report the case when it is excluded for a part of the proceedings? What is the Government's intention? Is the press to be allowed to know what happens in those proceedings?
I recognise that there are two issues here. I believe that they are linked. However, the Minister said that he will continue his discussions with the media, the press and the Guild of Editors. I am delighted to accept that important statement. The Minister has gone a long way with his amendment. The issue will require more

1617
negotiation between the press and the Minister. We shall wish to consider the matter carefully and return to it at Third Reading. In the light of what the Minister said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 36:
Page 19, line 4, at end insert—
("( ) A special measures direction shall not be taken to provide for the exclusion under this section of representatives of newspapers or news agencies except to the extent that it does so expressly.
( ) Any proceedings from which persons are excluded under this section (whether or not those persons include representatives of newspapers or news agencies) shall nevertheless be taken to be held in public for the purposes of any privilege or exemption from liability available in respect of fair, accurate and contemporaneous reports of legal proceedings held in public.").
On Question, amendment agreed to.
[Amendments Nos. 37 and 38 not moved.]
Clause 26 [Video recorded evidence in chief]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 39:
Page 19, line 8, leave out first ("the witness") and insert ("a witness who is eligible by virtue of section 16(1)").
The noble Lord said: I move now to an entirely different topic. It deals with the special measures proposed in Clause 26 concerning video recorded evidence-in-chief. It is linked to Clause 27: where a special measures direction may provide for a video recording of evidence-in-chief that same direction can include video recorded cross-examination or re-examination.
The purpose of the amendment is to limit the circumstances in which such a direction can be made to exclude all witnesses and to include merely witnesses who are eligible for assistance on the ground of age or incapacity as set out in Clause 16(1) of the Bill.
When I raised the matter in Committee, the noble Lord, Lord Williams of Mostyn, replied at col. 1357 of Hansard of 1st February:
"There is a case, if it is carefully and cautiously approached, for keeping nervous witnesses out of court and allowing them to give their evidence in a more relaxed way. We need to bear in mind that for witnesses intimidated by threats or fear of violence the law already allows the written statements of absent witnesses to be placed before the court, or for a witness to be granted absolute anonymity in court".
Since the noble Lord referred to the existing law under Section 23 of the Criminal Justice Act 1988, I thought that it would be instructive to compare the existing law with the proposals set out in the Bill in order to indicate the extent to which the law is weakened so far as concerns the interest of the defendant.
Section 23 of the Criminal Justice Act 1988 states that,
"a statement made by a person in a document shall be admissible in criminal proceedings as evidence in any fact of which direct oral evidence by him would be admissible if"
—there are a number of conditions—
1618
"the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders".
A statement that is made to a police officer or to a person charged with investigating offences is made in a statutory form and, as the statement will say in terms, any person who says anything he knows to be false or does not believe to be true in that statement can be charged and convicted of an offence and is subject to penal sanctions. Under the 1988 Act the statement has to be one to which the proper provisions apply. The second condition is that,
"the person who made it does not give oral evidence through fear or because he is kept out of the way".
"Fear" is a rather stronger word than the words employed in the Bill. For these existing provisions to apply, "fear" must be established by evidence to the appropriate standard of proof—that is to say, beyond reasonable doubt—and such evidence must itself be admissible.
The court has a duty to consider where the interests of justice lie with regard to the admission of the evidence. Essentially, for the provisions to apply at present there must be admissible evidence which will prove that a witness is in fear before the statement can be read.
When one looks at the provisions of this Bill, it is helpful, first, to look at the circumstances, set out in Clause 17(1), in which a person becomes eligible for assistance. It is not simply through fear proved by admissible evidence. That clause states that,
"a witness in criminal proceedings … is eligible for assistance … if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings".
So the first question that one must ask in relation to Clause 17(1) is: what is the standard of proof? Does the court have to be satisfied so that it is sure—the criminal burden of proof—that the quality of evidence is likely to be diminished?
Secondly, it refers not only to reason of fear but also to distress, so that a witness who says, "I cannot give evidence because I am distressed", not, "because I am fearful" can have special measures applied to him. There is no reference in that clause to the court considering the application that was made for the special measures to apply in the interests of justice.
Clause 17(3) states:
"In determining that question the court must in addition consider any views expressed by the witness".
What does that mean? That does not mean that it is evidence on oath given by the witness. Presumably it can be by a letter or hearsay evidence. The court must consider any views expressed by the witness. The same standard of requirement is not suggested in this Bill.
Under subsection (4) a complainant in a sexual offence is presumed to be eligible for assistance. There is already a weakening there of the circumstances in which special measures can be ordered.
Perhaps I may turn to the particular clause in question and my amendment to it. Clause 26(1) states:

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"A special measures direction may provide for a video recording of an interview of the witness to he admitted as evidence in chief of the witness".
That is simply an "interview of the witness". It is not qualified in any way. it clearly does not have to satisfy any particular statutory requirements; it is not under oath; and there is no criminal sanction for anything that the witness may say in that interview.
Of course, it has the practical disadvantage that it may apply to any witness who cannot necessarily be identified when the interview takes place. If my amendment were to be adopted, it would be fairly obvious that the proposed witness was either a child, under Clause 16(1), or a person who suffers from a mental disorder or who has a significant impairment of intelligence and social functioning. So, in those circumstances, from the very beginning of an investigation, the police can say, "This is the sort of witness for whom special measures will be required", and an interview can be carried out in a particular way.
However, that video-recorded interview does not, according to Clause 26, have to be carried out even by the police. I presume that a discussion between a complainant and her solicitor or anybody else could be admitted under this special measures dispensation.
Then, as I have said, the circumstances of Clause 27 follow. Once the court makes a determination by way of a special measure in relation to any witness in any sort of case—we are not dealing with sexual complaints but with any sort of case—then the cross-examination by way of a video recording can also be ordered at the same time.
In a subsequent amendment I shall deal with what I consider to be the perils of video cross-examination, but before we reach that stage I must deal with Clause 26. Therefore, my amendment is extremely important. It simply cuts down the broad expression of "witness" to a witness who can be identified at the beginning of an investigation by the police and provides for proper safeguards to be put in place and proper questioning to take place. Instead of the broad definition of "witness" it provides specifically that it shall refer to a child under the age of 17 or a mentally impaired person for whom, perhaps, some special regard must be had. I beg to move.
7.30 p.m.
Lord Williams of Mostyn: My Lords, the purpose of this amendment is to reduce the availability of video-recorded evidence, in the context of Clause 26, and limit it to those persons, as the noble Lord, Lord Thomas of Gresford, said, who are covered by Clause 16(1). It would therefore exclude those who are covered by Clause 17(1).
It is important to remember that, because every critical observation made about interviewing and hearsay, and all the criticisms which the noble Lord made about the introduction of a Clause 26 video-recorded interview in the context of Clause 17, would, it seems to me, apply also, with equal force, to Clause 16. But there is no attempt to remove the possibility of giving Clause 26 interviews in evidence in Clause 16. So there is an inconsistency there.
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I anticipate that this measure would be used mainly for witnesses who are eligible under Clause 16, whether because they are children or they have a disability or disorder which may affect their evidence. I do not anticipate it being widely used for witnesses eligible under Clause 17. I believe that it would be quite difficult to convince a court that the measure should be used.
Also, one needs to remember that the party calling the witness must consider whether the witness's evidence would have more impact if given live at trial, whether by live television link or in the courtroom itself. There may be witnesses who are subject to such intimidation or who have such distress that they would give better evidence if kept completely away from the court on the day of the trial and could give better evidence in a relaxed setting soon after the events. This provision merely seeks to give the court discretion to allow that if it considers it appropriate.
In Committee, the noble Lord, Lord Thomas, said that that is tipping the balance too far against the defendant. I disagree. I return to my point. If it is fair and keeps the appropriate balance in the context of Clause 16, I suggest that is quite fair and is an appropriate balance by virtue of Clause 17.
I repeat what I said in Committee. For those who are intimidated by threats or fear of violence, the written statements of absent witnesses can be put before the court. In some circumstances, witnesses can be given anonymity on a public interest immunity certificate. We are not going that far here. We are merely giving the courts the discretion to make a direction that video-recorded evidence from a relevant witness should be admitted where the court is persuaded that the measure is needed to put important evidence in its best form before the court.
In Committee, the noble Lords, Lord Thomas and Lord Cope, raised the issue of whether the police have proper training to interview a witness. They have now been doing it in relation to child witnesses since the implementation of the Criminal Justice Act 1991. Nothing in the Bill affects the powers of the courts to admit documentary hearsay when the circumstances are appropriate under the Criminal Justice Act 1988, and one should not overlook that point. Section 23 provides for the admissibility of hearsay in extreme circumstances; in other words, when it is the only way of getting the evidence from the witness.
The purpose of the Bill is quite different. We are trying to improve the completeness, coherence and quality of oral evidence given by the witness. I would suggest that that is more of a safeguard in many circumstances than the admissibility of witness statements in writing without the opportunity of any cross-examination. Clause 30(5) does not affect the operation of the law relating to hearsay.
I repeat that in the context of Clause 17 this power is likely to be rarely used. It is more likely to be used in the context of Clause 16.
The noble Lord, Lord Thomas of Gresford, raised the question of how strongly the views must be expressed by the witness and how they are to be expressed. The witness's views are taken into account. It is for the court

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of trial, whether magistrates or a judge presiding in a jury trial, to come to its own conclusion as to whether or not such views are persuasive. That is an exercise with which the courts are familiar at present.
I express my appreciation of the care with which the noble Lord has raised his objections. However, I believe them to be unfounded. I repeat that in the context of Clause 17 this is a power which is likely to be used quite sparingly.
Lord Thomas of Gresford: My Lords, my objection to the way in which Clause 26 is framed is its breadth, referring to any witness in any case. I suggest there is no inconsistency in conceding that in the case of a child or a person suffering from mental incapacity, special provisions should and could be made. One is broadening the whole scope of the clause to people who are not simply intimidated—the word used by the Minister—but those who can claim eligibility for having their videoed interviews shown by way of evidence-in-chief through distress at giving evidence. It is very much a weakening of the existing position where fear has to be proved before a statement can be read to the court.
I am grateful to the Minister for his usual courtesy in dealing with the amendment. However, he has not addressed the fact that there is no criterion that the courts should act in the interests of justice nor has he addressed the lack of sanction that applies to a videoed interview. In my view, these matters are important and must be returned to at Third Reading. For the moment, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion I suggest that the Report stage begins again not before 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.

National Minimum Wage Act 1998 (Amendment) Regulations 1999
7.43 p.m.
Lord Sainsbury of Turville Lord Sainsbury of Turville rose to move, That the draft regulations laid before the House on 16th February be approved [10th Report from the Joint Committee].
My Lords, I am proud to come to this House today to present these draft regulations on the national minimum wage. For the convenience of Members I shall speak about both sets of regulations together.
This Government were elected on the promise that they would introduce a national minimum wage. We are now approaching the end of a long road which has brought us to the brink of delivering that promise.
Your Lordships have, of course, already contributed to this process. There were useful and interesting debates on various issues when the National Minimum Wage Bill was being considered last year. I hope that the debate this evening will be equally productive.
The Bill provided the framework of powers to establish a national minimum wage. The draft regulations which are now before the House use some of those powers to put the detailed technical arrangements in place. I shall explain what they do in a little while.
The Government have placed a premium on consultation and transparency throughout the process of bringing forward the minimum wage. We set up the Low Pay Commission which did a UK-wide consultation, receiving some 600 responses from all sectors and sides of industry. We placed its report before this House. We carried out a further consultation on the draft regulations and received some 300 responses. A report on its outcome has been placed in the Library of the House. We have also laid before the House a report on areas where the regulations depart from, or build on, the original Low Pay Commission recommendations.
I believe that this has been a massive and continuing effort with input from all sides: employers, workers, trade associations, unions, academics and Government. My noble friend Lord Haskins has welcomed the way in which my department has carried out this process.
As a result of the consultation, we have adjusted the regulations in a number of ways. These reduce unnecessary burdens on business, but without compromising protection for workers. First, we have decided not to proceed with a requirement for employers to provide a statement of the minimum wage on every payslip. We believe it is preferable to wait and see whether that should become necessary in the light of experience. I believe in any case that employers will find it to be in their own interests to ensure that their staff know about the minimum wage in order to avoid confusion and unnecessary disputes. My department is including, in the guidance that will be available, a model poster which I hope employers will want to display at the workplace. We cannot require employers to do that but it seems a sensible thing for good employers to do.
We have always regarded it as important to ensure that workers are aware of their rights, and employers of their obligations. We fully recognise that the Government have a role in this process as well. That is why the National Minimum Wage Act requires the Secretary of State to publicise the minimum wage. That is why we are spending around £5 million to ensure that people know what the national minimum wage is all about.
Secondly, we have decided not to require employers to keep specific records, but that they should be required to keep sufficient records instead. In other words, it will be left to the employer to judge what counts as sufficient in the first instance. We considered this issue very carefully because some businesses have told us that they would welcome knowing precisely what records should be kept. As a result, the guidance will contain advice on the kind of records that might be regarded as sufficient.
I believe that is a sensible starting-point. It should not reduce protection for workers, because they will still have a right of access to the records if they believe they are not receiving the minimum wage. In the event of a dispute, it will still be for the employer to prove that he

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has paid the minimum wage, rather than for the worker to prove that he has not received it; and it will still be a criminal offence not to keep records or to keep or produce false records.
We have also included special rules for workers who receive an annual salary in regular payments but who work irregular hours at different times of the year: for example, workers who work only during the school term but who are paid a regular amount throughout the year. During the consultation, concerns were expressed by representatives of employers and workers that the original draft regulations would require them to restructure their work and pay arrangements, even though the workers in question received the minimum wage for the time they were actually working. The effect of these rules is to treat annual working hours as if they were evened out across the year, reflecting the evening out of pay received. As a result, there should not be any need to restructure existing arrangements.
I hope that I have shown that the Government have taken pains to listen to responses, and have adjusted the regulations where appropriate but without reducing protection for workers or affecting the integrity of the minimum wage. As a result I am confident that the regulations will achieve their main aim; that is, the elimination of unfairly low pay, but with minimum knock-on effects or disruption to existing arrangements. The cost, as estimated in the Regulatory Impact Assessment, is confined purely to the impact on the paybill at around 0.6 per cent. of the total UK paybill.
I said that I would come back to the coverage of the regulations themselves. In my view the regulations do the minimum necessary to enable a minimum wage system to operate effectively. Without going into all the details, I shall pick out the main areas which they cover.
They set the rate of the minimum wage: £3.60 for those aged 22 and over; £3 for those aged from 18 to 21; and £3.20 for those aged 22 and over who are undertaking accredited training in the first six months of a new job. In this respect, the regulations also define what counts as "accredited training".
The regulations define what counts as pay—broadly in line with what the Low Pay Commission recommended. It is absolutely essentially to do that for certainty and to ensure that the rate amounts to the same thing for every worker and employer. The starting point is gross pay including, for example, incentive payments or bonuses as well as tips paid through the payroll. Accommodation can be counted, up to a maximum of £19.95 per week. But other elements are excluded; for example, overtime and shift premia, allowances that are not consolidated into basic pay, the provision of tools, a uniform or other equipment needed for doing the job.
It is equally essential to define what hours count as time when the minimum wage is payable. Again, the regulations keep broadly to what the Low Pay Commission recommended. In general, the times when a worker is at work and required to be at work will count, as well as travelling or training during working hours. There are also special arrangements for calculating the hours of pieceworkers and workers who have specified tasks but no set hours in which to do them.
It is also essential to show how to calculate a worker's hourly rate of pay, so as to check whether he or she is receiving the appropriate rate of the national minimum wage. The basic principle of the regulations is straightforward: the amount of pay that counts towards minimum wage pay is divided by the number of hours for which the minimum wage is payable.
I hope that that has given a flavour of what the regulations cover. The guidance will provide a comprehensive introduction to the rules, with many worked examples to assist understanding.
The introduction of a national minimum wage represents a significant step in tackling poverty in this country. At the same time we have sought to make certain that small businesses in particular do not have to take on any unnecessary administrative burdens. These regulations represent a sensible and reasonable starting point. But it will also be important to ensure that we keep a close watch on how things develop in practice, so that we are in a position to respond as necessary.
As I have already indicated, the Low Pay Commission has been given a role in monitoring the introduction of the minimum wage. I am confident that it will carry out this task as expertly as it conducted its first investigation and I look forward to receiving feedback. We shall also be getting more continuous feedback from the Inland Revenue, who have been appointed to enforce the minimum wage. In addition, we shall keep an eye on cases that come forward to the courts and the tribunals. By keeping all these avenues open, I am confident that when the time comes to make any adjustments to the regulations in the light of experience, we shall he able to do so in a reasonable way.
I hope that I have been able to explain what the regulations are, what they do and why, and to show that they reflect the outcome of a very thorough process to which the Government responded in a flexible and realistic way. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 16th February be approved [10th Report from the Joint Committee].—(Lord Sainsbury of Turville.)
Baroness Miller of Hendon: My Lords, I know the Minister will not be surprised when I say that the Opposition did not welcome this Act and did not believe it to be a good one. However, we believe that any proposal that ameliorates the problems that might arise with the National Minimum Wage Act is to be welcomed.
During the passage of the Bill through both Houses we warned the Government that it would have adverse effects on employment prospects of some vulnerable categories of employees. Though the noble Lord spoke to both orders together—I will continue to deal with them together—my comments now refer specifically to the amendment regulations.
To adapt an aphorism of the late Harold Wilson as he then was, one person's minimum wage is another person's job seeker's allowance. This is not the first U-turn that the Government have had to make over the operation of an Act which has not yet even come into

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force. On 8th February, in response to a Question from me, the noble Lord, Lord Williams of Mostyn, defended the application of the national minimum wage to au pairs only to find himself later cut off at the knees by the Secretary of State of the DTI who announced that it did not apply to them, which is what I had argued.
I mentioned this matter to the Minister outside. This morning two pieces of paper were faxed to me. One was an extract from Stephen Byers' report on regulations supplementary to the national minimum wage dated 16th February. It contained a paragraph which said that au pairs are excluded from the national minimum wage regulations. At the same time, or shortly afterwards, I was faxed something from one of the activity centres (to which I shall turn later) which appears to be preliminary guidance on the national minimum wage from the Department of Trade and Industry. The activity centre is not sure whether it received it on 23rd or 24th February, but it was certainly either last Tuesday or Wednesday. It stated that all workers, including part-time workers, pieceworkers, home workers, agency workers, domestic workers including au pairs must receive at least the national minimum wage.
I understand that a problem arose in that the Home Office did not anticipate what the DTI would announce a week later. Those things happen. But it is extraordinary that, once the Secretary of State at the DTI had made a statement on it, a leaflet on guidance was dispatched by officials of the DTI more than a week later saying that au pairs are included in the national minimum wage.
I am particularly glad to see that the Government are going to take powers to exempt those over the age of 26 in the categories (b) and (c) referred to in the regulations. Those are persons who participate in a scheme under which shelter is given in return for work and those participating in a scheme designed to provide training and work experience.
In the debate on one of my amendments I drew attention to the problem of those working at holiday summer schools, what are usually called "activity centres". I warned that the application of a national minimum wage to their staff, who were actually engaged in gaining work experience towards national vocational qualifications, would not only put the activity centres out of business but would also have a devastating effect on local communities who depended upon them, as well as depriving up to 200,000 children every year from a much-needed facility provided by these charities.
Unfortunately the noble Lord, Lord Haskel, who dealt with the amendment at that time, was unable to offer me any comfort except to refer to Section 44 of the Act, which I do not believe to be applicable. However the provisions go some way towards meeting the needs of the activity centres. I hope that the Secretary of State will exercise the powers he had taken in that regulation in their favour as soon as possible. I say, "go some way" because it would only be applicable if they were over 26; not in the gap between 18 and 26 when people might be working in those centres or studying there.
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It is also a matter of some considerable disappointment, especially to those in the engineering industry, that the Government, when taking these second thoughts, have still not exempted apprentices. That was a recommendation of the Low Pay Commission and I hope that even at this stage the Secretary of State will consider that.
There is also a change in the proposed record-keeping requirements, which I will mention later and which the Minister has just discussed. I am not against politicians of whatever party making U-turns whenever they realise that they have got something wrong or have discovered that the electors who sent them to the other place do not agree with them. I am certainly not criticising the Government for their change of mind in respect of people over 26. On the contrary, I congratulate the Government and welcome their decision.
The main regulations, which we awaited with bated breath, define the value of the elements that make up the national minimum wage—cash payments, residential accommodation, food and other benefits in kind. In Committee, I introduced an amendment that defined in the simplest possible terms wages, benefits and anything so defined by the Inland Revenue for the purpose of income tax. I hope that your Lordships will excuse me for quoting myself. I said:
"The plain and simple effect of the main amendment … is to define 'remuneration'. It is defined as being anything which the Inland Revenue would treat as taxable. In other words, if it is subject to income tax then it is income. It is as simple as that".
It still is. I argued that the Inland Revenue, with its long experience of defining wages and dealing with attempts at evasion was the best possible interpreter—especially with the impending amalgamation of the Benefits Agency. I asked—with some prescience, if I may say so—whether the regulations would be drafted by the Inland Revenue or by
"dedicated amateurs on the subject in the DTI".—[Official Report, 11/6/98; col. 1255.]
In a few moments, your Lordships will be able to form your own opinions. In replying to that helpful and constructive amendment the noble Lord, Lord Clinton-Davis, said—and mark this closely:
"Employers and employees will want to know precisely what does and does not count as payments for determining compliance with the minimum wage".—[Official Report, 11/6/98; col. 1257.]
In debates on other topics, the Minister and the noble and learned Lord, Lord Falconer of Thoroton, stressed the importance of employers and employees alike knowing exactly what was payable.
Paragraph 36(1)(a) on page 33 defines the amount to be taken into account where living accommodation is provided. The length of the regulations speak for themselves when compared with my nine-word definition:
"whichever is the lesser of the following—
"(a) the amount resulting from multiplying the hours of work done in the pay reference period (determined in accordance with Regulations 20 to 29) by 50p, and reducing that product by the proportion which the number of days (if any) in the pay reference period for which living accommodation was not provided bears to the total number of days in the pay reference period; or"—

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I shall not continue. When the Minister was discussing that regulation, it sounded simple but not when an employer or an employee has to examine it. If the object of the regulations is to enable employees and employers alike to understand what their respective rights and obligations are, perhaps the Minister will tell us how the owner of a late-night chippy who allows staff who have missed the last bus home to sleep on a camp bed in the stock room can work out the value of the accommodation.
I do not want to rub salt into the wounds, but what about Regulation 37(2)? It states that:
"For the purposes of Regulation 31(1)(i), the amount of the deduction the employer is entitled to make or payment he is entitled to receive in respect of the provision of living accommodation shall be adjusted by multiplying that amount by the number of hours of time work actually worked by the worker in the pay reference period (as determined in accordance with Regulation 20) and dividing the figure so obtained by the total number of hours of time work the worker would have worked in the pay reference period (including the hours of time work actually worked) but for his absence."
The words "work worked" and "worker" appear eight times in one gigantic sentence of 101 words, including a reference to theoretical hours that a worker would have worked but for his absence from work.
To describe those regulations as a dog's breakfast is to risk running foul of the RSPCA. The Minister said that guides are being produced. I ask that those produced by the DTI are written in simple language capable of being understood by unsophisticated employers and employees, and that they will be published as soon as possible.
Part V of the regulations refers to the records that the employer is required to keep. Regulation 38(2) says that the records that an employer shall be required to keep shall be in the form a single document. Let me applaud that uncharacteristic brevity and simplicity.
I remind your Lordships that in Committee, I argued for an amendment requiring the records to be kept in a quote "reasonable" form and that PAYE records should he regarded as adequate records, to avoid duplication.
The noble and learned Lord, Lord Falconer, rejected my amendments as being unduly prescriptive, but offered to consider closely and sympathetically the relationship between the PAYE and national insurance records and those required for the purposes of the 1998 Act. I am glad that after the consultation process, the Government conceded that I was correct and that two sets of records on two separate bits of paper are not required. I am also delighted that the Government have abandoned the idea of the massive written statement that in their original consultation document an employer would have had to prepare weekly.
The Government professed the desire that employees would be able easily to see that they were getting their entitlement to the national minimum wage. I doubt that they will be able to do so simply by reading the regulations. The main beneficiaries from the regulations are likely to be the lawyers, but then they work for much more than £3.60 per hour. This is the Government's Bill.
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The Government are responsible for the regulations that are supposed to make it work. We shall not oppose them.
Lord Razzall: My Lords, I begin with a slight admonition of the noble Baroness, Lady Miller of Hendon. In the debate on the Bill, I disagreed with virtually everything she said, but she is someone with whom I have had the best of relations. It is not true that the Opposition opposed the Bill. One opposition party did so, and that was the Conservative Opposition. There is more than one opposition party in this House. One might say that there are three opposition parties, if one takes the two wings of the Conservative Party—but that is for another occasion.
It should be made entirely clear that the Liberal Democrats have been four-square with the Government on the necessity of introducing the minimum wage legislation. We have supported them throughout. I trust that the Minister will take my remarks in that context. Unlike the noble Baroness, we come from a position of overall support for the legislation's aims and objectives.
We entirely support the position that the Government adopted after consultation with regard to record-keeping. We were concerned, like many others in the House and the business community, that a draconian structure would be imposed—particularly on small employers. We much welcome the approach indicated by the Minister and set out in the Bill. We hope that the same commonsense approach will be adopted by the Government when listening to the concerns of the business community on other regulations as the legislation moves forward initially in coming years.
I want to put down markers for three areas of some concern. Although the Minister was not involved directly in the legislation, he will be aware—together with the noble Lord, Lord Simon of Highbury—that one of our concerns is to advocate permanent status for the Low Pay Commission. Although some progress is reflected in the regulations, we would press the Government to go further in entrenching the commission as a permanent body to monitor the regulations' effects on the general business community, young people and regional variation—on which we have bored for Britain.
Our second concern goes less to the form of the regulations and more to the timing. The regulations are intended to come into effect on 1st April 1999. That is a short time for regulations of such complexity affecting all employers to be introduced. Indeed, both in this House and in another place a number of people have expressed concern with regard to the working time regulations. Some felt that these were introduced on a very fast time track without necessarily allowing an appropriate period for the business community to take them on board, accommodate them and implement the results. We have some worries that the timetable will impose pressures on business. In future, when new regulations are to be brought in or finalised, we ask the Government to undertake to ensure that there is perhaps a longer lead time into the period than will actually happen between early March and 1st April when the regulations come into effect.

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A further point flowing from that is that, as the noble Baroness, Lady Miller, indicated—indeed, it was touched upon by the Minister—these are complicated regulations; indeed, by definition, they must be complicated. Presumably the key document for employers and employees will be not so much the regulations, which will provide the framework within which rights are given and obligations undertaken, but the explanatory memoranda that are sent out and the information that the department gives to firms, companies and staff regarding the implementation of these regulations. Such explanatory memoranda should be written in as easy a manner to understand as possible. They should also be produced and disseminated, in the light of the very tight timetable, as soon as the regulations have been approved by Parliament. I would welcome some indication from the Minister that that point has been taken on board; that the process is under way; and that employers can expect to receive clear instructions on how to implement these regulations as soon as they are in place. But overall, as I said at the beginning, we support the Act and clearly, therefore, we support the regulations that are being brought in to implement it.
The Lord Bishop of Bristol: My Lords, in addressing your Lordships' House I want to make it quite clear that the Church is not taking issue with the principle of the minimum wage or of the legislation to establish and regulate it. Indeed, many of us have fought for this for a long time and we believe it to be right. The Church is not seeking any general exclusion from the provisions of this Act. However, the Church does have concerns about the possible impact of the legislation on religious communities. About 200 community houses have been identified as being affected by the legislation and some 20 communities have actually been actively lobbying on behalf of the rest. If I may say so, it is estimated that each community is involved with about 500 people a year at the lower level; indeed, in the L'Arche Communities, the number is something like 5,000 people a year. Those are considerable numbers of people who are being served.
Perhaps I may give the House just one example, which I believe will help noble Lords understand the exact nature of the problems. I should like to take the L'Arche organisation which describes itself as,
"Building communities with people who have learning difficulties".
The regulations do not, apparently, recognise the particular characteristics of "intentional" communities like those run by L'Arche. For example, the L'Arche organisation sees itself as running communities where people join freely in a spirit of service and receive in return modest payment and accommodation. L'Arche's pay policy is that every community member receives payment on the same basis, according to need rather than reward—an idealism which, I suspect, many people wish they were able to follow. This is an important principle that L'Arche has held for the past 25 years in its houses here in the United Kingdom, and one it wishes to retain.
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The major problem with the new National Minimum Wage Regulations is that they do not allow L'Arche to take any account of the value of free subsistence and accommodation that its live-in assistants receive over and above the figure of £19.95 per week, as set out in the regulations and to which reference has already been made. That is clearly unrealistic, given the fact that such accommodation actually costs more in the region of £100 a week. If L'Arche were allowed to take account of the full value of the accommodation and living costs at the same level paid to live-out assistants in its workshops, the wage levels of live-in assistants would exceed the minimum wage figure given in the regulations. So it is not trying to find a way to make things work on an easier basis; it is the way in which costs are actually worked out.
However, if the people we are talking about here were demoted to the status of volunteer they would fall outside the regulations; but would be denied any additional payment over and above basic subsistence and accommodation. Their long-term security would be totally the responsibility of the state. L'Arche believes that it is thus being penalised for treating people well. So surely, if no concessions are made, L'Arche believes that it will he faced with an increased wage bill of about £500,000 a year. As it is dependent on local authority funding that is already fixed, it could only continue to operate by making assistants redundant or, in extremis, returning people with learning disabilities to the care of their local authority, with all the costs implicit in that action.
Surely the latter is not the intention of the legislation, or of the Government in introducing it. I was, therefore, delighted to hear the Minister say that officials are even now preparing guidance on the interpretation and application of minimum wage regulations. But as they are now to come into being on 1st April of this year, noble Lords can understand that 200 community houses look to this month with considerable concern. Representatives of those communities and other Church bodies look forward to the opportunity to discuss how these voluntary workers are to be considered under the legislation, and how they are to be treated. Such religious communities do very special and valuable work; indeed, it is often work that no one else is willing to undertake. Surely it is in no one's interest that their service should thus be jeopardised.
Lord Sainsbury of Turville: My Lords, we have had a useful debate which has focused on a number of key aspects of this important measure. I should like to deal with the main points which have arisen. We estimate that there are 2 million workers who will benefit from these regulations. Employers, too, have welcomed the regulations as laid. The Confederation of British Industry has said that the Government have made a number of sensible changes which should help keep down the administrative burden.
I should like, first, to deal with the question of delay and the concern that has been raised that there has been too little time between laying the regulations and their entry into force. On the other hand, others—and we will come to this later—may see the regulations as being

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unduly complicated and difficult to understand. It is obviously important to ensure that business and workers are able to adjust as smoothly as possible to the new legislation. I can assure noble Lords that the Government have done all they can—and will continue to do so—to ease the transition.
In the first place, the Government have conducted a very thorough consultation on the regulations. A large number of representations were received raising important issues which required careful consideration. I believe that it was right for the Government to take the time to ensure that the regulations properly reflected the outcome of the consultations. However, I do not believe that it would have been right to put back the date of the implementation from I st April. That would have gone against the recommendation of the Low Pay Commission and would have denied low paid workers the benefit of the minimum wage for a longer time: they have waited long enough.
I turn now to the question of complexity. It is always easy to take a piece of legislation and make it sound ridiculous by concentrating on particular aspects of it. These regulations are inevitably complex in some places. This is because they need to cover the great variety of working and pay arrangements throughout the country. For example, they must cater for piece workers at home and in the factory, people who work on commission, workers who are engaged in unseasonal employment and workers who do long or unusual hours as well as their employers. That is where the complexity comes in—because life and work are indeed complex. In this respect, these regulations are no different from other areas of employment law which must cover the exceptional as well as the standard cases.
I can, however, assure the House that for the great majority of businesses and workers who operate on the basis of a nine to five day with regular pay, the regulations represent a straightforward approach which is in line with the definition of pay and working hours that was recommended by the Low Pay Commission in its report published last June.
In addition, the Government are committed to ensuring that employers are aware of their obligations and that workers are aware of their rights under the minimum wage. As I said at the start of the debate, we have decided to spend some £5 million on telling people about the national minimum wage in the run-up to 1st April and after.
There is already a helpline which sends out preliminary guidance and answers enquiries. My department is already issuing preliminary guidance based on the overall scope and effect of the National Minimum Wage Act. When, subject to the approval of this House, the regulations are passed, my department will he releasing detailed guidance as well as shorter leaflets designed for employers and for workers. We asked businesses what they wanted to see in such guidance and we have aimed to produce it. In particular, businesses have told us that they wanted clear and comprehensive guidance with worked examples. I believe that the guidance we have produced, and the back-up enquiry lines, will be helpful to both small and large businesses in adjusting to the minimum wage.
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I shall now deal with one or two other specific points raised in the debate. There was the question of au pairs. I think we have arrived at a sensible position on this in which au pairs will be excluded, but only to the extent that they are treated as part of a family, particularly as regards the provision of accommodation and meals and the sharing of tasks and leisure activity.
The guidance note, to which the noble Baroness referred, was specifically listed as preliminary guidance. We have instructed the distribution company not to give out any more copies until the definitive guidance is available, and the definitive guidance will make clear what we have done in relation to au pairs and the extent to which they are exempted.
I turn to the question of wages: what wages should be counted as income. The situation here is simple. It is different from the point of view that it is specifically defined in the regulations because we do not want all the possible benefits other than the specific case of accommodation to be counted against the minimum wage and therefore lead to the dilution of the basic principle. That is why we have only set on the accommodation offset and we have fixed that at a specific figure of a maximum of £19.95.
The question was also raised of charities and intentional (religious) communities. The position of charities and religious groups is one to which we have given a great deal of thought. We have concluded that there is no way of allowing workers to opt for less than the national minimum wage without giving less scrupulous employers the opportunity to put pressure on vulnerable workers to sign away their rights. DTI officials are in contact with many of these groups and will be working with them to produce special guidance for charities adjusting to the National Minimum Wage. Our overall approach has been endorsed by the National Council for Voluntary Organisations, community service volunteers and major charities. If you are a genuine volunteer there is no reason for you to be caught by the minimum wage in the first place. But if you are a low paid worker, you will be caught by the minimum wage. There are in this case particular issues which relate to the interaction between intentional communities and the question of accommodation, and we will need to work through that with the DTI officials.
The question of apprentices was raised. I would only say here that there is a complicated balance to be made between incentives to employers and incentives to employees. I believe that employers who believe in the value of training will continue to do this even in circumstances where, after the first year, they have to pay the minimum wage.
In approving these regulations we have been taking part in a historic process. The introduction of a national minimum wage into a flexible labour market—the first time since the last war that this has been attempted—will help lift 2 million people out of poverty and reliance on benefit and I hope will prove also a spur to improved business performance. I beg to move.
On Question, Motion agreed to.

National Minimum Wage Regulations 1999
Lord Sainsbury of Turville: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 16th February be approved [10th Report, from the Joint Committee].—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]
8.24 p.m.
Consideration of amendments on Report resumed on Clause 26.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 40:
Page 19, line 15, at beginning insert ("Subject to section 30(5)").
The noble Viscount said: My Lords, at the Committee stage I asked the noble Lord, Lord Williams of Mostyn, to consider the rather difficult problem confronting courts—and it will be Crown Courts and magistrates' courts—when they decide whether to admit evidence which comes via a video recording. The noble Lord was kind enough to write to me, as he has done for so many others, and he said, first of all, that there is the test that appears in Clause 26(2) and (3). He also pointed out that, by virtue of Clause 30(5), the provisions of the Police and Criminal Evidence Act, Section 78 (which is a familiar and widespread discretion) will also apply, as indeed I think is the case now. The difficulty is, as the noble Lord, Lord Thomas of Gresford, was setting out before the adjournment, that we are now proposing to deal with a much wider range of potential witnesses who will give their evidence via video recordings. We therefore need to be clear about the type of discretion and the criteria upon which a court is to use its discretion if there is an objection to any such evidence.
The more I have looked at this the more difficult it has seemed to me to be. I am not sure that this is the right amendment at all. I have come to the conclusion that it is probably better if one leaves out altogether subsection (2) and subsection (3) of Clause 26. However, that is not the amendment, and I am at present probing how the Government are intending that this should be dealt with by the courts. The only existing statutory special measures that I know of are in relation to the video recording of children's evidence. They were put into the Criminal Justice Act 1988 by some new sections in the Criminal Justice Act 1991. These are all being repealed and replaced by the provisions of this Bill. I am sure that the noble Lord, Lord Williams, is familiar with the case of G v. DPP, where Lord Justice Phillips, as he then was, now the noble and learned Lord, Lord Phillips, gave a lapidary judgment in the Divisional Court in a difficult case arising out of the evidence of two small children.
There are a number of aspects of this case which are illustrative of the problems that are likely to arise. The first point that emerges is that when Lord Justice Phillips looked at the existing special provisions for deciding on the admissibility of children's evidence, which is the same to all intents and purposes as what is now in Clause 26(2) and (3), he said that there was no material difference between them and Section 78 of the Police and Criminal Evidence Act. If that is right, my original proposition that we do not need subsections (2) and (3) is probably the correct response to all of this, because of course Section 78, as I said, is saved by Clause 30(5).
However, the case goes on to illustrate graphically the problems that will arise. As I said, they will arise in the magistrates' court as well as in the Crown Court. I suggest to the House that we ought to be abundantly clear about how they are to deal with these matters. The case of G turned on the proposition that a highly skilled psychologist should be called to give evidence—his report ran to 115 pages—about the reliability of the evidence of the two children concerned. They were perfectly normal children and there was nothing to suggest they were particularly unreliable. However, he was asked by the defence to produce this report and for the magistrates' court to rely upon it, and then the Crown Court on appeal. After a great deal of argument the magistrate decided—it was a stipendiary—that he would not and the Crown Court said that it would not rely on it either. The Divisional Court, under Lord Justice Phillips, said that it was quite right not to do so because in the case of normal children there was no need to have a psychologist's report to decide whether their evidence was admissible or reliable.
However, the point that emerges from this is whether the evidence can be considered to be reliable. That may be comparatively simple when one is dealing with ordinary, straightforward children. It may be a little difficult if they are young, but, on the other hand, there is by now a substantial body of experience—the noble Lord, Lord Williams, mentioned this before dinner—in the hands of the police and social workers on preparing witness statements by children. There is the memorandum of good practice which was prepared after the Cleveland case which is widely used.
This Bill, however, embraces a far wider scope of people who potentially may give evidence by video link. We were talking about them before dinner. I refer to Clauses 16 and 17. As to some of them, I suggest to your Lordships that the reliability of their evidence may be a live issue indeed. There may well be the necessity to call expert evidence on the whole of that subject. There will, of course, be borderline cases where it is not immediately clear to anyone whether there should be expert evidence.
I believe that the further one delves into this, the more sensible it is to rely upon the now widely used powers to admit or to reject evidence under Section 78 of the Police and Criminal Evidence Act. We do not need a new, separate and probably unnecessary—if Lord Justice Phillips is right—test to be written into the Bill. But at least if the Government will not give way on this matter—I do not ask the noble Lord, Lord Williams, to

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give a definitive answer tonight because I only put some of this in the letter I wrote to him—they at least ought to give a signpost to the courts when they come to consider some of these difficult issues.
I did not see Clause 30(5)—or, if I did, I did not comprehend that it took in Section 78 of the Police and Criminal Evidence Act and applied it to the whole of this chapter of Part II. I do not believe that all practitioners, all courts and all magistrates will necessarily see that either. Therefore at the very least I put down this amendment in order to provide them with a little signpost. They would at least have their attention drawn to this and perhaps they would have their attention drawn to the fact that it has now been said by Lord Justice Phillips that there is no great difference between their familiar test and that which is in the legislation.
The whole of this is experimental. The noble Lord, Lord Williams, said that this provision seeks to improve the quality of evidence. I am sure it is right to try to do this, but I think that we ought to make it workable, otherwise the whole exercise will end up in a prodigious flow of appeals and all kinds of problems in the course of getting these cases right. I am concerned about this because I know the way in which it would have to be done. I know that it is not necessarily easy to find any guidance when one is sitting in a remote court away from London and having to do one's best in unfamiliar territory. I hope that the noble Lord, Lord Williams, will not think that I am trying to impose upon him anything which is in the least sinister. I just want some clarity about this. I do at least suggest that we ought to have the guideline which I put forward in this amendment. I beg to move.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Viscount for raising this matter and also for his courtesy in correspondence with me. I believe that there is a strong case which he has outlined for providing clear published guidance on these measures when they have received Royal Assent. However, I shall deal with his point now.
In Committee we had a discussion about what self-direction a court should give itself when considering the admissibility of video recorded evidence-in-chief. Subsections (2) and (3) of Clause 26 effectively reproduce the current test for the admission of such evidence in Section 32(a) of the Criminal Justice Act 1988. Subsection (2) of course provides that recordings of this kind may be introduced only if that would be in the interests of justice. Subsection (3) empowers the court to edit recordings to excise any part of them which the court considers to be so prejudicial to the accused that the prejudice which would result outweighs the desirability of using the whole recording; in other words, the well-known balancing exercise.
If further guidance is needed, the noble Viscount is quite right in that a judge may look to Sections 78, 82 and 83 of the Police and Criminal Evidence Act on the admissibility of prosecution evidence and of course to the quite substantial case law which has been built up around those provisions. Clause 30(5) makes it quite plain that the powers in Clause 26, and indeed in the
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rest of the provisions in Chapter I of Part II of the Bill, do not affect the operation of any rule of law relating to evidence in criminal proceedings. If further help is needed, one can look to Clause 58(2) of the Bill which provides that nothing in Part II of the Bill affects any power of a court to exclude evidence at its discretion, whether by preventing questions being put or otherwise.
I well appreciate the noble Viscount's intentions. I hope that I have been able to give the clarity that he looked for. I have already indicated that we shall seek to provide clear guidance on these points for judges and other courts to follow. I do not think therefore that the proposed amendment, if it were included in the Bill, would be of assistance. However, I recognise the great service the noble Viscount has done in giving me the opportunity to, I hope, clarify matters.
Lord Cope of Berkeley: My Lords, before the Minister sits down, will he address the point made by the noble Viscount that a signpost in the terms of the amendment might be helpful in this respect? The Minister reproduced almost exactly the letter he wrote to the noble Viscount, for which we are all grateful, but that did not address the idea that a signpost within these terms would be helpful. Without altering the substance of the law, it would nevertheless make it easier for people to refer to it and to manage it.
Lord Williams of Mostyn: My Lords, I did respond to that point because I said twice that it was our intention to provide clear published guidance when we have Royal Assent. It seems to me that that clear guidance would be of assistance in the circumstances that the noble Viscount described.
Viscount Colville of Culross: My Lords, I am very unhappy about this. The Minister may well wish to issue guidance, but guidance does not have the force of statute. A court looking at this now very wide-ranging proposition that there should be video evidence in all kinds of wholly deserving circumstances will find that it is confronted by two tests. There is the test in Clause 26(2) and (3) and there is the one in the Police and Criminal Evidence Act. The noble Lord is quite right. There are two in that Act. They are in Sections 78 and 82(3). Unless we say on the face of the statute that these are either the same or are different—and if so, in what way they are different—the courts are bound to try to find a difference between them. They will say that if Parliament says that there are two separate exercises of discretion, Parliament must have intended that there should be two separate exercises and not the same one. If Lord Justice Phillips is right and there is no material difference between the two, what has happened is this: when the whole exercise of introducing children's evidence on video was put into the law in 1991 it was thought wise by the draftsman at the time to make special provisions, which are now repeated in the Bill. That was because it was new and no one was quite sure how it would work. No doubt that was a wise thing to do. It has now been working for some years.
We now have what I should have thought is a fairly firm decision by the Divisional Court that really there is no difference. I wonder why the Government now wish

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to perpetuate the distinction that appeared in 1991 when it probably is not necessary. All it will do is to confuse. However much guidance may be given, the only guidance that will be of any use is that there is no difference between the two tests. If that is the guidance that will be given, I cannot see why we have to have two tests in the first place.
I shall not press the matter today. I want to ask the noble Lord, Lord Williams, to look carefully at this case. I am sure he will do so because he always follows up these matters with the greatest care and courtesy. However, I think we have reached the stage where what used to be Section 32A(2) and (3) of the 1988 Act as inserted in 1991 has had its day and that we should now simplify matters and get rid of it. We will then go back to the simple test with which everyone is familiar and on which, as he said, there is a great deal of accumulated case law. I hope that the noble Lord will look at this carefully again. He nods his head. I am sure that is a genuine promise. I believe that we are liable to get into a great deal of litigation and trouble unless this is sorted out. Frankly, guidance will not do. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [Video recorded cross-examination or re-examination]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 41:
Page 20, line 31, leave out ("the") and insert ("such a").
The noble Viscount said: My Lords, this amendment is directed to a different point. In a moment I shall listen carefully to what the noble Lord, Lord Thomas, has to say when he moves to leave out the whole clause. However, assuming that the clause stays in, I shall put a proposition to the noble Lord, Lord Williams, in relation to the place that I have marked down by this amendment.
I envisage that the original material for video-recorded evidence will be taken at an interview, probably with the police and perhaps other appropriate persons present. It will then be available to be looked at by the parties, and in due course by the court. There will be a stage at which a decision has to be taken, probably by the prosecution, that this material is to be used in court, if leave is given, as the evidence-in-chief of that witness. There is likely to be a long period of time before a decision can be taken as to whether the cross-examination and re-examination also shall be by way of video recording because of the problem that was discussed previously in this connection that one has to go through the whole of the process in the Criminal Procedure and Investigations Act before full disclosure takes place and the defence is in a position to cross-examine.
In this amendment I am suggesting that instead of the special measures direction dealing at the same time with the admission of the evidence-in-chief and also the cross-examination, it would be more sensible to provide that those should be dealt with separately and one after the other, as the second one arises, if it does. The Bill as drafted indicates that one would have to take the
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decision about cross-examination at the time when the initial decision about accepting the evidence-in-chief by way of video recording is taken. I cannot believe that that is sufficiently flexible. I am not entirely certain that that is what the Government intend. But if they do, I think it is impracticable. I beg to move.
8.45 p.m.
Lord Williams of Mostyn: My Lords, I understand the purpose of the noble Viscount's amendment to allow courts to direct that there should be a video recorded cross-examination after they have directed that video recorded evidence-in-chief should be admitted. That is already possible under Clause 27 as currently drafted.
Clause 27 requires a provision for cross-examination to be recorded on video to be included in the same direction as the direction that admits video-recorded evidence-in-chief. This could be when the direction to admit video-recorded evidence-in-chief is first made or by way of an amendment to the first direction at a later stage. The intention behind this is to ensure that a video recording of the witness being cross-examined will be shown at trial only if the court has admitted a video recording of the evidence-in-chief.
Unless the video evidence-in-chief has been admitted, a direction for video recorded cross-examination could be pointless. The court might decide not to admit a video recording at all and direct that the witness should give evidence-in-chief live at trial, or it might decide to edit some of the questions and answers in evidence-in-chief.
It could be impractical for a party to cross-examine without knowing what would be in the final tape of the evidence-in-chief. The clause does not exclude the possibility that the court could indicate to either of the parties making an application that, on the assumption that a video recording of the evidence-in-chief will be admissible, the parties can plan for video-recorded evidence-in-chief and for video recorded cross-examination as well.
By making the direction for the cross-examination contingent on the admission of the recording of the evidence-in-chief, the court reserves the right to wait until it has approved the video recording of the evidence-in-chief before confirming the direction for video-recorded cross-examination.
There may be some cases where a party wishes to apply, first, for video-recorded evidence-in-chief to be admitted, and later to come back to the court and apply for a video-recorded cross-examination—perhaps after discussion with the other party or if a witness's circumstances change. In those cases, if the court wished to direct that video-recorded cross-examination should take place, it would simply amend the original direction. That would be the situation both under the clause as it currently stands and, I suggest, if it were amended as indicated in the amendment. I do not think that the amendment would improve matters. I hope my explanation may help.
Viscount Colville of Culross: My Lords, it may not improve matters, but it clarifies them. It does not seem

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to me that what the noble Lord, Lord Williams, has said is immediately apparent in the text of the Bill as it stands. It appears that the decision on both matters has to be taken at the same time. I am sure that that is impracticable, as I have said. However, if the noble Lord says that the Bill is to be interpreted on the basis that there can be a new application after it has been determined that the case is ready and that the defence wishes to carry out cross-examination on the video link and that the original special measures direction can be amended accordingly, then I would be content. That is a matter that could properly go in the guidance. However, I am a little disappointed that such a modest amendment which has, as the noble Lord said, precisely the effect that I hoped it would have is still not acceptable to the Government. I cannot see why. I shall not pursue the matter and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 42.
Page 21, line 22, after ("diligence") insert ("or after due disclosure").
The noble Viscount said: My Lords, I wish to discuss the point of this amendment to make sure that the defence is not put at a disadvantage. I am sorry to tell your Lordships that the preparation of cases in the criminal courts does not always proceed as smoothly as it should. Cases come for trial, or very nearly reach it, without all the necessary preparations having been made. I do not wish to apportion blame; it is simply a fact. What concerns me as regards Clause 27(6) is the test of what a party could not have discovered with reasonable diligence.
Some of the circumstances which might lead to the re-opening of cross-examination already carried out on video could arise at a very late stage. There could be the disclosure of something, perhaps under public interest immunity, which had not previously been thought suitable for disclosure to the defence. There is a continuing duty on the prosecution not only up to, but also during the trial—and on the judge as well—to consider anything which is claimed to be protected by public interest immunity. If there is a change in the situation before the trial, but after the video cross-examination has taken place, then the existence of the material in question cannot possibly be known to the defence and not even reasonable diligence can allow the defence to discover that it existed. However, it would then be in the domain of the court. The defence will know about it, and it will have to persuade the judge that it can recall the witness for further cross-examination. I hope that this will be an extremely rare occurrence. It would be monstrously unfair in such circumstances if anything in the Bill were to prevent the court allowing the defence in a proper case to re-open the matter.
I move the amendment in order to explore the proposition with the noble Lord, Lord Williams. I am sure it is not intended to cut out an application from the defence, even at a late stage, if something which it had not expected arises and affects the way in which the
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cross-examination would have been carried out, had it been known on the video recording. I look forward to the noble Lord's explanation to make sure that there is no injustice built into the subsection as it now stands. I beg to move.
Lord Cope of Berkeley: My Lords, I have some sympathy for the amendment. The Law Society has recently been in touch with me. I have therefore tabled an amendment to a later clause which is intended to improve the disclosure for the defence in various ways. I shall come to it at a later stage, presumably on another day. I have sympathy with what the noble Viscount says about the difficulties of disclosure in some cases and his reason for moving the amendment.
Lord Williams of Mostyn: My Lords, it is always helpful to hear the views of those with practical experience, as the noble Viscount has, of regularly sitting and considering matters where these problems may arise. What he says is worth careful consideration. I cannot accept his example of late disclosure of material that had formerly been the subject of public interest immunity non-disclosure. It seems to me, as a first response, that if there were non-disclosure in such circumstances, then no reasonable diligence would have been able to discover that material. I do not believe that that will bite.
If it is agreeable both to the noble Viscount and your Lordships, I would like to think about this matter with some care to see if the phrasing is absolutely perfect. I put it very much in a neutral way. It may be that one ought to have an "interests of justice" test here so that one would not necessarily attach to the defendant the incompetence of his advisers. I take the noble Viscount's point. I shall think with some care about the general theme he has introduced. As I said, my immediate response is that his illustration in terms of non-disclosure in the public immunity context is not a danger. But there may be other dangers that I would like to think about and discuss with officials. I shall certainly ponder the matter with some care.
Viscount Colville of Culross: My Lords, I shall be very happy with an "interests of justice" test here. At the moment there is a burden on the defence which it may not be fair for it to discharge. If the noble Lord will be kind enough to do what he has promised and look at the matter again, with the possibility that we shall amend the clause, I believe that we will ensure that there is no injustice in a case of this kind. In response to that promise I beg leave to with the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 43.
Leave out Clause 27.
The noble Lord said: My Lords, I seek to leave out Clause 43 entirely. I take some encouragement from what the noble Lord, Lord Williams of Mostyn, said a moment ago in recognising that there are certain dangers in the clause which he wishes to consider. The clause is completely unsatisfactory as it stands. I hope that the

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noble Lord's response to my amendment is not to believe that I am attempting to obstruct cross-examination and re-examination. I am addressing the practical difficulties which arise out of such a system.
The raison d'être of the special measures is that the quality of evidence given by a witness is likely to be diminished by fear, distress or, under Clause 16(1), because of youth or mental incapacity. It has to be recognised that videoed evidence-in-chief and cross-examination on video is unsatisfactory as a way of proceeding and that the most satisfactory kind of evidence before a court, whether before magistrates or a jury, is that of a live witness whose body language, answers and responses can be judged by the tribunal in the appropriate setting. So one begins with a presumption that oral evidence given live is better in the generality of cases than video links of this kind.
The practical difficulties that arose when we discussed this clause on a previous occasion were acknowledged by the noble Lord, Lord Williams of Mostyn. The noble Lord said that in effect we had to make a start somewhere and that we should get matters under way and see how they work out.
Some of those difficulties remain. For example, in discussions on the two previous amendments there seemed to be an assumption that the defence would be applying for the cross-examination of a witness by way of video link. I should have thought that to be a very unlikely occurrence, and that those defending would wish to cross-examine, possibly through a video link, but not by means of a video-recording, and it would be the prosecution who would advance to the court a request for a direction that the cross-examination and re-examination should be recorded. So the approach would come first from the prosecution, not from the defence.
The question then arises: when would that application be made? Would it be made immediately the matter was committed for trial, or, under the new procedure, when it appeared in the Crown Court? Would an interview taken at the time of the original complaint then be produced and the prosecution advance to the judge: "This is our evidence-in-chief. Now we say that through fear and distress this should be the evidence before the jury and cross-examination should be by way of video"?
If it is at that early stage in the proceedings, what impact would it have on the defendant? The question arises: has he appointed counsel? As we know, counsel in a trial, or a solicitor in a magistrates' court, can be appointed at a late stage. Are the defendant's instructions final? Anyone with experience as an advocate in the criminal courts knows that a defendant often advances a completely untrue and futile story which his own advocate will quickly show to be unreliable and untruthful; and from his own advocate's discussion with him in conference it can sometimes be established that he actually has a better defence if he tells what he says is the real truth about what happened. Not long ago I had the experience of losing an appeal in the Court of Appeal and of my client then saying to me, "Now I want to tell you what actually happened".
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What he then told me at that time was a full defence to the original matter and was a much better foundation. So it is simply assumed that when a client is originally seen by his lawyer, solicitor or barrister, what he tells his lawyer will be the defence that ultimately emerges from that discussion at the trial itself.
Under subsection (6) of Clause 27, if a defendant were under pressure from his own side to say, "I understand now that what I said before is untrue and this is the truth", he would not be in a position to apply for cross-examination of a vulnerable witness and would be at a considerable disadvantage as a result. The insertion at some point in the clause of "in the interests of justice" or some other provision, as the noble Lord, Lord Williams of Mostyn, referred to a moment ago, may improve the protection that a defendant should have in all criminal proceedings.
I move this amendment simply on the basis that there may be circumstances where cross-examination and re-examination by way of video-recording is appropriate. However, I do not believe that sufficient thought has been given to what those circumstances are. I look forward to the re-think that the noble Lord has promised, and I hope will promise me when he responds to the amendment. I beg to move.
9 p.m.
Lord Ackner: My Lords, I entirely agree with the noble Lord that direct evidence would be much better than the use of video. However, as I understand it from discussions on previous legislation, the virtue of the video is to have the evidence when it is fresh instead of waiting until the court has convened and then taking the evidence direct. The virtue of the video, both in-chief and, to a lesser state, in cross-examination, is to have the material when it is fresh and therefore more likely to be reliable.
Viscount Colville of Culross: My Lords, this matter has been discussed before. I have great sympathy with the noble Lord, Lord Thomas, in doubting the expediency of including this clause in the Bill.
The noble and learned Lord, Lord Ackner, is right. Ideally, the object of the exercise would be to have the cross-examination when the whole matter is fresh in the witness's mind. The more of a disability the witness is under, the more important that is. It is important for children, whose memory span can be very short. I am sure it is equally important in relation to people with other kinds of disability.
The one point that is absolutely plain from the previous discussions is that nothing of the kind is going to happen under Clause 27. The whole of the procedure under the Criminal Procedure and Investigations Act 1996 would have to have been fulfilled before anything could be done by way of applying for cross-examination on video. I cannot see that that is going to happen at a time when the evidence is fresh in the mind of the witness.
The difference between having a cross-examination on video and having it through a video link at the trial itself is probably no more than a matter of a few weeks.

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If that is all that we shall achieve by Clause 27, I fear it is very little. I am consequently ambivalent about this matter, although I should not wish to oppose it. If the noble Lord and his advisers believe that there is even a small advantage to be gained in terms of obtaining reliable evidence from vulnerable witnesses, I do not wish to stand in their way. However, I believe that we shall find that the use of the provision will be minimalised by the practicalities in the criminal court.
Lord Warner: My Lords, I rise to remind noble Lords that the arguments in relation to video evidence of evidence-in-chief are different from the arguments with regard to video evidence of cross-examination and re-examination. The arguments about taking evidence from vulnerable witnesses close to the event are the arguments for video evidence of evidence-in-chief. The arguments in support of Clause 27 relate to the intimidatory effect on some witnesses of being cross-examined in court and the difficulty in some cases of bringing forward and sustaining a prosecution if the witness is to be cross-examined in a court setting.
The point of Clause 27 is to ensure that some of the low levels of prosecution in cases of sexual offences where vulnerable witnesses are concerned would be mitigated by the provisions of the clause, which would enable a greater degree of security to be given to those witnesses, who would not have the fear of being cross-examined and re-examined in a court setting as distinct from on video. Those seem to me to be arguments for retaining Clause 27 as it stands.
Lord Thomas of Gresford: My Lords, before the noble Lord sits down, perhaps I may ask him what distinction he draws between cross-examination which is recorded through, presumably, a video link and cross-examination where the jury or magistrates are in one room and in an adjoining room, subject to the usual safeguards, there is the witness. Why is there more stress on the witness when the trial is actually taking place than when the evidence is recorded when he or she is being cross-examined?
Lord Warner: My Lords, the danger in this debate is that we are looking at these issues through the eyes of self-confident people who are able to cope with an argument and cross-examination. Many of the people we are talking about are terrified of the thought of going into a court and reliving their experience through cross-examination and re-examination about it. From my own experience in the past of dealing with both children and people with learning disabilities in these circumstances, I believe that the prospect of being in court and being cross-examined directly on an episode which was extremely scarring to them makes them reluctant to come forward and be a prosecution witness.
Lord Cope of Berkeley: My Lords, I agree with the noble Lord, Lord Thomas of Gresford, that live evidence, both evidence-in-chief and cross-examination, is to be preferred over video evidence, whether it is live link or recorded. I believe that I get a better and more complete picture of the story a person is telling if I am
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in the room with them than if I see them on television. Ordinary television is a highly professional production, with proper lighting and so on, which can distort the message, as can an amateur video. Presumably a court video is somewhere between the highly professional production of the BBC and the amateur video with no professionalism about it. I therefore believe that live evidence is to be preferred by the court.
However, like the noble Lord, Lord Warner, I do not think that that is what we are talking about here. We are concerned with the protection of vulnerable witnesses, not only in cases of sexual offences but in any case. The question is whether video evidence is merely an electronic means of having screens—which it seems to me it may be in some respects. But we are still left with the distinction which the noble Lord, Lord Thomas, drew between the Clause 23 provisions for evidence by live link and the Clause 27 provisions for video recording of evidence in advance. I believe the difference is that with live link the timing is entirely in the hands of the court in the way it is progressing with consideration of the matter before it and that therefore tension can build up on the child or vulnerable witness who is prepared and waiting to give his or her evidence by live video link, whereas where the recording is done in a prepared way that element of tension is at least minimised.
I therefore believe that there is a case to be made with regard to cross-examination of some vulnerable witnesses, apart from the case for freshness, to which the noble and learned Lord, Lord Ackner, referred. I accept that that applies to evidence-in-chief, but it is extremely difficult to deliver and may adversely affect the quality of the evidence on cross-examination or re-examination if all the other procedures which are necessary, such as disclosure, and so on, before there can be effective cross-examination are to take place. I believe that cross-examination, even by video, needs to be as near to the court proceedings as possible. That does not necessarily rule out for ever the idea of recording it on video as opposed to it being done by way of a live link.
Lord Williams of Mostyn: My Lords, many of the topics that derive from consideration of Clause 27 have been discussed earlier in the context of particular amendments. I shall try, therefore, not to trample over ground that we have already traversed. Clause 27(1)(a) concerns the cross-examination of the witness and any re-examination to be recorded by means of a video recording; in other words, it is not a video cross-examination but a cross-examination that is recorded on video. The two are quite different.
There is much in what all noble Lords have said with which I agree. Essentially, these measures arose from recommendations of the late Judge Pigot in his report of the Advisory Group on Video Evidence published 10 years ago. He suggested that in the case of children and certain other vulnerable adult witnesses a video-recorded preliminary hearing should be held in informal surroundings away from the atmosphere of the court. I entirely agree with the comment of my noble friend Lord Warner. For someone who is accustomed to

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court—I believe virtually all speakers are—it is difficult to realise the terror that it holds for people without that past experience. It was the intention of the Pigot recommendations that the hearing would be held as soon as practicable after the video of the witness's evidence in chief had been admitted as evidence.
The Pigot approach points to two advantages. The first, to which the noble and learned Lord, Lord Ackner, pointed, is that the questioning of the witness can take place at an early stage. Secondly, it is important to echo the observation of my noble friend Lord Warner that witnesses can be questioned in a relaxed setting away from the more charged atmosphere of a court, which for many people is frightening and may involve adjournments, unfamiliarity and contact with strangers. Many of those factors are deeply distressing to some potential witnesses whose evidence at the moment simply goes unheard.
I take the point made certainly in Committee by the noble Viscount, Lord Colville, that the new disclosure provisions, particularly primary and secondary, mean that in many cases the defence is unlikely to be ready or willing to cross-examine until shortly before the trial begins. Obviously, that waters down the first advantage alluded to by the noble and learned Lord, Lord Ackner. The second advantage remains. For some vulnerable witnesses, whether because of age, incapacity, fear or distress, there is benefit in having the cross-examination closer to the event. Although it is not perfect, bearing in mind the problems of primary and secondary disclosure, it is nevertheless better for many than waiting for the trial.
I believe it is unlikely that most witnesses eligible for special measures will need such a provision. I agree with the noble Lord, Lord Thomas, that very often evidence via a live link will help people who need this assistance to give best evidence. There will be a small number of cases, particularly those involving vulnerable witnesses, in which a live link or video-recorded evidence-in-chief with a live link is not enough for them to give their best evidence. Therefore, in a relatively small number of cases that opportunity should be available. That is the reasoning behind Clause 27. There is the protection that the accused will not be present, although he must be able to see and hear what is being said and communicate with his counsel. The technology is perfectly well able to deal with this. The conduct of the cross-examination will always be under the control of the judge or magistrate. There is no need to edit a tape because the conduct of the cross-examination will be under the control of the court. Clause 27 contains the safeguard of the exclusion of video-recorded cross-examination if it is made other than in conformity with rules of court.
We hope that the judges or magistrates who control video-recorded cross-examinations are the same as those who preside at the trial. I appreciate that that cannot be guaranteed, but I expect the Court Service, judiciary and magistracy to make every effort to ensure that that is so. We believe that there are proper safeguards in terms of legal representation and that subsections (5) and (6) are reasonable. I reiterate my promise to consider again whether or not there is a need for an overarch of the
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interests of justice. I do not think that the fears expressed will be justified in practice. I believe that there are safeguards. I shall consider with some care what has been said. I believe it to be undoubted that we need Clause 27 for a limited number of witnesses.
9.15 p.m.
Lord Thomas of Gresford: My Lords, perhaps I may pick up the phrase "a limited number of witnesses". I understand the argument that where freshness of evidence is required, where it is a matter of memory, in respect of those referred to in Clause 16(1)—namely, children under the age of 17 and those suffering from an incapacity—some cross-examination that is recorded has merit. But for those who seek the protection of special measures under Clause 17(1) in order that the quality of their evidence is not diminished other considerations apply. It is not a question of memory but of fear or distress. Therefore their recollection is likely to be as good at the time of trial as any other witness called to give evidence in person.
I asked the noble Lord, Lord Warner, about the distinction between a recorded and a live link cross-examination in so far as it impinges upon the fear and distress of the witness. His answer was that the court would sit on a certain day; the witness would become apprehensive as that day approached, would suffer nerves, and so on. However, if the evidence were to be recorded, there would be an appointment; the day would approach; the witness would know that at the other end of the link where the recording was taking place there was not simply the counsel or solicitor for the defendant but the defendant who has to be there to give instructions. So what difference is there as regards the fear and distress that the witness will suffer whether the evidence is recorded or live?
The court suite consists of a room in relaxed colours. It is fitted out in order to relax a witness when he gives evidence over a live link. I do not see that the situation involves anything more frightening than might occur at some police station, or wherever it is proposed that the video recording takes place. I do not see the distinction.
A point referred to in Committee, and to which I refer again, is that if a recording is made too far in advance of the trial and there is a change of instructions, disclosure or anything else, the interests of justice will demand that the witness comes to the court at trial time and is cross-examined further over a live link on the matters which have emerged. Therefore in a substantial number of cases the prospects are that the witness will be cross-examined on two separate occasions. Those who seek special measures under Clause 17(1) are likely to be in equal fear or distress whether the evidence is recorded or is on a live link. It seems sensible to me to ensure that they are available at the time of trial when all the preparations are complete, all disclosure has taken place and there is no prospect of a second cross-examination arising.
I await the proposals of the Minister at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 28 [Examination of witness through intermediary]:
Lord Swinfen Lord Swinfen moved Amendment No. 45:
Page 22, line 18, at end insert—
("( ) Rules of court may make provision for the appointment and appropriate training of an intermediary.").
The noble Lord said: My Lords, this amendment to Clause 28 requests the introduction of a statutory requirement for the rules of court to make provision for the appointment and appropriate training of intermediaries. The comments made on this point in Committee still hold.
It is vital that standardised guidance should be available to accompany the introduction of this innovative measure. Witnesses with learning difficulties could benefit enormously from the support of intermediaries and it is a measure which I wholeheartedly support. Nevertheless, I believe that this is also one of the most controversial measures in the Bill which will need to be effective from the outset. If intermediary schemes are not properly and systematically implemented, we run the risk of them being jettisoned on the grounds that they are likely to inhibit the production of quality evidence, a result which would prove to be extremely detrimental to some vulnerable witnesses with learning disabilities. I beg to move.
Lord Williams of Mostyn: My Lords, I agree that an intermediary must be fit for the purpose before he is trusted by the court. Clause 28 already provides that anyone appointed to undertake the task must be approved by the court. I can tell your Lordships—and I hope it is of assistance to the noble Lord who moved the amendment—that before Clause 28 can be implemented, we shall need to have proper guidelines setting out the role of intermediaries and what qualifications and training would be appropriate.
The steering group to which I referred earlier, implementing the Speaking Up for Justice recommendations, is looking at what that guidance should be both for potential intermediaries and those who may be involved in questioning a witness with an intermediary's assistance. That latter point should not be overlooked in terms of professional training and competence.
There are similar schemes in jurisdictions as diverse as South Africa, the United States, Western Australia, New Zealand and the Irish Republic. We are looking at the lessons which we can learn from them.
It has taken years to develop an accreditation scheme and training for language interpreters. An agreement has now been introduced with the aim of standardising arrangements for sign language interpreters, which has been adopted by all the main agencies. We hope to ensure that, by the end of 2001, every sign language interpreter working in courts and police stations will be selected from the Council for the Advancement of Communication with Deaf People directory. In the interim, agencies are encouraged to use accredited interpreters wherever possible.
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Certainly, I need to remind myself that the communication needs of witnesses with whom intermediaries work vary enormously. Some of those witnesses may be children and some may be disabled. For a variety of reasons, it is wrong just to use the tag "disabled" without remembering the different natures, causes and consequences of disabilities. There are a variety of effects. Some people may be disordered although capable of giving evidence, which, in some circumstances, is capable of being safely relied upon.
We believe that the standards and safeguards need to be flexible. We do not want rigidity in the form of a statutory regime. We believe that decent working guidelines are likely to be better. We do not wish to deny access to justice for those witnesses who have difficulties. Therefore, I hope that I have met the spirit of what the noble Lord is seeking. I hope that I have assured him that we are working towards a common purpose. I believe that our way is likely to achieve a better result.
Lord Swinfen: My Lords, that is a most encouraging response for which I thank the Minister. I am sure that when the noble Lord, Lord Rix, reads it, he will be as encouraged as I am. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Warning to jury]:
Lord Swinfen Lord Swinfen moved Amendment No. 46:
Page 23, line 20, at end insert (", or
(b) a statement made under section 30(1).").
The noble Lord said: My Lords, this amendment extends the existing warning to the jury against pre-judging the defendant in cases where special measures are employed to include a warning against pre-judging the witness. This is vital to avoid both unwitting and deliberate prejudice on the part of the jury who may not be aware of why the special measures are being employed, and the role those special measures have in improving the quality of the witness's evidence.
The noble Lord, Lord Rix, has corresponded at length with the Minister in order to impress upon him the importance of the amendment. He has asked me to pass on his thanks to the Minister. Perhaps I may also thank him for copying all correspondence on the Bill to me. That has been most useful.
The Minister advised the noble Lord, Lord Rix, that training of the judiciary is the crux of the matter. The Minister has indicated on earlier occasions that he expects judges to refer to the use of special measures as part of their summing up and their outline of proper inferences in each case. I invite him today to advise the House of his department's plans to ensure that judges are well trained in the proper use of special measures and that, in turn, they also educate the jury in cases where special measures are employed.
My final point is that I fully accept the need for a warning to protect the civil liberties of the defendant. In no way do I wish to detract from that. However, it seems to me that as a number of these special measures have never been used before, one would wish to guard against

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prejudice in the direction of either party. It needs to be understood that special measures are being employed to enhance the quality of evidence produced and that their use has no bearing on the culpability of either party. I beg to move.
Lord Williams of Mostyn: My Lords, Clause 30(2) provides that evidence given in the context that we are discussing has the same status as if it has been given in direct oral evidence in court. Subsection (4) provides that in estimating the weight to be attached to the statement, the court must have regard to all the circumstances from which an inference can reasonably be drawn.
I am, indeed, grateful for the correspondence and the conversations I have had with the noble Lord, Lord Rix. I am able to tell the House what I told him; that is, in those circumstances I do not believe that a judge would fail to give the jury instruction on the status of the evidence, the new law on competency and the significance, if any, of special measures used in the trial. I do not believe that judges would fail to include mention of the provision in Clause 30(2) to the effect which I indicated a moment ago, that they are to be treated as if made in direct oral testimony.
As the noble Lord stated, the key to this is training—I repeat, not just for judges and magistrates, but for practitioners as well. We are developing a training strategy which is being taken forward by the inter-departmental steering group, which I mentioned earlier. I am happy to tell your Lordships that that group is working in close consultation with the Judicial Studies Board, which does remarkable work in the training of the judiciary. It is, of course, a judge-led body responsible for judicial training, not only of judges but the magistracy as well.
I know that the Judicial Studies Board, and in particular its Equal Treatment Advisory Committee, is happy to consider any suggestions for improving the training of judges, including magistrates, in relation to these issues.
I think that that should be a reasonable comfort. It is the undertaking that I have given to the noble Lord, Lord Rix, in our correspondence and conversations.
Lord Swinfen: My Lords, I thank the Minister for his response which is, I believe, a comfort. It is good to have it on the official record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Swinfen Lord Swinfen moved Amendment No. 47:
Page 23, line 20, at end insert—
("( ) For the avoidance of doubt, the judge must not warn the jury that it is unsafe to rely on the evidence of a witness on the ground only that the witness is a patient in a special hospital detained under Part III of the Mental Health Act 1983.").
The noble Lord said: My Lords, this is an amendment that I was asked to table by the Law Society. I understand that in the early 1980s a number of nurses at Rampton Special Hospital were
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prosecuted for the ill-treatment of several patients. This was under the provisions of Section 126 of the Mental Health Act 1959 which was subsequently replaced by a similar provision in Section 127 of the Mental Health Act 1983. The nurses' appeal against their conviction was upheld in the Judicial Committee of your Lordships' House in R v. Spencer in 1987.
I am told that the prosecution case depended wholly on the evidence of patients who were detained at Rampton as a result of earlier criminal proceedings against them. In considering the appeal, the committee ruled that while the full corroboration warning given in cases of sexual offences was not required in a case under the provisions of the Mental Health Act, juries nevertheless had to be warned in clear terms of the dangers of convicting on the unsupported evidence of a single patient and that one patient could not be treated as supporting the evidence of another patient.
In the Judicial Committee the noble and learned Lord, Lord Ackner, to whom I have shown my notes and who is therefore aware of what I will be saying, stated that three dangers in this case justified the jury being told to act with great caution: first, that the patients were all persons of bad character; secondly, that they were all suffering from some form of mental disorder; and, thirdly, that they might all have conspired together to make false allegations.
The noble and learned Lord prefaced those three criteria for warning the jury to treat the patients' evidence with caution by saying:
"The complainants were men of bad character. They had been sent to Rampton rather than to an ordinary prison … [They were] mentally unbalanced … anti-authoritarian, prone to lie or exaggerate … [and] could well have old scores which they were seeking to pay off".
The ruling in the above case is clearly only applicable to cases involving mentally disordered people who have committed criminal offences. However, it has served to encourage the discriminatory belief that people with mental health problems or learning disabilities, particularly special hospital patients, can never be believed.
A number of inquiries have taken place into all three special hospitals in the past 20 years. Several of those have either looked specifically at allegations of ill-treatment of patients by staff or have raised that as a major cause for concern. Many of those inquiries commented on the inadequacies of the hospital complaints procedures and the difficulties faced by patients in getting their complaints taken seriously.
Patients in special hospitals are clearly vulnerable and should be entitled to protection against abuse and ill-treatment. They should therefore be able to pursue allegations of abuse against them and be eligible for the special measures available under this Bill to enable them to give their best evidence in court. It is then for the court to decide the weight of the evidence put before it as in other cases. It is possible that provisions in this Bill will make the ruling in R v. Spencer redundant. The amendment seeks assurances, for the avoidance of doubt, that vulnerable witnesses will not be excluded from the Bill's provisions purely

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on the grounds that they were patients in special hospitals and detained under the Mental Health Act. I beg to move.
Lord Ackner: My Lords, a shiver always goes down one's spine when one knows that a previous judicial statement is going to be cited. It is always a relief when one finds that the judicial statement emanates from the Appellate Committee of your Lordships' House because, unless there was a minority, there are bound to be four other Law Lords to share the blame. I have merely done the work which they accepted.
I cannot understand the criticism that one should caution a jury to be particularly careful when one is dealing with men of bad character who have been sent, having been convicted of crime, to a special hospital because of their mental state. The amendment states that for the avoidance of doubt,
"The judge must not warn the jury that it is unsafe".
I do not think a judge would so warn the jury. He may well warn the jury that it might be unsafe,
"to rely on the evidence of a witness on the ground",
etc. I do not see what can be wrong in advising a jury to take particular caution in regard to evidence emanating from the circumstances described by the noble Lord, Lord Swinfen. I would be against this amendment.
Lord Williams of Mostyn: My Lords, since the Criminal Justice and Public Order Act 1994 and the judgment by the Court of Appeal in the case of Makanjuola in 1995, there is no absolute obligation on the judiciary to warn the jury that a witness is suspect or that the jury should be careful of relying on the evidence without some form of co-operation purely because the witness falls into a particular category.
The judge remains under a duty to ensure that the case for and against the defendant is put fairly and adequately. I agree with the thrust of the remarks made by the noble and learned Lord, Lord Ackner. If the judge finds some evidential basis for suggesting that the witness's evidence may be unreliable, it is the judge's duty to decide what he should say, in what terms, according to the situation of the witness in a particular trial.
The Bill redraws the law on competence. It provides special measures for certain witnesses, but I could not accept the proposition that no comment could be made in the circumstances described by the noble Lord, Lord Swinfen, and the noble and learned Lord, Lord Ackner. We should not constrain a judge summing up or a magistrate approaching a witness's evidence in that way.
When we talk about best quality evidence, we mean evidence that is as coherent as the witness, with such assistance as is appropriate, can give—evidence that is as complete and coherent as the witness can manage. If he needs help, so be it. That does not mean that the evidence of persons under a disability should have any more or less status than the status that would be attached if those persons were not in need of special measures. That still means that an untruthful witness is still
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untruthful, even if assisted with special measures. A misguided witness in those circumstances may remain a misguided witness.
One ought not to place an absolute prohibition on a judge coming to his conclusion as to what he ought to say about evidence that may be suspect. In this circumstance, recognising that this is a boomerang that will come back to strike me on the head later, we ought to leave it to the discretion of the judges in this particular defined circumstance.
Lord Swinfen: I shall read with considerable interest, as will my advisers, the Minister's remarks. This probing amendment is designed to make certain that patients in special hospitals are not automatically considered to be guilty and making a nuisance of themselves, but to ensure that they have a fair opportunity; that if they are mistreated, justice is done to them.
If their evidence in court appears dishonest to the judge, it will appear to be dishonest also to the jury. The judge has a right and duty to draw that fact to the jury's attention. But such witnesses should not be considered before they even stand to give evidence necessarily to be unreliable and not to be trusted. One has to see the evidence. As has been said before, the demeanour of the witness must also be seen. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Complainants in proceedings for sexual offences]:
Lord Thomas of Gresford Lord Thomas of Gresford had given notice of his intention to move Amendment No. 48:
Page 24, line 5, at beginning insert ("Without the leave of the court,").
The noble Lord said: My Lords, I can just imagine the tabloid headlines:
"Gotcha! New Labour supports the discretion of the judges".
Indeed, that has to be a tabloid headline for tomorrow.
I do not propose to move Amendment No. 48 at this time. This is a matter which engaged your Lordships' House in Committee for well over an hour and a half some weeks ago. It is not appropriate for me to seek the opinion of the House at this late hour and with so few noble Lords present in the Chamber. Therefore, this is a matter to which I shall return on Third Reading.
[Amendment No. 48 not moved.]
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 49:
Page 24, line 10, at end insert—
("except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine.").
The noble and learned Lord said: My Lords, I adopt the same approach mutatis mutandis and, accordingly, will take up no time of the House.
[Amendment No. 49 not moved.]
Baroness Mallalieu Baroness Mallalieu had given notice of her intention to move Amendment No. 50:
Page 24, line 10, at end insert—
("( ) This section shall not come into force until the Secretary of State has certified that, in his opinion and in the light of experience gained after the passing of this Act, it is necessary to bring this section into force for the reasonable protection in criminal proceedings of witnesses who are complainants in sexual offences.").
The noble Baroness said: My Lords, for the same reasons, I propose not to move Amendment No. 50 tonight.
[Amendment No. 50 not moved.]
[Amendment No. 51 not moved.]
Clause 35 [Direction prohibiting accused from cross-examining particular witness]:
[Amendment No. 52 not moved.]
Clause 36 [Further provisions about directions under section 35]:
[Amendment No. 53 not moved.]
Clause 37 [Defence representation for purposes of cross-examination]:
[Amendments Nos. 54 and 55 not moved.]
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at fourteen minutes before ten o'clock.