Lords Sitting of 8 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 Oxford.

Mergers: Protection of Employees' Rights
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
Whether it is possible for companies intent upon merging to avoid the obligations in the Transfers of Undertakings (Protection of Employment) Regulations by conducting a "merger" by way of share transfer, and, if so, what further steps should be taken to protect employees' interests.
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, the regulations are designed to safeguard employees' interests when the business in which they work is transferred to a new employer. They do not apply in cases of takeover by share transfer as these involve no change in the employer's legal identity or contractual relationship with the employees. The employees' rights are unaffected and the employing company, if it wishes to seek changes to terms and conditions or to make redundancies, is in exactly the same position after the takeover as it was before.
Baroness Turner of Camden: My Lords, I thank my noble friend for that Answer. Is he aware of the situation in which employees have been affected by a merger as a result of share transfer and the superior rights which exist under the regulations referred to in my Question have not applied? As a result, their union is pursuing the matter in the courts. It appears that a loophole exists
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which should be closed; otherwise the union is likely to pursue the matter beyond the courts in this country, possibly to Europe, involving a great deal of time, energy and money. Would it not be better if the regulations were suitably amended?
Lord Simon of Highbury: My Lords, I am aware of situations in which share transfer has led to redundancies. However, I would make it clear that there are two separate circumstances. In the first, the legal ownership changes; in the second, it does not. In the latter case of share transfer, there is the collective redundancies directive under which recourse could be taken for unsatisfactory dismissal. That remains the most effective recourse to justice.
Baroness Gardner of Parkes: My Lords, will the Minister confirm that when two companies merge in this way the redundancy provisions favour the employees to the extent that considerable consultation must take place and the larger the firm the more extensive the degree of consultation? Will he also confirm that the Government do not support the view currently expressed by London Underground, as opposed to every other employer, that employees should be guaranteed their jobs for 15 years?
Lord Simon of Highbury: My Lords, I confirm the noble Baroness's contention that under normal circumstances there is extensive consultation by companies, as is required under merger conditions. That is well protected by the existing law and frequently takes place. However, there are circumstances in which it does not, which is why a sound and effective law must stay in place. I make no statement about London Underground because I am not aware of the circumstances.
Lord Tebbit: My Lords, is it the case that such regulations and laws do not exist in the United States? Is not that part of the reason why, as the Prime Minister explained, the United States is far more effective in creating jobs and expanding the economy than our sclerotic economies in Europe? If there is a loophole,

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would it not be correct for the Prime Minister to ask Ministers to expand it so that we can become more like America? After all, that is his policy.
Lord Simon of Highbury: My Lords, I point out again that there is no loophole. There are two different legal circumstances; change of ownership, which is a takeover circumstance, and share transfer, which is a merger circumstance. They are differently treated in law and that is successful. Although we are consulting, at this time we see no reason to change the basic legal principle which applies. As regards differences between Europe and the United States, I know that the noble Lord, Lord Tebbit, is fully aware of the different circumstances which apply in the markets.
Lord Brookman: My Lords, does the Minister agree that the 1980s was a most unfortunate period for working people in the United Kingdom, being unregulated and unfair? Are not the Government trying to be fair to employers and employees?
Lord Simon of Highbury: My Lords, I thank my noble friend for that question. It is exactly the spirit which lies behind our new Bill which will soon come to this House. I hope that it is received in exactly the spirit which I then detected in the air.
Lord Razzall: My Lords, without going into the hyperbole of the previous question, does the Minister agree that there is no evidence whatever that the Transfer of Undertakings (Protection of Employment) Regulations have had the remotest influence on unemployment, as was suggested by the noble Lord, Lord Tebbit?
Lord Simon of Highbury: My Lords, we agree.

Public Roads: Prevention of Accidents
2.40 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What action they are taking to improve arrangements for applying salt and grit to public roads in the United Kingdom, including those for which local authorities have responsibilities, in order to reduce accidents in winter conditions.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, arrangements for applying salt on trunk and national roads in the United Kingdom are reviewed on a regular basis in the light of changed circumstances, usage and technological developments. We encourage local highway or roads authorities to do the same.
Lord Campbell of Croy: My Lords, I am grateful to the noble Lord for his reply. Are the Government concerned about reports that some local authorities have
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been reducing the resources needed to keep roads safe? Does he agree that our climate produces sudden changes in temperature to below freezing in different parts of the country and that that often happens, most unfortunately, at holiday periods and at weekends?
Lord Ampthill: My Lords, it is all the last government's fault!
Lord Whitty: My Lords, the situation under the last government, as under this Government, is dealt with through their operation of the Highways Agency in England and the Secretaries of State for Scotland and Wales in relation to their roads. There is a fairly firm code of practice as to what is required in terms of salt application in that it should be undertaken before the ice forms or snow settles on the roads. We give similar advice to local authorities. However, it is not part of our interpretation of the law or that advice that it is the responsibility of the highways authorities to keep open all roads at all times.
Lord Campbell of Croy: My Lords, if the Government were to ignore the back-slidings of such local authorities, would they not find themselves on a slippery slope? Moreover, in trying to defend them, would not the noble Lord find himself on very thin ice?
Lord Dixon-Smith: My Lords, the House will sympathise with anyone who must try to predict the vagaries of the wonderful climate which we enjoy in the United Kingdom. Is the Minister satisfied that the arrangements for distributing funds to local authorities in the United Kingdom are satisfactory to meet the needs of that particular variable in their responsibilities?
Lord Whitty: My Lords, I thank the noble Lord for intervening before I had to conjure up a meterological riposte to the noble Lord, Lord Campbell of Croy. In normal circumstances, the allocations which we give to local authorities to cover maintenance of the highway and the removal of obstructions to the highway, which include snow and ice, are adequate. Clearly, there are other means whereby the national government may assist in emergency situations.

Genetically Modified Food
2.46 p.m.
Baroness Ludford Baroness Ludford asked Her Majesty's Government:
Whether they will impose a five-year moratorium on commercial growing of genetically modified food until adequate independent research and testing of its health and environmental consequences has been carried out, and whether they will seek a similar moratorium throughout the European Union.
Lord Whitty: My Lords, no genetically modified crops are grown in the United Kingdom commercially. Therefore, there is no need to introduce a moratorium on commercial growing either in the UK or in the EU. There are some carefully controlled, limited-scale trials

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taking place. The Government believe that there is no evidence to justify demands for those to be stopped on environmental grounds.
Baroness Ludford: My Lords, I thank the Minister for that reply. Will he accept that a freeze of several years—English Nature suggested three but preferably five—is pro-science in that it allows more research and field trials to be carried out? That would help to convince consumers that the health and environmental risks have been fully explored as the Consumers Association believes that at present consumers are not convinced.
Lord Whitty: My Lords, two points arise in relation to that. First, as regards the growing of crops, I agree with the noble Baroness that caution is necessary. That is why we have hitherto limited it to fairly small-scale crops being produced in the United Kingdom and why we are giving a very limited approval to field farm-scale experiments. However, we need to engage in such experiments for the very reason which English Nature drew to our attention; namely, that it is not possible to assess the environmental effects of commercially grown crops without growing them on that scale and measuring that impact on the surrounding habitats and biodiversity.
As regards consumers, I agree with the noble Baroness that consumers need to be aware that there are products which have been approved which contain genetically modified organisms.
Lord Hardy of Wath: My Lords, does my noble friend accept that there is serious concern about the possibility of the rapid development of herbicide-resistant crops, on the ground that there is already enough poison within the English countryside? While I am sure that the Government will maintain careful consideration of the matter, will they take the point that leadership from Britain in that area may be extremely relevant within the wider Europe?
Lord Whitty: My Lords, it is very important indeed that the European Union acts as a whole in relation to this matter. The structure of permission is Europe-wide. The way in which we are approaching permission to grow genetically modified crops on that very limited basis takes account of the possible danger to the wider environment—plants, insects, other species and habitats which may be affected. We are adopting a cautious approach. It is necessary to test out those effects on a substantial scale but in limited locations, and in circumstances which are controlled extremely carefully.
Viscount Addison: My Lords, in his reply the Minister said that experiments were carefully controlled. Does he agree that to have only one gentleman, who is a doctor, to keep an eye on the 333 sites in the United Kingdom is not the way to control them carefully? I talk in particular about agricultural crops.
Lord Whitty: My Lords, I am not sure to which resources the noble Viscount refers. Perhaps I may write
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to him to clarify the situation in terms of resources. All experimental areas are now monitored by the Health and Safety Executive, which has powers to act if necessary.
Lord Taverne: My Lords, does the Minister agree that herbicide-resistant crops can reduce the use of herbicides and thereby benefit the environment? Will the Government ensure that any moratorium is not used to prevent the development and prosperity of an industry which, subject to vigorous safeguards, is not only economically important but can also benefit greatly the environment and health?
Lord Whitty: My Lords, we are not, of course, advocating a moratorium in the sense the noble Lord proposes. We believe that potentially there will be great benefit to the world as a whole if we can produce crops that do not require the number of herbicides that current technology requires. Nevertheless, there are a lot of unknowns in this. As the noble Baroness, Lady Ludford, indicated, we all need to be very careful. We do not know the full consequences of the new technology. While there is great potential, we must be protective of the environment as well as consumers.
Lord Bruce of Donington: My Lords, on the assumption that Her Majesty's Government may consider it advisable to ask for a moratorium, as inferred by the Question, have the Government ever considered the means of practical enforcement of such a moratorium, not only in the United Kingdom but also in Europe as a whole where there is, of course, a widespread disregard of the law in any event?
Lord Whitty: My Lords, as always, my noble friend has turned the subject into a more general argument. By and large, I would defend the regimes of our partners in the European Union. Everyone in the European Union is concerned that we do not open up problems that the unknown consequences of genetically-modified organisms may produce. Throughout the European Union we are equally convinced that there is some scientific and potentially substantial economic benefit if such organisms can be produced safely. I submit that it is better that we act co-operatively with our European partners in this matter rather than each taking separate decisions.
The Lord Bishop of Oxford: My Lords, while accepting that there is nothing wrong with genetic modification by the most advanced scientific methods— indeed there may be huge benefits—does the Minister share my concern that we may be driven faster down that road by commercial considerations than is desirable? Is he confident that we have adequate safeguards in place to prevent that happening?
Lord Whitty: My Lords, undoubtedly, there are commercial pressures and money to be made in this area. It is the responsibility of the national and the European authorities to ensure that the interests of the consumer and the long-term interests of the environment are protected. We have mechanisms and physical

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controls in place to ensure that that happens. However, we are looking carefully at a number of areas, including consumer labelling, where perhaps we need to take some further measures.
Lord Tebbit: My Lords, may I help the Minister? The point that my noble friend was making, and which I think he misunderstood in an earlier Question, was that it is public knowledge, so far as I know, that there is but one inspector to look after all 300-odd sites where the experimental crops are grown. Whatever the resources are that have been allocated in financial terms, it comes down to one man who clearly cannot adequately monitor all those sites.
Lord Whitty: My Lords, as I indicated in reply to the earlier question, I shall need to check on the exact level of resources both for the Health and Safety Executive and for the agricultural side. Clearly, resources for inspection in these areas are always scarce. It is our belief that we allocate them to the best advantage. Indeed, as noble Lords will know, there have already been prosecutions in this area as a result of commercial outfits not completely observing the protections. I believe that that is a good sign and indicates that our inspections are working.
Baroness Castle of Blackburn: Will the Government ensure that research institutes which are inquiring into the implications of genetically modified foods do not become so dependent on funds from commercial interests like Monsanto that any scientist employed by them who enters doubts about these foods is liable to be suspended and his research vilified?
Lord Whitty: My Lords, I note what my noble friend says. In relation to the particular example to which she is no doubt alluding, that is primarily a matter between the institute and the scientists concerned. Our main concern is to broaden the knowledge in this area; and to ensure that it is not driven by particular interests. The Government will approach the advice that they take in that way. It is hoped that that will be me case throughout Europe as well.
Baroness Byford: My Lords, in view of all the pressure being brought to bear on the Government, can the Minister say why they are not considering delaying the experiments that are being conducted? Last week we heard that the water companies are concerned about them. The general public are not in favour of them. In regard to pollen being transferred, there are great areas of uncertainty. Will the Minister clarify the position for us?
Lord Whitty: My Lords, I should have thought from most of what I have said that it is clear the Government recognise that there is widespread concern; and that we need to know more about the effects of growing such crops on the food chain. In order to do that, experiments must be carried out—not only small-scale experiments, which already exist, but also large-scale ones—so that
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the effects on die wider environment can be judged were we to move to commercial production. My objective, and that sought by the noble Baroness, namely that we do not proceed to commercial operations without knowing the answers to all those unknowns, can be met only by some degree of experimentation. It is that carefully controlled experimentation that is permitted by the Government.
Baroness Ludford: My Lords, my Question differed from that of the noble Baroness, Lady Byford. I was not seeking to postpone research. Indeed, I sought further research and a moratorium on commercial growing. It is only by further research that we can reassure consumers. At the end of the day it is the people who will have to accept them.
Lord Whitty: My Lords, I note the clarification of the noble Baroness's Question. In this country we are not at the stage of giving permits to commercially grown crops. That will depend on the outcome of the trials that we are currently conducting.
Lord Skelmersdale: My Lords, will the Minister say whether the experimental crops will ultimately be destroyed? If so, will that not be to the great satisfaction of the consumer?
Lord Whitty: My Lords, the outcome of those tests has yet to be assessed. It is not normal practice for us to destroy the evidence, positive or negative, that the trials yield. Currently, the intention is not to destroy the experimental crops; nor do I think it would be scientifically sensible to do so.

Cyprus
2.59 p.m.
Lord Harris of Haringey Lord Harris of Haringey asked Her Majesty's Government:
What progress they are making in securing a peaceful settlement in Cyprus.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we remain determined to find a solution to the Cyprus problem. The best means of achieving this is through the United Nations Secretary-General's mission of good offices on the basis laid down in Security Council resolutions for a bizonal, bicommunal federation. United Nations Security Council Resolution 1218 of 22nd December 1998 is an important step forward. It sets out clear objectives for reducing tension and for progress towards a comprehensive settlement. My right honourable friend the Prime Minister has made clear that Britain is committed to working for its full implementation alongside other members of me international community.
Lord Harris of Haringey: My Lords, I am grateful to my noble friend for that Answer, and in particular for

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her confirmation of our support for the United Nations resolutions. I take it that it is recognised that the only satisfactory route to a long-term settlement is on the basis of that UN resolution on a bicommunal, bizonal federation. However, I should be grateful if my noble friend would confirm her support for Cyprus's application for membership of the European Union. What is the timetable for that likely to be and will that application be affected by the search for a settlement?
Baroness Symons of Vernham Dean: My Lords, I had hoped that our position on Cyprus had been made clear by what my right honourable friend said in December when he called for a sustained effort towards securing a just, comprehensive and lasting settlement in Cyprus, based on a bizonal, bicommunal federation, and by his strong endorsement of Security Council Resolution 1218. I confirm that the United Kingdom is looking forward to the eventual accession of Cyprus. As I am sure that my noble friend and the whole House know, this process involves discussion under the various chapters of the acquis. We are hoping that that will go ahead on the basis of the conferences which are due to take place at the end of this presidency and then as we work towards the end of the year.
Lord Pilkington of Oxenford: My Lords, in considering this very difficult question, will the Government bear in mind the difficulties between the two communities and the fact that the Turks feel that they have suffered from the majority Greek population, particularly in the 1970s? Will some sensitivity be shown to the Turkish community in this matter, particularly in relation to the accession of Cyprus to the European Union, otherwise the second stage may be worse than the first?
Baroness Symons of Vernham Dean: My Lords, I think that we can draw some comfort from the current process, under the aegis of Dame Ann Hercus who is discussing Cyprus with both sections of the community. Those discussions were resumed at the beginning of February and we have to hope that they will bear some fruit. It is important to draw the attention of the House to the fact that some of the tensions on the island were reduced by the decision not to have S-300 weapons on the island. That is an enormously important step. When I was in Turkey before Christmas, my interlocutors made it clear to me that they regarded the possible placing of those weapons on the island with considerable disfavour. The fact that that has not happened must reduce the tension. Perhaps I may also draw the noble Lord's attention to the fact that there is a certain amount of bicommunal activity, notably in the current meetings between businessmen.
Lord Monson: My Lords, following the question from the noble Lord, Lord Pilkington, does the Minister agree that one of the best contributions that Her Majesty's Government could make would be to remind the Greek Cypriot Government that the Zurich and London Treaties, entered into almost exactly 40 years ago, are still in force and legally binding and that,
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therefore, if the Greek Cypriots want to join the EU, they must first reach some peaceful and permanent accommodation with their Turkish Cypriot neighbours?
Baroness Symons of Vernham Dean: Yes, my Lords. We urge both sides to discuss the possibility of joining the EU. I hope that the measures that I announced in answer to the noble Lord, Lord Pilkington, have gone some way towards that. However, it is enormously important that the two communities talk not only to Dame Ann, but also to each other. I remind the noble Lord that President Clerides has invited Mr. Denktash to have some discussions about the way forward with regard to the Cypriot application for EU membership.
Lord Monkswell: My Lords, bearing in mind that economic problems usually underlie social conflict, can my noble friend assure the House that if a bipartisan solution can be arrived at and if Cyprus's accession to the European Union can be successfully negotiated, the European Union will engage in a major effort with regard to the economic development of the whole of the island of Cyprus?
Baroness Symons of Vernham Dean: Yes, my Lords. We are working on the whole question of trying to resolve the difficulties of dealing with what is an essentially divided island with an application to join the EU. The Vienna Council agreed that its objectives with regard to the accession of a united island must involve concentrating on a political settlement. We must look to the leaders of both Cypriot communities to co-operate with the United Nations and its desires to that end as represented by UNSCR 1218, to which I have already referred. The United Kingdom is working with our EU partners to ensure that the technical difficulties, which undoubtedly exist and which were caused by the division of the island, are not overlooked in the accession negotiations. We believe that it is better to identify those obstacles now than to allow them to develop into more serious obstacles further down the track.
Lord Moynihan: My Lords, is the Minister in a position to confirm press reports concerning allegations by Turkey that the PKK leader, Abdullah Ocalan, was carrying a Greek Cypriot passport when he was arrested? To what extent does the Minister consider that the assistance given by the Greek Government to Abdullah Ocalan has adversely affected the current initiatives to secure a just and lasting settlement that will end the long-standing division of Cyprus?
Baroness Symons of Vernham Dean: My Lords, I regret that I am not in a position to confirm the press reports to which the noble Lord refers although, as I am sure that he will appreciate, press reports are not always reliable. I shall check whether any reliable information is available on that point, and I shall contact the noble Lord because I realise that that is an area in which the temperature can be raised. However, the important point

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is to concentrate on having a dialogue on the island, as well as on lowering the tensions which exist between Greece and Turkey on this issue.
Lord Wallace of Saltaire: My Lords, does the Minister agree that 18 years of Greek membership of the European Union has, sadly, not helped to improve relations between Greece and Turkey as much as one might have expected, and that the importation of Greek Cyprus into the European Union without a settlement of the conflict might exacerbate relations with Turkey rather than ease them? Therefore, is it not extremely important to ensure that the issue is resolved before Cyprus joins?
Baroness Symons of Vernham Dean: My Lords, it is very important to work for peace in Cyprus in any case. The possible accession of Cyprus to the EU focuses the attention not only of the friends of Cyprus—I would hope that we would all count the United Kingdom Government among that number—but also of our partners in the EU on working to that end. Rather than cast our minds back over 18 years, we should look forward. As I said earlier, tension has been lowered by not siting the S-300 missiles on the island. In addition, the UNSCRs are now in place and a United Nations envoy, Dame Ann Hercus, is now talking to both sides. We also have an opportunity to get the people of the island together, notably in some of the initiatives now taking place among the business community. I hope that the noble Lord will agree that we should now be looking forward, not back.

Business
3.8 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Whitty will, with the leave of the House, repeat a Statement being made in another place on access to open countryside.

Business of the House: Debates, 11th March
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in her name on the Order Paper.
Moved, That Standing Order 38(4) (Arrangement of the Order Paper) be dispensed with on Thursday next to enable the Motion in the name of the Baroness Blatch to be taken immediately after the Disability Rights Commission Bill. — (Lord Williams of Mostyn.)
On Question, Motion agreed to.

Road Traffic (NHS Charges) BUI
Read a third time.
Lord Hunt of Kings Heath: My Lords, I beg to move that this Bill do now pass.
I begin by thanking all noble Lords who have taken an interest in this Bill. Notwithstanding the perhaps sparse attendance during much of the deliberations on the Bill, we had some interesting and detailed discussions on the issues. I am grateful to all those who took part in our deliberations and particularly acknowledge the contributions of the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones. We had a most constructive debate. I am also grateful for the agreement reached, again with particular thanks to the noble Earl, Lord Howe, which allows this Bill to proceed today. The noble Earl is to be congratulated on his identification of a drafting point in Clause 3(2) and I am glad that we were able to agree to his amendment.
The main aim of the Bill is to simplify the arrangements for the collection of NHS charges for all the parties concerned and to raise additional income for the National Health Service. The Bill will undoubtedly bring benefit to the NHS, and the co-operation of noble Lords during the passage of this Bill is much appreciated.
Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)
On Question, Bill passed, and returned to the Commons with an amendment.

Youth Justice and Criminal Evidence Bill [H.L.]
3.12 p.m.
Lord Williams of Mostyn: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
Clause 40 [Restriction on evidence or questions about complainant's sexual history]:
Lord Ackner Lord Ackner moved Amendment No. 55A:
Page 28, leave out line 24.
The noble and learned Lord said: My Lords, with the leave of the House, in moving Amendment No. 55A, I shall also speak to the other amendments in this group which are tabled in my name. They are all designed to achieve one specific end; that is, to ensure that the status quo remains.
The subject matter of Clause 40 is the restriction on evidence or questions about the complainant's sexual history. The issue arising out of the amendments that I seek to put forward is whether the statutory provision restricting that material—it was brought into force over 25 years ago and runs to two short paragraphs in the legislation—should be supplanted by a new clause that

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takes over a page in the Bill before us; it is convoluted, difficult to follow and is otherwise in many respects undesirable. I hope that I put the matter dispassionately.
On the third day of Committee stage the noble Lord, Lord Cope, said this:
"These are difficult matters. Many of the legal profession, the judiciary and the public feel strongly about them. However, ultimately we have to try to make a judgment as to whether the courts should decide what evidence it is proper to bring out in the interests of justice rather than bowing to the clamour of those who have misunderstood proceedings as they take place at the moment. Clearly, complainants should be defended. But defendants have the right to have their interests override those of complainants as it is their freedom and they who are on trial". —[Official Report, 8/2/99; col. 57.]
That very much reflected the views of the Lord Chief Justice on Second Reading at col. 1270. The observation of the noble Lord, Lord Cope, for which I have considerable respect, was misquoted twice in a rather important way by the noble Lord, Lord Williams of Mostyn. Again, on the third day in Committee he said this:
"I emphasise 'subject to the parliamentary structure'—which is incorporated in the Bill. Indeed, we return to the point of principle of the noble Lord, Lord Cope, of whether it is to be left to a discretion which many believe has been inappropriately exercised". —(col. 60.)
And at col. 62 he said:
"I hope that I have dealt with the main themes here. I do not apologise for repeating the fact that I think the noble Lord, Lord Cope, identified the position correctly. Is this to be a matter for the courts' discretion or for parliamentary structure?".
In referring to the judge's discretion, that was quite incorrect, as I shall indicate when referring to the judgment of my noble and learned friend, the former Chief Justice, Lord Lane, who is happily sitting on my right.
I suppose in some respects one must not be too censorious about that error because it was somewhat supported by the observations of the noble Lord, Lord Lester of Hemet Hill. At col. 47 he said:
"Pace the noble and learned Lord, Lord Ackner—with great respect and friendship—Clause 40 does not remove judicial discretion. It builds on Section 2. Its provisions seek to structure, guide and narrow the discretion exercised by a judge in deciding when a victim may be questioned about her sexual behaviour".
Comment was made when that was before your Lordships about the absence of guidance, so it was said, which was given in relation to the clause in the Sexual Offences (Amendment) Act 1976, which imposes restrictions on evidence at trials for rape. Section 2(1) provides quite simply as follows:
"If at a trial any person is for the time being being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant".
Subsection (2) provides the guidance:
"The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair"—
I stress those words—
"to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
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The matter came before the Court of Appeal, Criminal Division, in 1982 in the case of Viola. I need not bother your Lordships with the special facts of that case, but I go straight to the judgment of my noble and learned friend the Lord Chief Justice. This clear guidance was given on the point on which I sought to criticise the Minister, at page 128:
"It is, we think, apparent from those words—
from Section 2 that I quoted—
"without more, that the first question which the judge must ask himself is this: Are the questions proposed to be put relevant according to the normal common law rules of evidence and relevant to the case as it is being put?…The second matter that the judge must consider is this. If the questions are relevant, then whether they should be allowed or not will of course depend upon the terms of section 2, which limits admissibility of relevant evidence".
Then the noble and learned Lord refers to the case of Lawrence, in which Lord Justice May said:
"The important part of the statute which I think needs construction are the words 'if and only if he [the judge] is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked', and, in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions to be asked in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury properly directed in the summing up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed".
Then the Lord Chief Justice refers to a case in the Court of Appeal Criminal Division—Mills (Leroy) (1979). The decision was given by Lord Justice Roskill as he then was, and his Lordship said this:
"This section has not as yet. as far as this Court is aware, been considered by this Court…we pointed out to Mr. Hunt in the course of argument, [that this is] essentially a matter for the exercise of discretion by the trial judge within the framework of the Act, bearing in mind that statutory provision is designed to secure protection for complainants. The learned judge here exercised his discretion after having had that decision of May J. quoted to him. Mr Hunt found himself unable to say that this was not a matter for the exercise of the learned judge's discretion, but argued that this Court should substitute its own discretion for that of the learned judge…With respect, it would be entirely wrong for us to do so".
There, the suggestion that it was at the discretion of the judge to decide, once satisfied that the evidence or questions were relevant, to allow or disallow them was fairly stated. However, the Lord Chief Justice, giving the judgment of the court in Viola, continued:
"We would further like to say this about the judgment in MILLS, and say it with the greatest possible deference to that Court. It has been agreed on all hands, not only by the appellant and by the Crown but also by Mr. Green who has assisted us as amicus curiae, that it is wrong to speak of a judge's 'discretion' in this context. The judge has to make a judgment as to whether he is satisfied or not in the terms of section 2. But once having reached his judgment on the particular facts, he has no discretion. If he comes to the conclusion that he is satisfied it would be unfair to exclude the evidence, then the evidence has to be admitted and the questions have to be allowed".
He continued:
"Having said that, when one considers the purposes that lay behind the passing of this Act as expounded by Roskill L. J., it is clear that it was aimed primarily at protecting claimants from cross-examination as to credit, from questions which went merely to credit and no more".

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This is the part that I want to stress:
"if the proposed questions merely seek to establish that the complainant has had sexual experience with other men to whom she was not married, so as to suggest for that reason she ought not to be believed under oath, the judge will exclude the evidence. In the present climate of opinion the jury is unlikely to be influenced by such considerations, nor should it be influenced. In other words questions of this sort going simply to credit will seldom be allowed. That is borne out by the cases to which we have been referred…On the other hand, if the questions are relevant to the issue in a trial in light of the way that the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a relevant question on an issue in the trial as the trial is being run will usually mean that a jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant".
Almost finally, the Lord Chief Justice said:
"Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case…The second matter is, is this Court entitled to differ from the conclusions of the learned judge? As already pointed out, this is the exercise of judgment by the judge, not an exercise of his discretion. This Court is in many respects in as good a position as the judge to reach a conclusion".
And it did, and it departed from the view mentioned below.
The only other reference that I want to make is to the later case of Brown, in which their Lordships followed Viola and concluded their judgment this way:
"The question was whether, on the facts of a particular case, the complainant's attitude to sexual relations could be material upon which a jury could reasonably rely to conclude that the complainant might indeed have consented to sexual intercourse on the material occasion, despite her evidence to the contrary".
I stress the next words:
"It was a question of degree in every case".
Then, the final paragraph of the judgment concludes that,
"although we have not found it easy to reach a decision on this appeal, in the end we do not think that the 'evidence of sexual promiscuity' of the complainant was 'so strong or so closely contemporaneous in time to the event in issue as to … reach the border between mere credit and an issue in the case'".
Your Lordships will have seen that there are two factors relative to the evidence of promiscuity which can make the questions admissible: the evidence must be so strong, or so closely contemporaneous.
In Clause 40, which seeks to replace the statute to which I have made detailed reference, there is no provision for allowing in evidence of past promiscuity because of its strength. It is only allowed in if there is closely contemporaneous evidence. In so far as it is unfair to refuse to allow questions in regard to previous sexual activity where that evidence is particularly strong, I should explain that the defendant is then obliged to subject himself to a situation which is unfair—the very words of the 1975 statute. It is unfair because of the strength of that evidence; it is not a question of discretion. Once you find that it is unfair as matters stand at present, the questions must be allowed.
However, there is no provision for that in Clause 40 as now drafted. For that reason, I suggest that it cannot possibly, with fairness, take the place of the 1925 statute. I beg to move.
3.30 p.m.
Baroness Mallalieu: My Lords, I should like to speak to Amendment No. 58, which has been grouped with the amendments of the noble and learned Lord. To stop a judge who is presiding over a trial of a man accused of rape from allowing questions to be asked or evidence to be given which he, the trial judge, considers to be relevant, potentially probative and necessary in the interest of justice to ensure a fair trail of the accused, is, in the moderate language of the noble and learned Lord the Lord Chief Justice (speaking on the amendment in Committee in this House on 8th February),
"not a recipe for the good administration of justice". —[Official Report, 8/2/99; col. 55.]
In my less measured language, this is total lunacy; indeed, this is the very stuff of which false convictions are made.
In relation to Clause 40 we are, I believe, in the very greatest danger of passing legislation through this House to deal with a situation which in fact no long exists, because the pendulum has already swung to correct an imbalance that certainly used to exist. I do not believe that I am being complacent. The days of insensitive judicial comment and the permitting of unjustified cross-examination, which was irrelevant, insulting and gratuitously intrusive, are, in my personal experience, ones which relate to a bygone age. Things have moved on a great deal.
The noble and learned Lord referred to the case of Viola, which set the framework of restrictions for a judge, and what he could permit to be asked, as long ago as 1982. But a great deal has happened in the courts, and elsewhere, since then. Today, only judges who have been specially chosen, nominated to try cases of this nature, are permitted to do so. Public attitudes have undergone a mammoth change, too. Rape is now rightly seen as a serious offence of violence and not a joke. Those convicted of rape now face long sentences and a lifetime on the sex offenders' register.
In my experience, judges are acutely aware of the need to protect the complainant as he gives her evidence. No judge trying such a case today can be unaware of the personal consequences for him or her of a tactless or inappropriate observation from the Bench or a failure to protect the witness from oppressive and unnecessary questioning. A media field day would result and the telephone from the Lord Chancellor's Department would be incandescent.
However, it is not just judges who have changed; indeed, juries have also changed. When the charge is read out at the start of a trial and jurors hear that the defendant is accused of rape, the looks that are directed at the dock before any evidence is heard are the most eloquent testimony as to how far public attitudes have shifted. An alleged sex offender starts his trial before a word of evidence is given with the presumption of guilt to overcome.

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When the Minister replies, he need not repeat his speeches given earlier in the course of the proceedings on the Bill on the horrors of rape, the right of a woman to say no at any time, or the importance of getting women to come forward and complain. Those arguments have been universally accepted for a long time and we are all agreed about them. Despite that fact, and in some ways because of it, the acquittal rates in rape cases are high. There are many theories about the reasons for that. I suspect that some cases which should have been dropped well before trial because the evidence is not sufficiently strong to sustain a conviction are, nonetheless, pursued because the prosecuting authorities fear criticism if they do not allow them to run—a criticism that they have not sufficiently backed the victims.
Serious rape cases are too often prosecuted today by very junior counsel instructed by the Crown Prosecution Service. The knowledge of jurors that a rape conviction, whatever its nature and circumstances, must result in a long prison sentence, may make them unwilling to stigmatise as rape episodes, especially those between parties who know one another, which, although they are technically rapes in law, seem to jurors more akin to incidents of bad manners, drunken misconduct or youthful misjudgment. It should not be forgotten that a significant proportion of false allegations are also made. Cases of this type usually mean that the evidence consists of one person's word against that of another, with no witnesses. The decision as to who is telling the truth in these cases is often almost impossible to make. However, Clause 40 proposes that jurors should in future be given less information, not more, to enable them to reach that decision. It is proposed—and we should not forget this—to keep from them even more of the background to the case which may enable them to reach the right decision than they are now allowed to hear.
In Committee, I put to the noble Lord, Lord Williams of Mostyn, a hypothetical illustration of a case where, under his proposals, no evidence would be allowed and no questioning permitted about matters which I ventured to suggest most right thinking people would consider necessary to reach the right verdict. In the amendments which follow in the next group, I am grateful that the noble Lord has responded positively in that respect. The Ministers's amendment, Amendment No. 57, has been framed to permit questioning about other incidents which are so similar that they cannot reasonably be explained as coincidence.
I say I am grateful to him for those changes which I anticipate he is about to propose. But I find the following difficulty. In accepting, as he has, that the clause as drafted, in some circumstances which had not been foreseen when this Bill first came before the House, would prevent questioning and evidence which is necessary to ensure a fair trial, he makes the argument for Amendment No. 58, which I propose, with great eloquence himself. Neither those who drafted this Bill originally, nor noble Lords, nor those in the other place who will examine this Bill later, can possibly anticipate
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every factual situation which may arise, in particular because human behaviour is infinite in its variety. We cannot anticipate every eventuality.
The trial judge must retain a degree of discretion over each aspect of the evidence to ensure a fair trial when the unforeseen arises. Clause 40, even as the noble Lord proposes to amend it, makes—I am sorry to say this— a dog's dinner of the law in this area. It creates complications and uncertainty for prosecution, defence and for the judges. We should surely be trying to make new legislation both simple and certain, and Clause 40 does neither. If the Minister is still insisting on Clause 40 in some form, will he at least indicate that he will look at Amendment No. 58 and, if necessary, take it away and return with a provision, strengthened, if he likes, with the words, "in exceptional circumstances", which the Court of Appeal has just conveniently defined in relation to other legislation? But I ask him not to let this House, however well intentioned, pass legislation which may well raise the conviction rates in these cases, but do so by adding people who are not in fact guilty to the prison population.
Lord Campbell of Alloway: My Lords, I support the noble Baroness in her Amendment No. 58 for all the reasons which she has given and, if I may be allowed to do so without presumption, congratulate her on the way in which she put forward her case. As regards the amendments to Clause 40 of the noble and learned Lord, Lord Ackner, I support them for the way in which they were presented. As the noble and learned Lord said, contemporaneity is no substitute for strength of evidence. That carries forward into the reasoning of Amendment No. 58 in the name of the noble Baroness. It is absolutely crucial that there should be sufficient information and the right information to enable the jury to make the right decision. I accept, if I may, the noble Baroness's criticism that she so cogently presented of Amendment No. 57. That was well conceived and I hope that the noble Lord, Lord Williams of Mostyn, can take it into account in the spirit in which it was tendered.
3.45 p.m.
Lord Thomas of Gresford: My Lords, my Amendments Nos. 59 to 61, which are grouped with the one we are discussing, are designed to throw out the whole of the suggested machinery in Clause 40 and subsequent clauses, as put forward by the Government. The issue is quite clear: should the judge in court have a discretion to admit cross-examination of a complainant on her sexual history in every conceivable and possible circumstance, and in every eventuality—as the noble Baroness Lady Mallalieu, put it; that is the purport of her amendment—that may arise in any particular case? Or, on the other hand, should there be a statutory strait-jacket, as I would call it—the noble Lord, Lord Williams, referred to it as a parliamentary structure—which guides and constrains the judge in the exercise of his decision whether or not to permit such cross-examination?
The noble and learned Lord, Lord Ackner, has already quoted Section 2 of the Sexual Offences (Amendment) Act 1976 and set out the test that a judge applies

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currently. He will permit such cross-examination of the sexual history of a complainant only if he is satisfied that it would be unfair to the defendant to refuse to allow the evidence to be adduced or the question to be asked. Miss Aileen McColgan in Volume 16 of the Oxford Journal of Legal Studies has helpfully analysed the most frequent categories in which previous sexual history is now admitted. I have only to refer to those categories for your Lordships to realise the nature of the circumstances which can arise in different cases. For example, sexual history may be admitted to rebut good sexual history called by the Crown if the prosecution suggests that the complainant is a woman of little or no previous sexual experience. In such circumstances the defendant may be permitted to adduce evidence to rebut that. Secondly, it may be admitted to show that the complainant has behaved in earlier sexual encounters in a way very similar to the facts of the current allegation, and that she has made previous false allegations of a similar nature. Thirdly, it may be admitted to show bias or malice borne out of previous sexual conduct on her behalf. Fourthly, it may be admitted to attribute physical evidence to another man, such as the presence of disease or presence of semen which may explain those particular pieces of evidence. Finally, it may be admitted to give support to the defendant's belief that she was consenting. I referred to that when I spoke on this amendment in Committee.
The report, Speaking Up for Justice, of June 1998, on which this Bill is based, stated that there is evidence that the practice of the courts in interpreting Section 2 is widely variable. The odd thing is that we have never heard precisely what that evidence is. It is contrary to the experience of practitioners such as the noble Baroness, Lady Mallalieu, myself, and judges who have addressed your Lordships in relation to this Bill, that there is a widely variable practice. It is difficult to obtain leave, if one is defending in a rape case, for the sexual history of the complainant to be subject to cross-examination.
It was suggested in Speaking Up for Justice that Scottish or New South Wales models should be followed. Indeed the noble Lord, Lord Williams of Mostyn, in speaking in reply to this amendment in Committee, also said that regard had been had to Canadian, New South Wales and Scottish models. The fact of the matter is that experience in those jurisdictions has not been satisfactory because the legislative frameworks that have been imposed have not been successful. In Scotland the rules to restrict sexual history were enacted in 1986 and were consolidated in Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. That prevents evidence being called except to rebut prosecution evidence of good sexual character, or for sex on the same occasion as the charge, or anything it would be contrary to the interests of justice to exclude. That discretion was left in Scotland and the Scottish Office report, Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials stated that the statutory framework that had been enacted made little difference to the admission of such
20
evidence. Indeed in Scotland 85 per cent, of applications for the admission of such evidence have been successful.
In New South Wales in 1981 a rape shield provision was added to the Crimes Act by Section 409B, and statutory exceptions of a similar nature were added, but there was no general discretion left to the judge at trial. It is true that the conviction rate went up and that only 29 per cent. of claimants were cross-examined under these provisions. However, as has been pointed out by Miss Vera Baird in a pamphlet that she has produced entitled, Rape in Court—I am extremely grateful for her research in this matter:
"there is mounting criticism that the provision leaves no discretion at all to a trial judge to enable him to admit evidence outside the specified categories in a case in which it might be fair to do so … no legislature has the prescience to foresee every eventuality".
That is the exact point made by the noble Baroness, Lady Mallalieu, a few moments ago. The leaflet continues:
"The Standing Committee of the state Attorney General drafted a model penal code which was published with explanatory notes in November 1996. They now propose"—
this is New South Wales—
"to reintroduce a judicial discretion which will allow the introduction of evidence eiusdem generis with the statutory categories if otherwise there would not be a fair trial".
The statutory strait-jacket has been attempted in New South Wales but has failed. A general discretion to meet all eventualities will now be introduced.
My noble friend Lord Lester of Herne Hill referred to Canada in Committee. Canada introduced a rape-shield provision in 1985 which permitted no residual discretion outside the fixed categories set out in that legislation. In the case of Seaboyer, that was held to violate Section 7 of the Canadian Charter of Rights and Freedoms and it was struck down as being inconsistent with that part of the Canadian Charter. In his judgment, Mr. Justice McLachlin quoted Professor Vivian Berger's article, Man's Trial, Woman's tribulation, and said:
"The problem is to chart a course between inflexible legislative rules and wholly untrammelled judicial discretion: The former threatens the rights of defendants; the latter may ignore the needs of complainants".
So in Canada, this statutory strait-jacket having been struck down as inconsistent with the Canadian Charter, fresh legislation was introduced which not only followed the principles set out by Mr. Justice McLachlin in that case, where he offered a model of such legislation, but also introduced a new procedure whereby if there is such an application for cross-examination as to sexual history there follows a private hearing—which the complainant is not required to attend if she does not wish to do so—and the whole matter is then examined in private. The judge gives a reasoned decision as to why that history should be admitted, if he so decides, and then the matter is heard further in public.
It may be that something along those lines would be a way forward, but the way in which this clause is now drafted does not admit of a general judicial discretion. Rather like the evangelist who starts by persuading you that you are mired in sin, it is no good the Government

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attacking judges in order to justify introducing a strait-jacket of this kind. That only undermines public confidence in the judiciary and does nothing practical to assist in the resolution of the problem. And it is a difficult problem which faces the courts.
For those reasons, I fully support the amendment of the noble and learned Lord, Lord Ackner, the amendment of the noble Baroness, Lady Mallalieu, and my own amendments.
Viscount Bledisloe: My Lords, it seems to me that if Clause 40 is to survive at all, the case for either the amendment of the noble and learned Lord, Lord Ackner, or the noble Baroness, Lady Mallalieu, is over-whelming. I can give my reasons for saying that very simply and without, your Lordships will be pleased to hear, any citation from cases.
Subsection (2) of Clause 40 provides that evidence or cross-examination of this kind can be allowed only where the court is satisfied of two things—and it has to be satisfied of both of them. One is that to refuse to allow such evidence might have the result of rendering unsafe the conclusion of the jury or the court. So the first gateway is, "If I exclude this evidence, may it render a decision against the defendant unsafe?" On top of that, there is then a second requirement; namely, that one fulfils the requirements of subsection (3)—or subsection (3) as sought to be amended by the noble Lord, Lord Williams of Mostyn—or subsection (5).
There are two gateways. Where there are two gateways, by definition one may get through the first but not the second. So one could have a situation where the judge says to the defendant, "Yes, I am quite satisfied that unless you are allowed to adduce this evidence or to ask these questions there is a risk that if you are convicted that conclusion may be unsafe. But, I am sorry, you do not get through one of the other gateways and therefore you cannot ask the questions or give the evidence. "There the judge is faced with saying to the defendant, "You need to ask these questions to have a safe and fair trial but I am not allowed to let you ask them." What does a judge do in such circumstances? Does he allow the case to go on, having told the defendant that the way it is being conducted will probably render his conviction unsafe? Or does he say, "I am not allowed to let these questions be asked, but unless these questions are asked there cannot be a fair trial, and therefore the trial must stop"?
An Act of Parliament which states that one may not ask questions even though the judge has decided that unless one asks these questions there cannot be a fair trial is the most amazing legislative concept I have ever heard.
4 p.m.
Lord Lester of Herne Hill: My Lords, I think I am the first person to say anything in favour of Clause 40 and against this group of amendments. I am conscious that I spoke in Committee and I shall try not to repeat what I said. It would be unfortunate if there were to be a polarisation of attitudes between, on the one hand, judges, with great experience of the criminal trial
22
process and rape cases, and criminal law advocates, and the Government and their lay supporters, including many women and men, on the other. I do not believe that there needs to be that degree of polarisation.
In many ways the Government have not done themselves a great favour in the way in which they have described, or failed to describe, the background to what is now Clause 40. As I understand the position—the Minister will, I hope, correct me if I am wrong—the Government have modelled Clause 40 on precisely the Canadian compromise referred to by my noble friend Lord Thomas of Gresford. As my noble friend indicated, in Canada a very rigid and extreme rape-shield law was introduced which totally fettered the court's power to strike a fair balance between the rights of the complainant and the rights of the accused and to ensure a fair trial. That law was struck down by the Supreme Court of Canada as being unduly rigid and depriving the accused of the right to a fair trial. Very sensibly, all the political parties in Canada then got together with judges from the Supreme Court and over several years fashioned a fair compromise respecting the dignity, privacy and equality of treatment rights of complainants, and the paramount right of the accused to a fair trial.
That is what Clause 40 does. Leaving aside the question about a private procedure to deal with this category of sexual offence in a different kind of way, Clause 40 seeks to limit the discretion, or judgment, or both, of the courts in admitting evidence of the complainant's previous sexual history as evidence of consent in most cases. It seems to me that in most cases evidence of previous sexual promiscuity is irrelevant, or should be irrelevant, and is inadmissible or should be inadmissible in relation to the issue of consent as distinct from honest belief in consent.
I know that that view is not taken by everyone. Having listened to the noble and learned Lord, Lord Ackner, and to my noble friend Lord Thomas of Gresford, I do not think that they agree with my remarks. I think they believe there is a wider category of cases in which evidence of the complainant's previous sexual history is relevant, ought to be able to be admitted, and is not greatly prejudicial to the dignity and other rights of the complainant. So there is a disagreement in principle. With respect, it does not do to cite existing case-law on that subject if the disagreement is within the attitudes displayed in that case-law on the one hand and what the Government seek to do in Clause 40 on the other, which is indeed to change the unsatisfactory status quo.
If I thought that the way in which the Government were going about the matter was the old Canadian or New South Wales way, I should join my noble and learned friend and others on all sides of the House in opposing the amendment. However, I believe that Clause 40 is clear and structured and strikes a fair balance. At any rate, it does so if your Lordships accept Government Amendments Nos. 56 and 57, which we shall debate shortly, since Amendment No. 56 would remove the somewhat arbitrary reference to the 24-hour limit. I greatly welcome the fact that the Government are now more flexible. The amendment seeks to reach a compromise following the "Romeo and Juliet" example

23
given last time by the noble Baroness, Lady Mallalieu. Like the noble Baroness, I greatly welcome what the Government are doing in that regard.
As I said previously, I do not support a continuation of the present unsatisfactory status quo. As a matter of principle and practice, I believe that women have been subject for too long in some cases to a whole slew of irrelevant and inappropriate questions posed by the defence about their past sexual practices, past sexual partners and past medical history. I gave some examples in Committee where senior practitioners of great experience had made clear that, in their determination to do what they could for the accused, they would seek to damnify the character of the complainant, and often succeeded in doing so. Admittedly, those examples were based on a limited but important sample of practitioners who had been interviewed by a professor.
Such questions play on prejudices and myths about what is good and bad behaviour for women. To allow such questions in evidence disregards a woman's right to a fair trial, her right to privacy and dignity and her right to personal autonomy in making her own decisions about her sexual activities. That is a very high price to pay to defend the rights of the accused. I do not believe that it is a necessary price, as the recent Canadian reforms indicate. To ensure the fairness of a trial, we are right to prohibit evidence of an accused's past convictions from going before a jury. That is only fair since such evidence would be highly prejudicial. But surely the same logic should apply to the admission of sexual history evidence. In most rape cases, sexual history evidence has little probative value, and certainly not enough to overcome its highly prejudicial effect upon the alleged victim's rights. For those reasons, I support the Government's plan to introduce statutory guidelines placing the court's discretion within narrower limits. I do not go so far as to support the position taken by Women Against Rape. I do not support an absolute bar on the admissibility of sexual history evidence. I accept that in limited cases sexual history evidence can be relevant. Its admission should not, however, be the exception rather than the rule; hence the need for statutory guidelines.
During previous debates on this Bill we have heard much about consent. But consent to engage in sexual relations in the past does not give a blank cheque for consent to engage in sexual relations in the future. If that were so, the noble and learned Lord, Lord Lane, when Lord Chief Justice, would never have recognised that rape can occur within a marriage. That was a great landmark decision.
Consent, by its very nature, is to a person, not to a circumstance. As the Heilbron Committee pointed out as long ago as 1975, evidence of a woman's sexual experiences with partners of her own choice is not indicative of a general willingness to consent.
For those reasons, and for the reasons given by the Supreme Court of Canada only a couple of weeks ago—in a landmark decision in Regina v. Ewanchuk, the Supreme Court pointed out in what has become known as the "no means no" case that the honesty of a belief cannot be seen in a vacuum in cases of this kind—an
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honest but mistaken belief in consent must be genuine. A man cannot wilfully or recklessly disregard anything that was said or done which would lead an ordinary person to believe that a woman was giving her consent to engage in sexual relations. The obvious example is if the woman says no. How can a man have an honest but mistaken belief in consent if the woman says no? Nor can there be consent if a woman's actions show that she is being forced to give her consent, or that she fears for her safety or is being pressured to do something that she does not want to do.
Past sexual history may be a factor, but it is one of many, and its admission should be weighed against any indication that such evidence is being sought to impugn the woman's credibility or to jeopardise the fairness of the trial to all concerned. These are, rightly, hurdles which Clause 40 seeks to establish as part of our law. For those reasons, I oppose the amendments and support Clause 40 as it stands.
Lord Ackner: My Lords, before the noble Lord sits down, I wonder whether he will tell me whether he disagrees with two propositions, both of which were mentioned in Committee. The first is from Viola. I quote:
"as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case".
Is that accepted by the noble Lord as a perfectly valid proposition? If not, perhaps he will tell the House why.
Lord Lester of Herne Hill: My Lords, of course I accept that proposition, as do the Government in their approach in Clause 40. That is why they would limit evidence of previous sexual history, initially within the 24-hour rule, and now replaced by something less rigid but still placing the evidence within very direct contact with the issue in the case.
Lord Hacking: My Lords, although I have had a keen interest in criminal justice since I first joined your Lordships' House over 25 years ago, I have hitherto not had the opportunity, alas, to take part in the debates on the Bill. That is because I have not had the time to give it the attention that it rightly deserves. I therefore did not intend to participate in the debate on Clause 40 until it had commenced and I had heard the argument.
I support the Government in the introduction of Clause 40 into the Bill. There have been a number of cases, particularly when the accused has represented himself, in which a complainant has been harassed, humiliated and embarrassed to a quite unacceptable degree in rape trials. It is possible that on those occasions the trial judge did not exercise the type of judicial decision making that he should and that he did not sufficiently restrain the questions. Nevertheless, those events have taken place. Therefore, I believe that the Government are entirely right and I support my noble friend on the introduction of Clause 40 into the Bill.

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However, thereafter it is important to ascertain whether there is sufficient judicial discretion. I entirely agree with the noble Lord, Lord Thomas of Gresford. I believe he said that the Bill as drafted, even with Amendments Nos. 56 and 57 tabled my noble friend Lord Williams, still did not admit a general judicial discretion. The point was also made by the noble Viscount, Lord Bledisloe.
The Minister will remember the debates on the Crime (Sentences) Bill. We joined together as strongly as we could in opposing the measures of mandatory sentencing in that Bill, precisely because it did not give enough judicial discretion. My noble friend will remember that we were victorious. Voting against the government of the day, we managed to have inserted into the Bill sufficient judicial discretion over mandatory sentencing.
Therefore, we must consider the amendments introduced by my noble friend, with the encouragement of my noble friend Lady Mallalieu, in Amendments Nos. 56 and 57. Amendment No. 57 puts the introduction of the evidence into a tight compass. It must be
"so similar to any sexual behaviour of the complainant"
—that is the first restraint—
"took place at or about the same time"
—that is the second restraint; and it must be of such similarity that it,
"cannot reasonably be explained as a coincidence".
My noble friend practised much in the English courts when he was a member of the Bar, both as a junior and as a Queen's Counsel. He is wholly familiar with the criminal trial and with cases involving sexual allegations. I ask him therefore to consider how he would make a successful submission on behalf of a client who wished to use the extension of discretion that is set out or who wished to ask the court to use the discretion set out in Amendment No. 57. If my noble friend applies his mind to the conduct of the trial, he will see the difficulties that he will face in advancing the argument that evidence may be introduced in order to ensure a fair trial.
I hope that I shall be forgiven for not participating earlier in debates on the Bill. For that reason, I ask my noble friend to have another look at Amendment No. 57, together with Amendment No. 58 proposed by my noble friend Lady Mallalieu and to adopt the latter. It seems to me that Amendment No. 58 gives sufficient judicial discretion. That is what we seek: a fair trial with a judge who has sufficient room to make a fair and right decision on whether to admit evidence.
4.15 p.m.
Baroness Lockwood: My Lords, the debate so far has concentrated on the views of judges and lawyers. I believe that I am the first non-lawyer to take part in the discussion. I do not wish to consider the issue from the point of view of whether judges have sufficient discretion to enable them to carry through a fair trial. I wish to consider it from the point of view of women. It is women who are most likely to be the victims of rape.
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There is no way in which a woman who has suffered from rape can be compensated. She can get nothing out of the trial of the defendant. She has been raped and no matter what happens, that experience remains with her and will remain with her for the rest of her life. My noble friend Lady Mallalieu said that there was no need for the Minister to talk any more about the abhorrence we all have of rape and the suffering which some women have experienced in the past when they have reported it and have taken a case through to prosecution. We all know that that should not now happen. Therefore, the woman is not likely to be subjected to that distress. My noble friend said that we were all agreed about it.
However, there is still much apprehension and disagreement, even about the Bill as at present drafted. Some 200 women's organisations have made representations to the Home Secretary about the Bill because it did not go far enough from their point of view. They wanted a woman's previous sexual experience to be completely excluded from the Bill. So there are two sides to the argument.
Certainly, women who have been victims of rape do not want to be put on trial or perceived to be put on trial for having been a victim and to have their past sexual experience taken into account. It is not only a question of whether it is good administration of the law, as the noble and learned Lord the Lord Chief Justice said earlier; it is also a question of whether it is perceived to be a good law. If women do not perceive it to be a good law and if they feel that it does not give them sufficient protection, they will not use it. No matter how we might argue about legal niceties in this House, women will not press their case so that it can be brought to trial.
I believe that we must be careful about the argument of a judge's discretion. We must also consider it from the point of view of the woman who is or has been a victim of such a crime. We want a law that will protect women against rapists. That is the whole purpose of the law: to provide protection against such crimes. I suggest that the import of the amendments to be moved by my noble friend—whether or not noble Lords agree that he has the wording just right—is as far as we can go if we are to provide justice for both women and the very few people who are brought before the court as a result of unfounded allegations of rape being made against them.
Lord Goodhart: My Lords, this is the first occasion on which I have spoken in the debates on this Bill. I do so now with some reluctance because I have not been able to attend as many of the previous debates as I would have wished. Part II of the Bill has given rise to very important divisions of opinion on both the Government Benches and these Benches. That was obvious in the debate at Committee stage on the cross-examination of complainants by the accused in rape cases. Had I then been present I would have been in complete agreement with what was said by my noble friends Lord Lester of Herne Hill and Lord Russell.
As to the issues covered by these amendments, there has been a similar division of opinion. I agree that the evidence of the previous sexual history of a complainant

27
should not be admitted unless it is relevant. I also agree that evidence that a complainant has had sex with other men, even promiscuous sex, is not in itself relevant.
I also agree, however, that evidence which can reasonably be regarded as relevant to the defence must be admitted even if it involves the complainant's sexual conduct with other people. Any defendant must be entitled to rely on all relevant evidence that may help his case if miscarriages of justice are not to occur. That is particularly true in a rape case, because a wrongful conviction for such an offence will have consequences that are even more devastating than wrongful convictions for other types of crime. The noble Baroness, Lady Lockwood, has just said—I am in entire agreement with her—that nothing in a trial can provide adequate compensation for a complainant who has been raped. But equally, although in an entirely different way, I believe that there can be no adequate compensation for anybody who has served a sentence of imprisonment as a result of a wrongful conviction for rape. I am therefore unwilling to support Clause 40 in its present form.
There is, however, one matter that concerns me: the one-sided nature of leave to consider evidence of the sexual history of the complainant under the present law. Frankly, it appears to me to be only fair that if leave is given to cross-examine a complainant on her sexual history the defendant's own sexual history should become open to investigation if that is relevant. There is a long-standing principle that if a defendant attacks the character of a prosecution witness his own previous record becomes admissible.
It was also held in Hudson's case in, I believe, 1943 that to raise a defence of consent was not ipso facto an attack on the character of the complainant. I accept that as a correct decision and I do not seek in any way to change that rule. But I find it unacceptable that a defendant should be barred from raising the sexual history of the complainant if it is relevant. I find it equally unacceptable and unfair that a defendant with a long history of sex offences can go into the history of the complainant's sexual relationships with other men without having to disclose his own record to the jury. Fairness demands that leave to investigate the previous sexual history of the complainant with other people should make it possible to open up the previous sexual history of the defendant where that can be regarded as relevant. I believe that that would discourage applications for leave to go into the sexual history of the complainant unless the results of that investigation were thought likely to be persuasive.
I hope, therefore, that the Government will accept the amendment in the name of the noble Baroness, Lady Mallalieu. If not, I shall support that amendment or the amendment in the name of the noble and learned Lord, Lord Ackner, if that is moved. But I also hope that the Government will consider amending the Bill to allow the issue of a defendant's sexual history to be raised where leave has been given to raise the issue of the complainant's sexual history.
Lord Hacking: My Lords, before the noble Lord sits down perhaps I may put a question so that I understand
28
what has been said. Is the present position under the Bill that there is no right to expose the sexual history of a defendant if he asks questions of the complainant?
Lord Goodhart: My Lords, as I understand it that is the position.
Lord Cope of Berkeley: My Lords, although I speak from the Dispatch Box on these Benches this is not a matter of party policy, any more than it is on the Liberal Democrat Benches, as has been demonstrated in the past few minutes. In what I say I express my own views on the matter.
Although it is a little premature, I welcome Amendments Nos. 56 and 57 which the Government intend to move a little later to introduce the proximity in time and similarity rules in substitution for the 24-hour provision. I was one of those who criticised the 24-hour provision in the debates at Committee stage. I am not satisfied that the new formulations will end all argument on the matter. We have heard enough in the past hour to understand that.
The noble and learned Lord, Lord Ackner, quoted my words in the earlier debate and said that in paraphrasing what I had said the Minister had misrepresented me. On 8th February I said:
"The underlying question before us is whether we, in Parliament, can, in framing legislation of this sort, judge better what is in the interests of justice than can the court at the time".—[Official Report, 8/2/99; col. 56.]
That is a different quotation from the one read out by the noble and learned Lord, Lord Ackner, but it makes the same point.
I do not think that it was therefore unfair for the Minister (paraphrasing my words) to state the point of principle as being whether it was to be left to a discretion or was to be the subject of a parliamentary structure. But he inserted after "left to a discretion" the words "which many believe to have been inappropriately exercised". I believe that that was intended to be the opinion of the Minister rather than a quotation from me. Certainly, I did not express that view and did not wish to make that claim. Provided that the noble Lord was, by that phrase in the middle, expressing his own view—he nods to indicate that he was—I have no objection to what he said.
The question that has bothered many noble Lords who have considered this matter over the past few weeks— indeed, years—and has figured in this debate is what is and what is not relevant. The Minister said very firmly in earlier debates that sexual history was not relevant to consent. However, a letter that has attracted some recent publicity written on behalf of the Women's Unit, which I understand the noble Baroness the Leader of the House chairs, appears to take a different view, judging from the press. It suggests that sexual history could be relevant to belief in consent. I am very grateful to the noble Lord the Minister for having sent me a copy of that letter and also a long explanation of what the Women's Unit intended to say. I believe that he has sent copies to those other noble Lords who spoke in the debate in Committee and also placed a copy in the Library of the House. Therefore I shall not dwell upon it.

29
However, it makes an important difference as to whether we are talking about what is relevant to the consent of the complainant at the time or what is relevant to the accused's belief in her consent at that time. I believe, with the Minister and the noble Lord, Lord Lester, that a woman's consent is hers to give or to withhold on each occasion, regardless of her previous sexual history.
That still leaves the question, which will be an issue in many trials of this kind, as to whether or not she is telling the truth to the court about her state of mind at the time of the offence. I am concerned about the meaning of the word "consent" in Clause 40(3)(a) which says:
"that issue is not an issue of consent".
I believe, from what has been said and from what the Minister said in his letter, that the word "consent" there does not include belief in consent. The noble Lord has been kind enough to nod in confirmation of that. I think it is extremely important that this should be said in the course of our debates, as having come from the Minister, not least in case there should be any issue on this in the future. It is also important for us to understand exactly what the Government are proposing.
I do not think that the new wording will necessarily prove to be entirely satisfactory, as I have mentioned, and it seems to me that the Law Commission was right to suggest a little while ago an amendment to Section 2 of the 1976 Act so as to modify a potential defence against a charge of rape. The key aspect of their proposal—I put it in layman's terms because I am not sure that I would get it entirely correct in legal terms— is that it should not be an offence to say that the accused believed in the victim's consent unless it was reasonable for him to believe it.
It is the opinion of the Criminal Bar Association and others—
4.30 p.m.
Lord Ackner: My Lords, I am sorry to interrupt the noble Lord but could he tell us where the Law Commission has expressed that opinion? I ask because I was in touch with the Law Commissioner who specialises in the criminal side. In, as I recall, the 1995 discussion paper, the Law Commission took the view that the present situation was the correct one. One had to look at the behaviour of the accused subjectively, not objectively, and it was not right to consider putting in the defence that he "reasonably" believed that she was consenting. I may be entirely wrong but I did bother to check it with Mr. Silver, the commissioner dealing with this; and that is what he told me.
Lord Cope of Berkeley: My Lords, I certainly defer to the noble and learned Lord's legal contacts in getting these matters accurate. I am relying on the Criminal Bar Association's response to Speaking Up for Justice, in which they quoted an extract from the consultation paper of 1995 mentioned by the noble and learned Lord. That paper contained a proposal to insert the word "reasonable"; I am paraphrasing. But whether the Law
30
Commission subsequently supports that, is a matter of great importance, on which I cannot authoritatively comment, at least at this point.
However, judging by this more recent document, the Criminal Bar Association apparently believes that such a change would significantly reduce the problem in the operation of Section 2. I am also unwilling to be too dogmatic as to whether the Criminal Bar Association is correct in that view, but it is certainly an authoritative view which is worth drawing to the attention of the House. I mentioned this matter in our earlier debates and the noble Lord the Minister did not comment on it, although he did comment on it in his letter to me, which I mentioned earlier. He said, in short, that this question is being reviewed at the moment to determine whether this is a good idea and whether it would help. It seems to me that it might have been better to wait until that question had been determined before entering into changes in evidence, such as are being put forward in this Bill at this time.
In any case, the real point before us is whether we need to make any new statutory rules about sexual history at all. Most of your Lordships who have spoken in this debate—most from very great experience of the law—are concerned that if we do so in the terms suggested here in the Bill as it is proposed to amendment it, there may be miscarriages of justice in the cases that come to court. I accept that, and none of us wants to see miscarriages of justice in cases that come to court, but I am concerned also about miscarriages of justice as a result of cases not coming to court.
I believe it is true to say that quite a large number of women are deterred—not unreasonably deterred in my view—from pursuing their complaints. That in itself leads to miscarriages of justice. Like the noble Lord, Lord Lester, I do not support all the recommendations of Women Against Rape, but in its paper they make the point that only one in 200 reported rapes results in a conviction. I have no means of establishing whether that figure is entirely accurate, and perhaps it is a great exaggeration, but, even if it is, it still leaves a very worrying position.
This Bill helps in a number of ways. Earlier clauses of the Bill set out provisions to protect vulnerable witnesses through screens, video links and other arrangements which we have already discussed. The part of the Bill that we are discussing today also attempts to help. Although the Bill does not go as far as some would wish, these clauses as well as the earlier ones do help. I think they will mitigate the perceived ordeal of victims when they come to court, and if that leads to more cases being decided by the courts—either way, whether the accused is found guilty or not guilty—to me that would increase the possibility of justice being done in more cases.
It is important that we should do our best to lessen the fears of women in bringing cases, given the imbalance that has been suggested to us. That, in my judgment, is the bigger miscarriage of justice: at the

31
present time. Therefore, I am prepared to support these clauses remaining in the Bill in order to deal with that bigger miscarriage of justice.
Lord Williams of Mostyn: My Lords, normally your Lordships speak of the language of debate as being moderate. Therefore, it is something of a surprise to be accused of operating in total lunacy and, by the noble Lord, Lord Thomas, of having no argument apart from attacking the judges. I believe that no one could accuse me of attacking the judges. The first comment I made at the Despatch Box as a Home Office Minister was that we always hoped to give a decent regard to the opinions of the higher judiciary. I hope that I have demonstrated that. Even though I have not on every occasion agreed with every syllable pronounced, I can say that we always listen with care. If I may have corroboration of my "non-guilt", witness the amendments that I have tabled.
Plainly, this is not an easy area of the law. There has not been unanimity of approach, first, as to the nature of the problem and, secondly, as to the nature of the solution. For instance, the noble Lord, Lord Goodhart, in seeking a more equitable trial of these difficult charges—I believe that I paraphrase him fairly— proposed that if there were an inquiry into a complainant's sexual history there ought also to be a consequential and equivalent inquiry into the defendant's sexual convictions. That is not possible at present. If there is an attack on the credit of the witness, the only cross-examination allowed is under the appropriate subsection of the Criminal Evidence Act 1898. That, if it is properly analysed (which it is not always) relates to whether the defendant, if he gives evidence—and I underline that—is worthy of belief; in other words, whether he has relevant convictions of dishonesty. Sexual convictions are not always convictions in respect of dishonesty, although they could be if sexual intercourse were procured by fraud.
Lord Goodhart: My Lords, I am grateful to the Minister for giving way. I am aware that in order to give such evidence a change in the law would be required. I suggested it was analogy rather than directly applying the law to different circumstances.
4.45 p.m.
Lord Williams of Mostyn: My Lords, I accept that. I referred to the noble Lord's contribution only to underline my point that it is difficult in this area to come to a conclusion of absolute certainty.
I am grateful to the noble Lord, Lord Cope, for supporting the fact that I was indicating that an approach which he had outlined in earlier debates was different from the approach I was coming to. He is right. One cannot say "parentheses", but my comment was plainly in parentheses by way of gloss on his view. He asked particularly for the definition of the phrase "an issue of consent" in Clause 40(3)(a) and (b). I nodded in
32
response to his query. It is clearly set out in Clause 41 (l)(b), which states:
"'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented)".
There, the definition is made plain beyond dispute.
The noble Lord, Lord Thomas of Gresford, commended the Canadian experience, which was further accurately amplified by the noble Lord, Lord Lester of Heme Hill. The noble Lord, Lord Thomas, in particular indicated that in his view Canada got its legislation wrong the first time. The noble Lord, Lord Lester, indicated the same and said that Canada changed it. When I said on an earlier occasion that we had paid attention to the experience of Canada, it was to the fact that there was a challenge on the human rights basis. The ruling by the Canadian Supreme Court led to the new scheme which we believe is not dissimilar to our present one. Indeed, the noble Lord, Lord Thomas, referred to the detail of the Canadian legislation about hearing applications. Our Clause 42 deals with procedure on applications under Clause 40. That scheme, as we think it appropriate to our jurisdiction, is set out in Clause 42.
The amendments are not all the same. If mishap struck and, for instance, the noble and learned Lord, Lord Ackner, succeeded in his amendment, it would not have the same effect as the amendment of the noble Baroness, Lady Mallalieu. Her amendment is quite wide, stating:
"Notwithstanding the other provisions of this section, the court may, on application by or on behalf of any accused",
and then these important words,
"give leave for any evidence to be adduced or [any] question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused".
In that approach, as contrasted with our approach in Clause 40, one comes to the nub of the question properly identified by the noble Lord, Lord Thomas of Gresford. He spoke of guides and constraints. We believe that the guides and constraints in this area of the law ought to be embodied in statute. There is that clear difference of approach between us.
In some circumstances, the question of relevance has been elided. Under Clause 40 as it presently stands, if an issue is relevant the questions can be asked. The clause provides that questions may be asked and evidence adduced only if subsections (3) or (5) apply. Subsection (3) relates to a relevant issue in the case, other than consent, and the 24-hour saver which has been expanded, but I will not develop that theme because it is contained in the next block of amendments. Subsection (5) relates to rebuttal evidence which is to be allowed in appropriate circumstances. Therefore, under those subsections the questions can be asked and the evidence adduced if it relates to the relevant issue.
I believe—and I hope that I am speaking carefully and courteously—that on some occasions some of the heat engendered in the debate misunderstands because of a misreading of the scheme of Clause 40. We are saying, plainly and shortly, that if subsections (3) or (5)

33
apply, the questions may be asked upon an application which is determined by the procedure in Clause 42. If the issue is not relevant, the questions cannot be asked. The question of fairness to the accused, which is the second question, arises only if the evidence in question is relevant. That is a perfectly sensible, prudent way of approaching the conduct of criminal litigation in this country.
We come to a further difference. I assert again—and I am sorry if I am annoying my noble friend Lady Mallalieu—that the fact that a woman has consented to sexual activity on an earlier occasion, with perhaps another man in different circumstances, is not relevant to whether she consented to sexual relations with the defendant on a particular occasion. That is a matter that one either accepts or does not accept. I shall not apologise either to the noble Baroness, who is my friend, or to your Lordships, who are listening so patiently to this long debate. I shall not resile from that proposition.
In certain circumstances, as the noble Lord, Lord Cope of Berkeley, correctly elicited from the letter of my noble friend Lady Jay and from what I have said on a number of occasions, a complainant's previous sexual behaviour can be relevant, but those circumstances are restricted. That is the point of Clause 40. It is not a misunderstanding; it is intended and designed to introduce restrictions and criteria which judges will be obliged to bear in mind. I go back to the phrase of the noble Lord, Lord Thomas of Gresford, "guides and constraints" and I add to it, "included in the statute".
We believe that the outcome of some previous case law was not satisfactory and that we have the right to set down the statutory guides and constraints in this Bill. That will mean the achievement of more consistency of approach and complainants will feel that they have the protection of consistency and certainty. Again, I recognise that some wish to leave it to the discretion—the noble and learned Lord, Lord Ackner, prefers to call it judgment—of the individual judges but we prefer and have reached the policy conclusion that it should be on the face of the Bill.
I flag up the rebuttal of prosecution evidence. It is plainly there. We are not driven by the belief that all complainants are true victims. We do not believe that every complainant is honest and truthful nor that every accused is guilty. We are providing a proper regime. Rebuttal of prosecution evidence has hardly been mentioned in this context but there is provision for it in the Bill.
The Bill seeks to focus on the true issues at trial, not irrelevant fishing nor suggestions that because a woman had sex on one occasion with another person, perhaps, or even the person in question, it is relevant to the issue of consent.
Under the provisions of Clause 40, in this difficult class of case we wish to focus on the true issues at trial and the determination of the facts on the occasion in question. We do not want unjust convictions nor unjust acquittals. Juries should not be allowed to make moral judgments about the complainant's character on the basis of her sexual habits, which, I repeat, are matters of her decision and personal property, and simply acquit the defendant because of it.
34
I repeat that Clause 40 allows the evidence that we have been discussing to be introduced only when it is relevant to an issue. It must relate to specific alleged instances of sexual behaviour, not vague allegations nor fishing expeditions which are looking for something with which to blacken the complainant's character. It must be of such significance that it may affect the jury's determination of the true issue in the case.
I do not believe that information about a complainant's previous sexual behaviour is directly relevant to credibility unless it directly undermines something claimed explicitly at trial. To allow otherwise derives from the basis that if a woman has had previous sexual experience, it suggests that she is untruthful or unreliable as a witness. I dispute that.
The noble Lord, Lord Hacking, referred to experience in criminal trials. We wish to be careful that evidence is not introduced on one apparent basis simply to impugn credibility. Of course a complainant's previous sexual behaviour may be relevant to credibility in some circumstances; for example, if she has made a statement about her sexual past which is not true. That is why we have not adopted the absolute position that in no circumstance may other previous sexual activity be relevant. A history of false complaints or false complaints about sexual behaviour is admissible because it goes to credibility. But it is not evidence about sexual behaviour; it is about untruthful conduct on prior occasions. There is a very clear difference.
We do not believe that a complainant's attitude to sexual relations should be admissible unless it is very closely linked in time to the offence or—and this is the basis of the government amendments—is so unlikely and so similar to the defendant's version that it could not reasonably be considered a coincidence.
It is not fair to say that we have not listened. My noble friend Lady Mallalieu developed her Capulet scenario. I found it a shade unlikely as a prospect; nevertheless, it is reasonably possible and therefore I tabled my amendments to meet her concerns. But it does not include general evidence of promiscuity or having sex with someone of a different race or age. Consent on one occasion does not mean consent on another, and consent to one man does not mean consent to a different one.
There have been unfairnesses in the trials we have been discussing. I am conscious that one does not wish to do injustice to defendants. But defendants are not the only ones who have a legitimate interest in the conduct of trials. Of course, complainants do, and there is the wider public interest in securing not only the acquittals of those who are not guilty but also the convictions of those who are.
The one thing which has emerged from this debate is that there is a difference between belief in consent and consent. There is nothing in Clause 40 which will limit evidence which truly goes to belief in consent so long as one makes the rigorous analysis which is called for in those circumstances.

35
I do not believe that the worries and concerns which have been put forward are justified. The noble Baroness said that juries will be given less background information. They will certainly be given less information which, properly analysed, is not relevant. I agree with her.
The noble and learned Lord, Lord Ackner, spoke about a history of past promiscuity if it is particularly strong. Such a history does not go to credibility and it does not go to consent, except in the limited circumstances I have described. If the defendant knew of it, it may well go to a belief in consent or not.
At the end of this debate, which has gone on a little while now, we are coming to stances which have been fully described and which will not change. I recognise and, I hope, pay honourable regard to the concerns that practitioners, judges and lawyers have had. The voice of the complainant has been heard but from only three noble Lords. I do not suggest in the slightest that those who take a contrary view to mine are contemptuous of the fears expressed by women and those who speak on their behalf. It is a case in which one can honourably disagree with others who have an honourable stance. I believe that we have got this right. If one distinguishes between consent and belief in consent and between sexual activity and credibility, then one reaches the conclusion that with Clause 40 we have it right.
Lord Dholakia: My Lords, before the noble Lord sits down, an important point was raised by the noble Lord, Lord Cope of Berkeley. He mentioned Women Against Rape and the issue that was raised with the Women's Unit at the Cabinet Office. Does the reply from the Women's Unit reflect consultation with women's groups or is the Government's position reflected in that particular letter from the Women's Unit?
Lord Williams of Mostyn: My Lords, it is both, in fact. There has been consultation. It reflects the Government's position. I did not expand on that because I have placed a copy of the letter in the Library and I have sent a copy to noble Lords who were interested on the last occasion.
We have not reached a conclusion about the amendment to the law which may or may not have been proposed as a final stance by the Law Commission. My noble friend Lady Jay was saying that previous sexual history may sometimes be relevant. I believe it is. It is relevant in the circumstances which I have described; namely, a belief in consent or the contemporaneous sexual behaviour which I described. As I said earlier, I cannot adopt the absolutist view that in no circumstance in any criminal trial in this context is the previous sexual history of the complainant not relevant. It is necessary to define what is truly relevant on sustainable grounds.
Viscount Bledisloe: My Lords, before the noble Lord sits down, perhaps I may ask whether he accepts, on the construction of subsection (2) and the use of the word "and", that there will necessarily follow, at least in logic, situations where the judge considers that to exclude the
36
evidence would render the conclusion unsafe but, nonetheless, he is debarred from admitting it by subsection (3) or subsection (5).
Lord Williams of Mostyn: My Lords, we need to turn our minds to the proper analysis of Clause 40.
5 p.m.
Lord Ackner: My Lords, we have had a long debate so I shall be relatively short. I have listened with great care to what the Minister has said and I have not yet followed what is his criticism of the law as it stands and the law as it is being administered.
I did not interrupt him, but I expect that he will agree with the concession made by the noble Lord, Lord Lester, about the observation in the Court of Appeal in the Viola case:
"there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong"—
that is something that he has not accepted—
"or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case".
Nor have I heard any criticism of the final observation made in the Brown case, which is in these simple terms:
"The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could be material upon which in these days a jury could reasonably rely to conclude that the complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary".
In every case it is a question of degree. That does not seem to have been faulted at all. If that is the case, this long, complex amendment is totally unnecessary and it leaves potential situations in which the judge can be satisfied that it is unfair not to permit questioning and yet is obliged not to permit it. An example of that is where he takes the view that the promiscuity was so strong as fairly to be relevant to the issue of credit.
I do not propose to seek to divide the House in relation to my Amendments Nos. 55A and 55B. Unless the noble Baroness, Lady Mallalieu, divides the House on Amendment No. 58, I propose to divide the House on Amendment No. 59. In those circumstances, and bearing in mind what I have said about Amendment No. 59, I beg leave to withdraw Amendment No. 55A and I shall not move Amendment No. 55B.
Amendment, by leave, withdrawn.
[Amendment No. 55B not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 56:
Page 28, line 32, leave out from ("alleged") to first ("the") in line 34 and insert—
("(i) to have taken place at or about the same time as").
The noble Lord said: My Lords, it was intended, when we finished the substantive discussion on the

37
previous group of amendments in the name of the noble and learned Lord, Lord Ackner, that we should break and take the Statement.
Noble Lords: Hear, hear!
Lord Williams of Mostyn: My Lords, I hear noble Lords saying "Hear, hear!". I understand, of course, that my Amendment No. 56 is earlier than the amendment on which the noble and learned Lord, Lord Ackner, wishes to test the opinion of the House. I am perfectly happy to develop Amendment No. 56 because I can do it in less time than on the earlier amendment.
I hope that your Lordships will not think me discourteous, but it is an open-minded, open-hearted, full, generous concession to everything that the noble Baroness, Lady Mallalieu, urged last time. I listened with care. The noble Baroness says that she accepts it. If the noble Baroness accepts it, no further argument is needed. I beg to move.
Baroness Mallalieu: My Lords, I wish to place on record my gratitude to my noble friend. Although in his reply to the last group of amendments he has given no hope to those who moved them, he did the same on the previous occasion but has come back with these changes, which I fully acknowledge are wholesome and, to some extent, meet many of the concerns that I expressed. I am grateful to him.
Lord Cope of Berkeley: My Lords, I have already expressed my gratitude, particularly for the abolition of the 24-hour rule, and I do so again. That just about improves the Bill to the position of acceptability.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 57:
Page 28, line 35, at end insert (", or
(ii) to have been, in any respect, so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence. ").
On Question, amendment agreed to.
[Amendment No. 57A not moved.]
Baroness Mallalieuhad given notice of her intention to move Amendment No. 58:
Page 29, line 16, at end insert—
("( ) Notwithstanding the other provisions of this section, the court may, on application by or on behalf of any accused, give leave for any evidence to be adduced or question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused. ").
The noble Baroness said: My Lords, I do not intend to press this amendment. However, I was profoundly disappointed by the Minister's remarks. I totally agree with him that irrelevant questions should not be asked. I totally agree with him that general or vague allegations
38
of promiscuity should not be permitted. I totally agree with him that fishing expeditions are wrong and I totally agree with him that the true issues should be explored.
However, those are the considerations which judges currently apply when an application is made. Clause 40 causes me great concern because I am afraid that one will find that there are questions that a judge considers relevant to the issues which it would be unfair to the defendant to exclude, but which do not fit the narrow profiles that the clause currently contains.
That said, I do not propose to move the amendment in the hope that the Minister and those who advise him will consider the matter further, having heard expressions of concern from all sides of the House, including from some who support the principle of Clause 40, but are concerned about the complete removal of discretion in this respect.
[Amendment No. 58 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 59:
Leave out Clause 40.
The noble Lord said: My Lords, I have heard everything that has been said by the noble Lord, Lord Williams of Mostyn, in relation to Clause 40 and I do not accept it. The issue, quite straightforwardly, is that a judicial discretion must remain in order that the court can properly deal with the particular circumstances of a case. Those circumstances are infinite and cannot be guessed by this House. Provisions of this sort, as I have indicated, have completely failed in New South Wales and they failed initially in Canada. I have listened carefully to the noble Lord to see whether there is a general judicial discretion in Clause 40. I have failed to find it. Accordingly, I seek the opinion of the House on this clause. I beg to move.
Lord Ackner: My Lords, I support that. I pray in aid everything that the noble Baroness, Lady Mallalieu, has just said and I need take the matter no further.
5.8 p.m.
On Question, Whether the said amendment (No. 59) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 143.

Division No. 1

CONTENTS

Ackner, L. [Teller.]

Elliott of Morpeth. L.

Ailesbury, M.

Foley, L.

Allenby of Megiddo, V.

Glanusk, L.

Anelay of St. Johns, B.

Gray of Contin, L.

Beaumont of Whitley, L.

Harris of Greenwich, L.

Belhaven and Stenton, L.

Harrowby, E.

Biddulph, L.

Holderness, L.

Bledisloe, V.

Hutchinson of Lullington, L.

Campbell of Alloway, L.

Hylton-Foster, B.

Charteris of Amisfield, L.

Kinloss, Ly.

Craig of Radley, L.

Lane, L.

Davidson, V.

Lauderdale, E.

Dearing, L.

Layton, L.

Denham, L

Leigh, L.

39

Liverpool, E.

Saatchi, L.

Lyell, L.

Shannon, E.

McNair, L.

Simon of Glaisdale, L.

Mersey, V.

Tenby, V.

Monro of Langholm, L.

Thomas of Gresford, L. [Teller.]

Monson, L.

Waddington, L.

Moore of Wolvercote, L.

Wade of Chorlton, L.

Morris, L.

Weatherill, L.

Mountevans, L.

Westbury, L.

Ogmore, L.

Wigoder, L.

Park of Monmouth, B.

Wilberforce, L.

Pender, L.

Wilcox, B.

Renton, L.

Winchilsea and Nottingham, E.

Rotherwick, L.

Young, B.

NOT-CONTENTS

Acton, L.

Hamwee, B.

Addington, L.

Hanworth, V.

Ahmed, L.

Hardie, L.

Alli, L.

Hardy of Wath, L.

Amos, B.

Harris of Haringey, L.

Archer of Sandwell, L.

Haskel, L.

Barnett, L.

Hayman, B.

Bassam of Brighton, L.

Hilton of Eggardon, B.

Berkeley, L.

Hogg of Cumbernauld, L.

Birdwood, L.

Hollis of Heigham, B.

Blackstone, B.

Hoyle, L.

Blease, L.

Hughes, L.

Blyth, L.

Hughes of Woodside, L.

Brabazon of Tara, L.

Hunt of Kings Heath, L.

Bragg, L.

Irvine of Lairg, L. [Lord Chancellor.]

Brentford, V.

Bridgeman, V.

Islwyn, L.

Broadbridge, L.

Janner of Braunstone, L.

Brookman, L.

Jeger, B.

Brooks of Tremorfa, L.

Kirkhill, L.

Burlison, L.

Lester of Herne Hill, L.

Calverley, L.

Lockwood, B.

Carlisle, E.

Lofthouse of Pontefract, L.

Carmichael of Kelvingrove, L.

Longford, E.

Carnegy of Lour, B.

Lovell-Davis, L.

Carter, L. [Teller.]

Ludford, B.

Castle of Blackburn, B.

McCarthy, L.

Chorley, L.

Macdonald of Tradeston, L.

Christopher, L.

McIntosh of Haringey, L.

Clarke of Hampstead, L.

[Teller.]

Clement-Jones, L.

Mackenzie of Framwellgate, L.

Clinton-Davis, L.

Maddock, B.

Cocks of Hartcliffe, L.

Mar and Kellie, E.

Colville of Culross, V.

Marlesford, L.

Cope of Berkeley, L.

Marsh, L.

Courtown, E.

Mason of Barnsley, L.

Currie of Marylebone, L.

Merlyn-Rees, L.

David, B.

Milner of Leeds, L.

Davies of Oldham, L.

Molloy, L.

Dean of Thornton-le-Fylde, B.

Monkswell, L.

Dholakia, L.

Montague of Oxford, L.

Diamond, L.

Morris of Castle Morris, L.

Dixon, L.

Morris of Manchester, L.

Donoughue, L.

Murray of Epping Forest, L.

Dormand of Easington, L.

Nicol, B.

Dubs, L.

Northesk, E.

Eatwell, L.

Norton, L.

Evans of Parkside, L.

Nunburnholme, L.

Evans of Watford, L.

Orme, L.

Falconer of Thoroton, L.

Patel, L.

Farrington of Ribbleton, B.

Peston, L.

Gilbert, L.

Plant of Highfield, L.

Gladwin of Clee, L.

Ponsonby of Shulbrede, L.

Gordon of Strathblane, L.

Prys-Davies, L.

Goudie, B.

Puttnam, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Rea, L.

Grenfell, L.

Redesdale, L.

Hacking, L.

Rodgers of Quarry Bank, L.

40

Russell-Johnston, L.

Thomas of Walliswood, B.

Sainsbury of Turville, L.

Thomson of Monifieth, L.

Sawyer, L.

Thornton, B.

Sefton of Garston, L.

Tordoff, L.

Shepherd, L.

Tryon, L.

Simon, V.

Uddin, B.

Simon of Highbury, L.

Walker of Doncaster, L.

Smith of Gilmorehill, B.

Warner, L.

Strabolgi, L.

Wedderburn of Charlton, L.

Swinfen, L.

Whitty, L.

Symons of Vernham Dean, B.

Williams of Elvel, L.

Taylor of Blackburn, L.

Williams of Mostyn, L.

Thomas of Macclesfield, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

Access to Open Countryside
5.19 p.m.
Lord Whitty: My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Minister for the Environment. Documents referred to in the Statement as being available in the Vote Office are available in the Printed Paper Office. The Statement is as follows:
"In our manifesto we gave a commitment to give people greater freedom to explore our open countryside, balanced by the need to protect the environment and avoid any abuse of greater access. I am pleased to announce to the House today the Government's plans—for England and Wales—to honour our commitment. A number of documents, including our Framework for Action, will be available in the Vote Office when I have completed this Statement.
"Securing greater access to open countryside will bring new opportunities for improving people's health—physical and mental. It will enable everybody to experience the wonders of wildlife and beautiful landscapes.
"Over the past 50 years a voluntary approach has delivered relatively little and, despite some commendable initiatives, there is little prospect of much new access being provided voluntarily in future. Even if much more access could be secured by voluntary means, the access would not be permanent and the costs would be high. Only a new statutory right will deliver cost-effectively the extent and permanence of access we are seeking. There has been much ill-informed speculation that the Government would not introduce a statutory right of access. Today I can confirm that we have decided to bring forward legislation, as soon as parliamentary time allows, to provide for a general statutory right of area access, coupled with responsibilities for walkers to respect the rights of landowners and managers.
"The legislation will include improvements to the rights-of-way system. This comprehensive package will provide fresh opportunities for walking and other recreational pursuits, while taking the legitimate interests of land managers fully into account.

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"The new statutory right of access will apply to mountain, moor, heath and down, subject to mapping by the new countryside agency and Countryside Council for Wales, and to registered common land. That amounts to about 4 million acres. The right may be extended to other types of open country, such as some woodland. It will apply to access on foot for open-air recreation.
"The Government studied over 2, 000 responses to our consultation document; we talked to a wide range of organisations; we visited key sites; and we commissioned research into the costs and benefits of different approaches. We are now convinced that legislation is the only way to make sure people will be free in perpetuity to explore open countryside.
"But we accept that there are real concerns about the impact of a new statutory right. The statutory right will therefore be subject to proper and reasonable limitations and there will be codes of practice. It will not apply to developed land or to agricultural land, except that used for extensive grazing. There is no question of giving people a right to trample over crops or through other people's gardens. There will be strict restrictions on dogs. Land may be closed when necessary for health, safety or defence reasons. Further, the new countryside agency, the Countryside Council for Wales and national parks authorities will be able to authorise closures or restrictions to protect wildlife or historic interest or for land management reasons, as long as the landowner can demonstrate that restriction is necessary.
"We attach considerable importance to local agreement being reached whenever possible and will be promoting local access forums, with all the main interests represented, to advise on the details of any local limitations before the right comes into force. The aim of the forum will be to achieve consensus. But no member of the forum will have a final veto. The forums will be advisory; the decisions will be for the statutory agencies.
"In addition, land managers will be able to close land temporarily without prior consent for a number of days each year. We propose to set the annual limit initially at 28 days, primarily for land management purposes, though landowners will also be able to close land for other reasons for up to 12 of the 28 days. If necessary, provision will be made to ensure that access is not restricted unreasonably at peak times.
"I now turn to rights of way. We want to strengthen and develop the rights of way network to enable it to respond to the changing requirements of recreational use and the needs of land managers. Before concluding on the detail of new legislation, we will consider recommendations from the Countryside Commission and seek further views. There is no question of failing to secure the proper recording and maintenance of rights of way, or of reducing the overall value of the rights of way network.
"Experience in Scotland and in Wales has shown that much consensus can also be achieved at national level. We therefore propose to ask the countryside
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agency to establish a national access forum in England. In Wales, the Countryside Council for Wales will be asked to consider how best to develop its existing informal arrangements.
"It will be clear from what I have said so far that the new countryside agency will play an important role in implementing the new statutory right, as well as promoting sustainable rural development and protecting our finest landscapes. I can today announce that Ewen Cameron has been appointed to chair the agency. He has made clear that he enthusiastically supports the Government's access proposals. We have also appointed Pamela Warhurst, currently leader of Calderdale Council, as deputy chair. She will be playing a leading role in the agency's implementation of the access package.
"Though there will be some extra costs for local authorities and statutory agencies, for which we will make provision, we do not expect our legislative proposals to have major financial consequences. Nevertheless, the benefits of the basic statutory right and of the rights of way network will be much enhanced by further expenditure on, for example, the provision of additional routes and readily available information. The lottery has already made a considerable contribution to improving access to the countryside. My right honourable friend the Secretary of State for Culture, Media and Spoil will be asking lottery distributors to look at how their funding might contribute further. We are also considering what part the New Opportunities Fund, through the proposed green spaces initiative, might be able to play. My right honourable friend the Minister of Agriculture, Fisheries and Food will make sure that the targeting of the access elements of agri-environment schemes contributes to the overall strategy. In Wales that will be a matter for the National Assembly for Wales.
"Almost exactly 50 years ago, a Labour government introduced legislation to safeguard our finest countryside and to open it to the nation. The largely voluntary approach to access of the National Parks and Access to the Countryside Act 1949 has proved inadequate. Glorious parts of our heritage are still the preserve of the few, not the delight of the many. As soon as parliamentary time permits, we will bring forward legislation to remedy that. We look forward to discussing widely the details of this package, but we are firm on the principles. This balanced package fully meets the commitment we gave in our manifesto and will be a lasting tribute to the memory of John Smith. I trust that Members on both sides of the House will support it".
My Lords, that concludes the Statement.
5.17 p.m.
Lord Luke: My Lords, I thank the Minister for repeating the Statement made today by his right honourable friend in another place.
We on this side of the House are disappointed in the Statement, which seems to confirm that the Government's intention is to ramrod through legislation which, if the Statement is a guide, will be ill-considered,

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misguided, contradictory and likely to cause an even greater divide between town and country. While we accept that the national parks authorities generally welcome the announcement, their position is different from the everyday practice of farmers and landowners.
Our primary concern at this stage is that the co-operation between many private and public bodies to provide more access for the public to the countryside in recent years is put in jeopardy. One could ask many questions, and I must first ask how it was that the BBC radio seemed to be so singularly ill-informed this morning, though I know that the Government are not responsible for BBC radio?
Four million acres was mentioned by the Minister, and he suggested that the right might be extended to other types of land, such as woodland. That is conveniently open-ended. Will the Minister define how much other land and what sort of woodland is being considered? What is "extensive grazing"? How does the Minister define "extensive", and what are the classes of grazing? What about deer and other wild animals? Another problem has been raised by those who farm on downland. How will the public be expected to tell the difference between land on which they can roam and land on which grass is being grown for silage?
I am glad to read about the proposed strict restrictions on dogs. Are the Government aware that it must apply to dogs on short leads only—not long ones—as ground-nesting birds often make their nests close to the sides of paths? Who will finance the insurance required for personal and public liability? The Statement refers to access being available at peak times. What is considered a peak time? How will people get to these places? They are way out in the wilds. Will vast car parks be created? Who will be responsible for cleaning the sites and enforcing the regulations? There seems to be the opportunity for a lot of pollution to be created in places where there is little, if any, now.
The Statement refers to the need for land managers. Will the Minister expand on that? It is said that much consensus can be achieved at national level. To a great extent that has been done already in the past 10 years, in the present provision for access, but that is now at serious risk. The Statement also refers to "some extra costs". We believe that there will be many. Have the Government taken into consideration the possibility that they may be faced with court challenges and legal costs?
If the Government intend to use lottery money, as the Statement seems to say, I understand what they mean by the lack of major financial consequences. Is the Minister committing money to extra access provisions when such money may not be there? He referred to monies from agri-environment schemes but they may not yet be available and could be subject to the outcome of common agricultural policy reforms that have yet to be agreed. In a recent survey about access, a large majority stated that they wish to walk within a short distance of their homes and along well-marked linear routes. I fear the result will be no co-operation and no compensation. The message to farmers and landowners is clear. The
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Government are not interested in their views. I fear that the result will be most unsatisfactory from all points of view.
5.31 p.m.
Baroness Hamwee: My Lords, I thank the Minister for repeating the Statement, which is about the extent to which I agree with the noble Lord who spoke for the Official Opposition. The Liberal Democrats will support legislation provided—I emphasise that word—there is a fair deal for all stakeholders. I was pleased at the use of word "balanced" early in the Statement. It seems that the debate has suffered from the language. Talking about the right to roam suggests an extreme right. I am glad that in their proposals the Government are endeavouring to bring the pendulum back somewhere near the centre.
My first question follows from the Minister's comment that there will be legislation as soon as parliamentary time allows. The whole House would be glad if he could say more this afternoon. If the Government cannot state that they anticipate legislation within the lifetime of this Parliament, the Statement is less of a commitment than we would like.
The Statement makes reference to the need for the new countryside agency and the Countryside Council for Wales to undertake mapping. It would be interesting to know the extent of that exercise. It sounds ambitious and detailed and may delay the effects of the legislation once enacted.
The Statement also refers to codes of practice and we will undoubtedly spend time considering how the legislation can be policed and enforced. I anticipate that it may be easier to enforce the legislation against a landowner who blocks a right of way than against a walker who deliberately or carelessly defaces the countryside. I do not suggest that the problems created for landowners by careless or thoughtless walkers should be ignored or underestimated. In both cases, funding enforcement will be an important part of the legislation.
Increasing access will undoubtedly have an environmental impact and cost implications for the owners of land. We support local forums and agreements, although we are well aware that with difficult issues such as access, consensus is not necessarily achieved by legislation. We will need to consider the detail of land closure—how it will work, what indications will be given to the public and what alternative routes will be provided.
To return to that part of the Statement dealing with rights of way, I welcome that there is no question of failing to secure the proper recording and maintenance of rights of way, but the Government should be in no doubt that such will be a costly exercise for local authorities. I have seen that at local level and know how temperatures are apt to rise over small details.
We note the appointment of the chair of the new agency. No doubt the Government have given careful thought to the signals that that particular appointment will send.

45
Returning to the financial consequences, I was surprised that the Government confidently state that they do not expect major financial consequences. I was concerned to read of the role of lottery funding. The question of additionality is one in which the House will no doubt be most interested. The Government are right to observe in the Statement that,
"Glorious parts of the heritage are still the preserve of the few".
We hope that legislation will provide the opportunity to ensure access for disabled people and others to all country parks and heritage sites that are maintained with public funding. We look forward to the legislation. We realise that the well-known devil who makes life so difficult for the Government will be in the detail.
5.37 p.m.
Lord Whitty: My Lords, I thank the noble Lord, Lord Luke, and the noble Baroness, Lady Hamwee, for their comments. I regret that the noble Lord was unable to give even a qualified welcome to our approach and that the official Opposition are stuck in an argument that the facts do not justify. I welcome the qualified support from the Liberal Democrat Benches, which more accurately reflects the feeling of the country—both the nation as a whole and the countryside itself.
I shall briefly repeat the arguments against a purely voluntary approach. We have not only made our manifesto pledge clear but promised action because of the unsatisfactory nature of the voluntary approach over the past 50 years. It is also true that since the Government's approach and intent have been known, the voluntary alternative has not delivered significantly further progress. Research confirms that a voluntary approach, even with high incentive payments, is likely to produce less than one quarter of the additional area of access that would be obtained by a general statutory right. To achieve more would require such a dramatic change of behaviour on past trends that, we believe, the voluntary approach would not work or would work slowly.
The quality of access available under existing voluntary agreements varies enormously. Hours of access can be limited, access can be confined to linear routes or allowed only to certain groups of people. Under a general statutory right, everyone will be clear that is their right to roam on the open part of our countryside. It will also give greater clarity to the confusing plethora of voluntary arrangements, which are difficult to map or otherwise record. A statutory right will make mapping nationally easier and cover all open countryside. People need to know that they have the right to walk over certain types of countryside in most types of circumstances. The limitations of that must be clearly set out; for example, for limited periods they will be required to have consent from the statutory authorities.
The noble Lord, Lord Luke, asked a number of questions in that respect. It may well be important for me to repeat that this right of access does not cover agricultural, cultivated land; it covers mountain, moor, heath and down and registered common land. The reference to extensive grazing means essentially that—
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in other words, rough grazing on open countryside. The noble Lord also asked what the reference to "extension" meant. We have asked the countryside agency and the Forestry Commission to look at the possibility of including access at a later stage to other land, especially woodland. Indeed, cliff land also probably falls into that category. However, the manifesto commitment was to the areas defined and the statutory right will extend to those areas in the first instance.
The noble Lord appeared to believe that the latter would lead to vast numbers of charabancs turning up in the remotest part of our countryside. A large proportion of this land is, as other speakers have said, not particularly accessible. It will require a serious dedication to walking and rambling to gain access to most of it. We expect the level of usage to be low in most areas. The impact will be limited in terms of damage to the land, or whatever.
The noble Lord and the noble Baroness both asked whether facilities would be provided. The noble Baroness also referred to the role of lottery money. We shall be looking at those areas where there might be some pressure of demand for lottery money to be used for non-statutory facilities, in order to ease any pressure that might arise. However, as I said, that will arise in very limited areas.
We were attempting to achieve a fair deal on the proposals. Therefore, we are looking to local fora—or, "forums" as set out in the Statement—to consider mapping the totality of England and Wales so as to make it clear which areas are covered by the definitions in the statute. We are asking the countryside agency and the Ordnance Survey to look at this area in order to produce a comprehensive mapping system so that everyone will be clear in that respect.
Reference was also made to dogs. It is clear that these rights relate to walkers. They do not relate to motorcyclists, bikers, cyclists, horses or anyone letting a dog off the leash. If there are problems in relation to access and the detailed application of it, we believe that the local forums that we propose to establish will help meet them. They are all stakeholders there; they will be local and the local authority will have a major role in the process. I agree with the noble Baroness that offences created under the legislation and those which are already on the statute book can apply to the ramblers themselves, as well as to landowners prohibiting access. There is a responsibility on everyone to ensure that these rights are not abused. However, they should be genuinely open.
The noble Lord referred to assessment as regards where people wanted to walk. It is true to say that the desire to walk is not universal among the majority of our citizenry—indeed, if they perambulate at all. I have in mind my experience in my other capacity of trying to get people off the roads. However, there is now a growing and important element who want to walk in our countryside and enjoy its facilities. In fact, surveys carried out by both landowners and the Ramblers' Association show over-80 per cent, support for a right to roam in open countryside. Therefore we are doing the nation's will in this respect. We believe that the

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legislation can be introduced with some understanding, with a degree of local consensus and without, I hope, obstruction.
As far as concerns rights of way, there are indeed some problems about the present network. We do not envisage a massive extension in costs to local authorities in mapping properly the rights of way, but some degree of flexibility may be needed on all sides. It is not true that the Government have taken no notice of the views of landowners in that respect; indeed, we have taken them on board. As the noble Baroness said, we wish to reflect the interests of landowners as we do in regard to the countryside agency. In the machinery that we are setting up for this, we believe that the views of everyone need to be taken into account. However, we cannot compromise on what we promised in the election; and, indeed, what the statute will provide is a right to roam for the majority of our citizenry, albeit that only a relatively small minority will take advantage of it. The benefit to them and to the well-being of the nation as a whole, together with a feeling that the countryside does not just belong to a few people, represents an important democratic step and one that I hope will receive at least some support from all sides of the House.
I turn now to the query of the noble Baroness regarding the legislation. Of course, I cannot pre-empt any future declarations in the Queen's Speech, or anywhere else. No doubt my colleague Michael Meacher, and other colleagues, will be considering when best we can introduce it. In terms of implementation, there will be a slight delay in that the requirement for mapping will provide some technical problems. They will no doubt be dealt with as rapidly as possible, but it will not be instantaneous. I trust that I have answered most of the questions raised by both Front Benches.
5.45 p.m.
Lord Denham: My Lords, the Minister set out to answer a question about the legislation put by the noble Baroness, Lady Hamwee, but did not give a very thorough answer. However, did not the manifesto commitment refer to this Parliament?
Lord Whitty: My Lords, yes, it was a manifesto for this Parliament. But, of course, all manifesto commitments are subject to parliamentary time and to decisions regarding the Queen's Speech. I therefore simply maintain the convention of stating that any announcement on legislation should be left to the Queen's Speech.
Lord Hardy of Wath: My Lords, is it not clear that the Government are seeking to marry their social commitments and political obligations with their environmental responsibilities? Would it not be appropriate for the Government to accept that all the local forums to which my noble friend referred will be fully aware that the Government accept their continuing obligations to the conservation of species and the adequate protection of habitat? Further, does my noble friend accept that while the majority of ramblers are
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caring and act responsibly, a minority of them will not do so? Surely, therefore, the code of practice will have to be observed. Will the Minister ensure that the Government seek to harness the responsibilities and energies of those who are responsible? Will they seriously consider the role and capacity of the police to take action where that code of conduct is seriously breached?
Lord Whitty: My Lords, I said earlier that it is most important for us to recognise that there are responsibilities on those who take advantage of the right to roam, as well as responsibilities on landowners. That clearly includes the need to protect wildlife and the environment. As I indicated when repeating the Statement, where there are serious problems in relation to potential environmental damage or threats to wildlife, the countryside agency and the other authorities will be able to authorise restrictions or closures in order to protect wildlife or areas of historic interest. The provisions that we propose will meet the conservation and wildlife protection objectives that my noble friend seeks.
Lord Redesdale: My Lords, I must declare an interest as a landowner in Northumberland whose land would fall directly within the criteria that has been established. I should point out that I, and many of the landowners in Northumberland, would support the legislation. One of the problems experienced so far is the fear regarding how wide this legislation will be. However, consultation about the legislation and, indeed, the legislation itself will clear up some of those difficulties.
There appears to be no mention of compensation in the Statement. It seems to be implicit that no economic damage can be done to such areas. Two years ago I spent a very uncomfortable afternoon fighting a fire on heatherland which wiped out a large amount of heather. That fire had been started by walkers on the Pennine Way who had knocked over a burner which had caught fire. Those walkers were never found and much economic hardship was caused to the farmers concerned. Is compensation being considered in this legislation?
Lord Whitty: My Lords, the answer to that is no. Opening up the countryside is not considered by this Government to be subject to compensation. Clearly it remains important to enforce existing statutory offences of trespass and causing damage to property. It will possibly be more important to enforce them once there is more general access to open countryside. However, no new compensation is provided.
Viscount Bledisloe: My Lords, I have two questions about liability. First, will it be possible for an owner occupier to be excluded from normal occupier's liability as regards people being given compulsory access to his land? If not, will the Government recompense owner occupiers for the additional cost of insuring against that liability? Secondly, if damage is caused by a walker or his dog who cannot be identified or is impecunious, will

49
the Government compensate an owner for the damage done by those whom the Government have sent onto an owner's land against his will?
Lord Whitty: No, my Lords. Occupier liability applies irrespective of the statutory right of anyone to be present on one's land. Therefore there is no case for compensation. In the latter case there is arguably a default argument for compensation. However, were that to be adopted generally throughout British law, I think the Government would have to provide compensation on a wide front. There is no intention to provide an exception in this case.
Lord Monro of Langholm: My Lords, did the Government take advice from the access forum established by Scottish Natural Heritage which persuaded all parties harmoniously to adopt a voluntary code of practice which would be generally acceptable throughout Scotland? That shows that a voluntary system would work if everyone accepted it. Does the Minister agree with Scottish Natural Heritage's prime recommendation that any statutory right of access must be exercised responsibly and must be subject to land use requirements? Will the Government put that into English legislation?
Lord Whitty: My Lords, certainly we recognise that the provision is subject to responsible use. Land management requirements will permit access to be restricted subject to the authority of the appropriate statutory authorities, principally the countryside agency. We believe, however, that that provision could be invoked on a relatively limited number of days per year. As regards the voluntary approach, we have certainly taken note of the developments in Scotland and the general consensus on how that system would operate. There is, of course, also an intention to legislate in Scotland on this matter, but this is subject to other developments in Scotland over the coming months. As regards drawing up the code of practice, we hope that we shall reach a harmonious degree of consensus on how that will operate. It is certainly our intention to include in discussions everyone on the landowning side as well as the users of land.
Lord Murray of Epping Forrest: My Lords, can my noble friend give any indication of the Government's thinking on how we can enable disabled people to share the great benefits of the move forward which has been announced today? Does he, like me, welcome the increased emphasis in recent years on the part of the Ramblers' Association and others on improving access for disabled people, through the use of wheelchair walkways, sensory trails and so on? Will he ensure that National Lottery grants that are made in this area are made subject to the provision of adequate access for disabled people? Or, even better, will the Minister ensure that part of the National Lottery grants are ring-fenced for this purpose?
Lord Whitty: My Lords, the terms of National Lottery grants are, I fear, beyond the scope of this
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Statement. I have already indicated that my right honourable friend the Secretary of State for Culture will consider the way in which Lottery grants could be made to improve access to the countryside, which includes access for the disabled and providing facilities for the disabled. Frankly, it is not possible to legislate to provide general access for wheelchair users. Nevertheless local fora, aided by local authorities and lottery grants, could probably improve significantly access to some of our more beautiful parts of the country where at present access is denied to those who cannot walk. However, there is not a general right of wheelchair access, but we hope that some improvements could be made in certain parts of the country in this respect.
Lord Murray of Epping Forest: My Lords—
Baroness Farrington of Ribbleton: My Lords, I remind noble Lords that they may speak once only and then briefly in the form of a comment or a question.
Lord Jopling: My Lords, what will the Government's attitude be to the Bill which has been proposed in another place on this matter? Will they encourage the sponsor to withdraw it, or will they block it? Will the Minister give us an undertaking that the Government will not attempt to tag their proposals onto the Private Member's Bill which is pending in another place and turn that into a government Bill?
Lord Whitty: My Lords, I am not at all sure that it would be proper for me to mention discussions which are continuing between the sponsor of the Bill and my right honourable friend as to how we proceed from here. That is a matter primarily for another place. I suspect that all will become clearer at a later stage. As I said, how that Bill is dealt with is primarily a matter for the other place.
Lord Berkeley: My Lords, the Minister said that forestry was included in the scope of the Bill. Does that include areas that used to be owned by the Forestry Commission that the previous government sold off? The Forestry Commission, of course, allowed public access, but many of the new owners have forbidden this. Will that land be included in the open access provision in the Bill?
Lord Whitty: My Lords, not in the first instance. The intention is for open access to apply to mountain, moor, heath and down. We shall consult on extending that to forestry land. There will be consultations between the countryside agency, the Forestry Commission and other forestry owners as to how far open access could be extended to forestry areas. However, that land is not included in the initial definition and the initial mapping. It was not included in our manifesto commitment. Nevertheless we hope that over time we shall see greater access to forestry land.
Lord Renton: My Lords, is the noble Lord aware that a burning cigarette end can cause damage to a large

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area of moorland and even to woodland? Will the Government bear that in mind and prevent people, for example, from making bonfires just because they want to have a picnic?
Lord Whitty: My Lords, substantial bylaws already exist in relation to bonfires. That matter would certainly be a consideration as regards any additional access to woodland.
Lord Rotherwick: My Lords, I think everyone agrees there is a need for more access in general for people. The argument concerns how we achieve that. I would like to be a little clearer on the Government's proposals as to whether or not they believe that there are times during the year when people should not be allowed access to common land, moorlands, etc., to enable breeding seasons to commence without disturbance. That leads me to my next question. At the moment in many cases codes of practice are scarcely followed. There are certain associations which are good at sticking to the codes of practice. However, as a landowner, just this Sunday I had two groups of three people and dogs in a sensitive area where duck breed. Also this weekend, believe it or not, a green 4 by 4 car was driven into a lake some two miles off a public highway. Do the Government expect the landowners to fund these codes of practice—it would be quite difficult—or will they be funded by the Government?
Lord Whitty: My Lords, nothing in the Statement, or nothing that is likely to be in the legislation, gives any greater access to open countryside by 4 by 4 vehicles than is the case now. I repeat: this relates solely to access by foot.
We envisage a national code of practice to be agreed, we hope by consensus, and issued in effect under the statute. There will no doubt be local codes of practice produced by the local forum. It would not be expensive for the landowner to produce such codes or to enforce such codes. We would expect the organisers of substantial rambles to observe those codes and to urge all their members to observe them.
The noble Lord asked about closed periods. As I indicated in the Statement, for land management purposes—that would include the protection of the breeding season in certain respects—application to the countryside agency or the other authorities would be possible and closures could take place. We would not envisage that being a very lengthy period. Short of obtaining prior consent, the landowner would be able to close the area for up to 28 days. That would probably cover most of the situations the noble Lord has in mind.
The Earl of Onslow: My Lords, I agree with the noble Lord, Lord Rotherwick, that access should be as wide and as reasonable as possible, especially as the landowning classes—I count myself as one of them— seem to be in receipt of vast amounts of subsidies from Europe. In return for subsidies one ought to give something back. I have no difficulty with the concept of the widest possible access. It is what I practice at home.
52
It is not those who are responsible who make the difference; it is all those people who are irresponsible. It is the people who drive 4 by 4 cars into lochs four miles from a road who are irresponsible. No one in his right mind would give them the right to do that. Not even this Government would do that. But in the upland areas—unfortunately I do not have any—there are large amounts of grouse shooting. Someone may have come over from, say, the United States of America, paid £70 or £80 a brace to shoot grouse, and his whole joy is ruined by a general right to roam of some nerds in anoraks.
Baroness Farrington of Ribbleton: My Lords, will the noble Earl come to his question? Other noble Lords want to speak.
The Earl of Onslow: My Lords, even though I support the right to roam, will it be controlled in such a way that other people's interests are not harmed?
Lord Whitty: My Lords, as to subsidies to landowners from the European Union, I cannot possibly comment. Access can be limited in the sense that if the landowner has a shoot he could close the land for a limited period of up to 28 days. That would, as the noble Earl puts it, ensure that at that point "nerds in anoraks" would not be present or in danger during the shoot. However, that would be a limited period of closure and would have to fall within the 28 days' closure without prior consent which relates to all purposes.
Baroness Thomas of Walliswood: My Lords, will safeguards be placed on very fragile land? I am thinking of heath land in southern England, which is now extremely rare and very fragile from an ecological point of view. Being sandy, when one walks over it one denudes it of growing matter. Will there be special protection for such land; and will the legislation enable owners and managers of it to ensure that access is, as at present, along paths rather than by roaming?
Lord Whitty: My Lords, not in that generalised sense. This is open access; it is not confined to linear paths. We regarded that as too great a restriction on access to the countryside as a whole. However, the statutory authorities and the national parks will be able to authorise restrictions to protect fragile land and the management of it, just as they will be able to invoke the restrictions I mentioned previously as regards the protection of wildlife and other aspects of conservation. But the essential element is that it is open access; it is not simply linear access.
Lord Boardman: My Lords, the Statement relates purely to England and Wales. Can the noble Lord say whether there are similar proposals for Scotland?
Lord Whitty: My Lords, there has been an indication that there will be a substantial right to roam in Scotland

53
which will be, if anything, somewhat wider than this. However, the delivery and exact form of that will now be a matter for the Scottish Parliament, not for me.
Viscount Addison: My Lords, perhaps I may add to the intervention of the noble Lord, Lord Renton, about forestry and fires. Although there may be a 28 day holding period to keep people away from forestry or other land that is likely to burn up in very dry conditions if we have a drought—which we do from time to time— will the Government make sure that there is an ability to keep people away from areas that are likely to catch fire very easily?
Lord Whitty: My Lords, to generalise such a requirement could lead to an abuse of the position. The statutory authorities would be able to authorise closures if there were a serious danger of fire in a drought situation. That would be clear from the statute and from the code of practice. I am sure that the countryside agency would wish to pursue a closure or a restriction if that danger were clear.

Youth Justice and Criminal Evidence Bill [H.L.]
6.9 p.m.
Consideration of amendments on Report resumed.
Clause 41 [Interpretation and application of section 40]:
[Amendment No. 60 not moved.]
Clause 42 [Procedure on applications under section 40]:
[Amendment No. 61 not moved.]
Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 62:
Page 30, line 28, leave out from ("where") to ("against") in line 29 and insert ("a criminal investigation has begun in respect of—
(a) an alleged offence").
The noble Lord said: My Lords, in moving Amendment No. 62, I wish to speak also to Amendments Nos. 63 to 65, 67, 67A, 69, 70 and 120. This is a quite large group of amendments. They are both Government and Opposition inspired and have generally the same purpose. Perhaps I may set out briefly why we think mat some changes are necessary and the best way that we may attain our common purpose.
We want to protect the most vulnerable members of our society from unwarranted publicity and irresponsible reporting, in particular when those in question are children and young people who may be involved in a criminal trial in the near future. As the law now stands, once proceedings have begun in a youth court restrictions on reporting automatically apply. We think that in the pre-proceedings stage it cannot be right that there are no such safeguards. Therefore we want to put the appropriate mechanism in place to prevent the
54
authority of the court being bypassed and the lives of innocent youngsters ruined. We also appreciate that there have been quite deep concerns about how the new measures will apply to situations in which it is not clear whether an offence has been committed or who has been involved.
I have been happy to listen to representations about how the policy objective could be best achieved. We are continuing to listen to representatives, in particular from the press and broadcast media, and we have made a number of changes to reflect concerns about which we have been told.
Perhaps I may deal first with the changes suggested by the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. They propose amendments to die way in which the restrictions on reporting will apply. In Amendments Nos. 69 and 70 they suggest the introduction of two new clauses which would apply a differential approach to suspected offenders on the one hand and alleged victims and witnesses on the other. The new clauses introduce a number of interesting ideas. However, we do not think that in their present form they meet the bill. First, the new restrictions would apply only from the point of arrest, thus leaving a loophole of time. Secondly, the mandatory ban on restrictions would apply only to those suspected of committing an offence; those who may have been victims or witnesses would have to apply to the court or have someone apply on their behalf to have restrictions put in place. That could mean a race between the news organisation and the child concerned to see if the former could print a story before the latter had obtained a court order.
The new clauses contain lists of the factors that a court or the Home Secretary might consider before lifting or varying the restrictions. The list is neither exclusive nor exhaustive and at times appears unduly skewed in favour of lifting the ban. There is no requirement in the list to consider the welfare of the child. There is, however, the seed of an interesting idea in producing statutory criteria as a starting-point for the courts.
The final amendment in this group, Amendment No. 120, would remove from Schedule 5 all the transitional provisions which apply to the reporting restrictions under Amendments Nos. 43, 44 and 45. That would not help the successful introduction of these new provisions and therefore, on that basis alone, the amendment is not welcome. It would have the effect of applying the new provisions to proceedings instituted before their commencement date. I am not sure that that was the intention. Having reflected gratefully on the indications from the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, and on comments from representatives of the press, I believe that in our amendments we have gone a long way towards dealing with some of the concerns expressed.
In government Amendments Nos. 62, 63, 64 and 67 we hope to provide greater clarity as to when the restriction will apply. That is now identified as the beginning of a criminal investigation, whether by the police or another investigative authority. That is more easily ascertained than the "point of allegation" yet still

55
effectively closes a large proportion of the legal loophole to which I referred. I do not believe that Amendment No. 67A, which adjusts our definition of criminal investigation, is necessary.
We have also included, I hope to your Lordships' satisfaction, a specific consideration of the welfare of the child when a court is considering whether to lift or vary the restrictions. That should be a key element of any decision when one is thinking about the potentially harmful effects of negative publicity. That is achieved by way of a new subsection introduced by Amendment No. 65.
I repeat: it is difficult to get these matters absolutely right. I am perfectly happy to listen with an open mind to reasoned, considered arguments. For the moment, I invite the House to accept government Amendments Nos. 62 to 65 and 67, and invite noble Lords to withdraw their amendments on the basis that we have a common purpose and it may be that our amendments fit the bill better. I beg to move.
6.15 p.m.
Lord Cope of Berkeley: My Lords, I am grateful to the noble Lord for responding to the calls we made earlier, which came from the press and electronic media, for improvements in the clauses that are now the subject of debate.
The amendments before us deal in part with the definition of the time from when the new reporting restrictions will start. Amendment No. 62 and Amendment No. 67 in particular mean that the reporting restrictions start when an investigation begins into whether a person should be charged with an offence. I am sure it is not necessary for a particular person to be identified before these provisions will be triggered. Often, in the early stages, it will be a person unknown who has apparently, or may have, committed an offence.
My contacts with the news media suggest that there may still be some difficulty with the definition as to when the investigation begins. Perhaps I may give an example. I ask your Lordships to consider what happens when a child is missing. The main effort in the early stages of police involvement in such a case is to find the child. It may be, as everyone in these cases hopes, that the child will be found unharmed and will merely have strayed. But from the first moment that the police are involved they will be looking for any hint or possible evidence that a crime has been committed. I am not sure whether that counts as "investigating" within the terms being inserted by the amendments. At that stage the nature of the crime that may have been committed will be completely unknown. It could be murder, abduction, sexual offences or all sorts of other crimes. The police are likely to say that they hope that no crime has been committed; but at the same time it will be in the forefront of their minds, and they will be actively looking for any indication of that as part of their investigation. Does that mean that, from the moment a child goes missing, the police should be considered to be investigating an alleged offence to see whether a person unknown should be charged with it, or is there a window
56
for reporting between the disappearance of the child and the criminal investigation being thought to have commenced?
Amendment No. 67 introduces the question of the police investigation. It refers to,
"persons charged with the duty of investigating".
I realise that that is intended to include in the definition Customs and Excise and various authorities mentioned in Committee which might also be investigating in a particular case. However, the phrase might also be held to cover private detectives. It would not be very satisfactory if only private detectives were involved. How would any authority know, and hence how on earth could the press be expected to know, that a private investigator was investigating what might turn out to be a crime? I have therefore suggested in Amendment No. 67A that the words "by law" should be inserted, so that the provision would read, "other persons charged by law with the duty of investigating offences." That might confine the provision to the official investigating authorities, the police, Customs and others.
The later amendments in this group, Amendments Nos. 69 to 70 and Amendment No. 120 were suggested to my noble friend Lord Astor and myself by representatives of the news media. They are worth consideration. The concern remains that the same event triggers a ban on the alleged offender, the victim and any witnesses being identified. The provision is broad. I am glad to hear from the Minister that he is continuing to discuss it with the news media.
There remains some awkwardness in the wording. We are agreed in all parts of the House that an extension of the reporting restrictions is desirable but, as the Minister acknowledged, definition is difficult. We are all struggling to find the right words in which to phrase the matter in law so that there are no unreasonable difficulties placed in the way of the news media. The news media are one of the bulwarks of the freedom of our society. They should not be unreasonably restrained by the law from reporting things which are of public interest. That is public interest in the sense of the interests of the public and also in the sense that the public are interested in such matters. One has more sympathy with the former than the latter; nevertheless they both have their importance.
Lord Windlesham: My Lords, I also took part in the debate in Committee on reporting restrictions. I am pleased to see the changes that the Government have tabled as a result of the discussion we had on a whole series of amendments at that stage.
My noble friends Lord Cope and Lord Astor have received representations from the news media. However, the standpoint from which I spoke, as the Minister will recall, was that of the organisations, Justice and the NSPCC. Of course, the news media have a very important role in reporting what will now be criminal incidents, although not according to the first amendment tabled at Report stage. The news media also have an important role in the paramount interests of the child. From that viewpoint, Amendment No. 65 put forward by the noble Lord, Lord Williams of Mostyn,

57
inserts a specific obligation on the court when considering whether to lift reporting restrictions. It states that:
"when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person".
It seems to me that the addition of that wording to the Bill more accurately reflects the international obligations to which I referred in Committee than the Bill as originally drafted. It should be welcomed accordingly.
Viscount Brentford: My Lords, can the Minister clarify a question which was partly raised by my noble friend Lord Cope? The situation of a child going missing would not initially come under Clause 43 because there would not necessarily be any offence committed and no criminal investigation. There would be a search for the missing child. However, at a later stage it could become a criminal investigation if the search were abortive and it became the view, presumably of the police, that a criminal offence had occurred. In the first part, presumably, there would be no restriction on the media reporting the missing child. They could publish photographs of the child which would undoubtedly be helpful so that the public could look for him or her. However, presumably at some stage it would become a criminal investigation, there would be an offence, and restrictions would be imposed. Can the Minister clarify how it would work out in practice on the present basis?
Lord Williams of Mostyn: My Lords, I am grateful for the response, not least that of the noble Lord, Lord Windlesham. His earlier intervention was a useful trigger to see whether we had got the balance right. It is a balance. I agree with the noble Lord, Lord Cope of Berkeley, that the press is a bulwark of freedom and one cannot simply pay lip service to it and say, "Oh, by the way, but. "I hope we are demonstrating that we want everyone's interests borne in mind.
The question of the noble Viscount, Lord Brentford, overlaps with that raised by the noble Lord, Lord Cope. It concerns the situation of a missing child. At that stage the child could have run off, fallen asleep in a garden shed or whatever. Both noble Lords are right. At that stage it is a search for a missing child. There is no indication or presupposition that an offence has occurred. It is not until it is clear that an offence has taken place that the new provision starts to bite. Obviously, if the help of the press is required in the early stages, then the powers within the clause to lift reporting restrictions can be employed. There will be a point at which perhaps there is a degree of uncertainty, where the press are regularly genuinely helpful in assisting in the context of young children who have gone missing.
The noble Lord, Lord Cope, asked about the definition of,
"persons charged with the duty of investigating offences".
That does not include private detectives. They have no duty to investigate offences. It comes from precedent and is intended to include law enforcement agencies, as
58
the noble Lord rightly surmised, other than the police. It is taken from Section 51 of the Criminal Justice and Public Order Act 1994. What we have tried to do is tighten up the circumstances to refer to a criminal investigation so that those in the press have, a greater opportunity of certainty as to what they can print and what they are in danger of printing unlawfully. I am obliged for the contributions that have been made and commend the amendment.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 63 to 65:
Page 30, line 32, leave out ("that a") and insert ("an alleged').
Page 30, line 33, leave out ("has been").
Page 31, line 21, at end insert —
("( ) However, when deciding whether to make such an order dispensing (to any extent) with the restrictions imposed by subsection (2) in relation to a person, the court shall have regard to the welfare of that person. ").
On Question, amendments agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 66:
Page 31, line 31, at end insert —
("( ) In the case of a decision of a magistrates' court in England and Wales, or a court of summary jurisdiction in Northern Ireland, to make or refuse to make an order under subsection (6), the following persons, namely—

(a) any person who was a party to the proceedings on the application for the order, and

(b) with the leave of the Crown Court, any other person,

may, in accordance with rules of court, appeal to the Crown Court against that decision or appear or be represented at the hearing of such an appeal.
( ) On such an appeal the Crown Court —

(a) may make such order as is necessary to give effect to its determination of the appeal; and

(b) may also make such incidental or consequential orders as appear to it to be just. ").

The noble Lord said: My Lords, the amendment is to deal with the concerns of the media who have represented to me their anxiety that the clause as drafted would prevent them properly reporting events of potentially national significance. They have given examples which they recognise as high profile cases such as the Dunblane tragedy or the events and the heroic conduct of the nursery nurse, Lisa Potts.
Amendment No. 66 has therefore been introduced to give an appeal procedure under Clause 43 which would allow any interested party, with the leave of the court, to appeal against the making or the failure to make an order lifting mandatory reporting bans. This would allow a further stage of discussion about whether or not it would be in the interests of justice to lift the reporting restrictions. It applies equally to all involved in the case—any person who is a party to the proceedings on the original application to have the restrictions lifted, although he may appeal. And the Crown Court has the option of allowing any other persons to appeal if they

59
have the leave of the court. I hope that your Lordships will agree that the amendment is an important safeguard for the interests of all those involved. I beg to move.
Lord Cope of Berkeley: My Lords, I support the amendment but for the avoidance of doubt I believe that "any other person" could include the news media. I am glad to see that the Minister confirms that from his sedentary position.
Lord Williams of Mostyn: My Lords, yes. Perhaps I ought to have said that the appeal to the Crown Court offers the opportunity of a speedy appeal, bearing in mind that the media often say, rightly, that news is a fragile and perishable commodity.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 67:
Page 31, line 35, at end insert—
("( ) any reference to a criminal investigation, in relation to an alleged offence, is to an investigation conducted by police officers, or other persons charged with the duty of investigating offences, with a view to it being ascertained whether a person should be charged with the offence;").
[Amendment No. 67A, as an amendment to Amendment No. 67, not moved.]
On Question, Amendment No. 67 agreed to.
6.30 p.m.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 68:
Page 31, line 42, at end insert—
("( ) Nothing in this section shall impose any restriction on the police or any prosecuting authority from publishing information in the course of their duties, nor on the reporting of any such publication. ").
The noble Lord said: My Lords, Amendment No. 68 returns us to the position of the police that we discussed briefly at Committee stage. The amendment seeks to give the police permission to release information on their own behalf. The intention of Clause 43 and the clauses that follow is to restrict the publishing activities of the news media, but I believe that they have the additional effect of restricting the activities of the police in their investigations. I am concerned as to what the police are to do when a crime involving a child as either a victim or suspect is under investigation and they need help from the public. One example is the case of a missing child. The Minister has just said that the clauses that restrict the giving of information bite only when a crime is believed to have been committed. However, as I said a few moments ago, I believe that the police will at least be looking out for evidence from the first moment that they come on the scene. There may be some evidence of a possible crime at an early stage which may merely be the circumstances in which the child has disappeared.
As the Bill stands at present, the police would have to go to court to get permission to appeal for public assistance in looking for the child or perhaps to identify the red car which was outside the school at the time of the disappearance, or shortly before it, etc. This can
60
occur in all kinds of ways. As it happened, I was with my local police a couple of years ago and found myself involved with them in the search for a missing person in the middle of the night. That case involved an elderly person, not a child, who had suffered memory loss. However, it could presumably have been either. The police encountered a great deal of difficulty in collecting sufficient policemen in a short time to search parkland and woodland to look for the missing person. I am glad to say that the individual turned up on his or her own account satisfactorily before too long. If the police had wanted to make an announcement I do not believe that it would have been desirable if they had had to be distracted by the need to find a court to get permission to seek public assistance.
We all realise—if we do not we were reminded of it the other day—that duty judges and magistrates are available at short notice for these purposes. The Home Secretary made use of that facility the other weekend when seeking an injunction following the leak of the Lawrence report. The delay involved in getting that injunction illustrates very well the problems that may be encountered. The delay was only a few hours but, given the way that it worked, it was important for the newspapers. It had the rather nice effect that we provincials were able to read something of importance in the papers that those in London could not. Looked at solely from that point of view, it was a rather pleasurable experience. If only it had made much better reading on that particular occasion. That turned out to be a somewhat pointless injunction. I do not develop it except to illustrate the fact that it can take time. Perhaps it is only a matter of hours, but that can be important both for newspapers and the investigation if someone is missing or if it involves other types of crime for which the police require assistance.
It is important therefore that whatever restrictions we decide to place on the media, with the various safeguards that are available, we should not place on the police in the course of their duties. I have tried to phrase the amendment, no doubt imperfectly, so that there is no
"restriction on the police or any prosecuting authority from publishing information in the course of their duties".
It is only in the course of their duties that this applies. It does not give the police carte blanche but it assists them with their duties and it is an important safeguard to place in the Bill at this point. I beg to move.
Viscount Brentford: My Lords, I support my noble friend's amendment. Like him, about three or four weeks ago I was at a local police station one night during which three cases involving missing persons arose. Speed was very much of the essence. There was then no question of any great publicity. I am glad to say that those missing persons, all of different ages, turned up before I left the police station in the early hours of the morning. I believe that this is a simple measure that will facilitate the work of the police so that they do not have to go to a court if they believe that publicity will help and press restrictions should be lifted. Anything

61
that facilitates the very professional job that they normally carry out is to be welcomed. I support the amendment.
Lord Williams of Mostyn: My Lords, I sympathise with the spirit of the amendment, but I hope to be able to reassure noble Lords that it is not necessary on two bases. The evening occurrences to which the noble Lord and the noble Viscount have referred would not be relevant in the context of Clause 43 except in certain circumstances. Clause 43(1) starts to bite only where an allegation has been made that an offence has been committed, or that a civil offence has been committed. That is the important context of this discussion. The prohibition on publication that one finds in Clause 43(2) is:
"No matter relating to any person involved in the offence"—
therefore, it is not simply, "Please can you help us to look for someone?"—
"when a minor shall while that person is under the age of 18 be included in any publication".
Therefore, here one is considering a subsequent stage to that identified by the noble Lord and the noble Viscount.
But I concede that there may well be some circumstances in which courts are of the view that this is a criminal investigation and they need to publish certain information. The point of the provision as presently drafted—this is why I say that I hope to provide reassurance—is that in Clause 43(6) it is provided:
"Any appropriate criminal court may by order dispense … with the restrictions … if it is satisfied that it is necessary in the interests of justice to do so".
Very importantly—I take the point about speed and flexibility—the power of a magistrates' court in England and Wales under subsection (6) may be exercised by a single justice. Therefore, one has the opportunity of speed on the fair analogy that if the police need to swear out a warrant at very short notice they can always get hold of a magistrate within their area by administrative arrangements. The point is a fair one to raise, but I hope that I have satisfied any doubts.
Lord Cope of Berkeley: My Lords, unless I misheard him the Minister has just read out a bit of the clause that we amended a few minutes ago. He read out Clause 43(1):
"This section applies where an allegation has been made—
(a) that an offence has been committed".
We have knocked out those words and, by Amendment No. 62 and other amendments, replaced them with the words
"where a criminal investigation has begun in respect of—
(a) an alleged offence".
Lord Williams of Mostyn: My Lords, we have moved on. Whether it is described as an allegation made or a criminal investigation begun, we have moved on— I believe that I used the words "criminal investigation"—from the factual situation which the noble Lord and the noble Viscount identified; namely, we are looking for someone who is missing. I believe that on the illustrations given a crime has not been
62
committed; there is no criminal investigation. My point is that however those circumstances are defined—I hope that we have helped the press by giving a more precise definition—there is still power to go to the court in the form of a single justice to get a relaxation of the restrictions.
Lord Cope of Berkeley: My Lords, I accept what the Minister says, but there will be other instances where it is apparent from the first moment that a crime has been committed. In the case of a missing child it may not be so, and in that case the noble Lord relies on going to a single justice to get permission to release information to the press.
Frankly, that shows a distrust of the police in the course of their duties, which I do not share. I think the police should have the ability, without the added complication of having to go and find a justice in order to get permission, to tell the press what is happening. I think me police should have that ability. It may be that my amendment is not perfectly drafted, but I should like to test the opinion of the House on it and press the point that the restrictions we are trying to introduce are not restrictions on the police—or they should not be— but restrictions solely on the way the news media operate.
Lord Williams of Mostyn: My Lords, I wonder if I might take up that last point, to be helpful and not tedious. The amendment says:
"Nothing in this section shall impose any restriction on the police or any prosecuting authority from publishing information in the course of their duties".
Absolutely. But this is not restricted to the police. The amendment goes on to say:
"nor on the reporting of any such publication"—
and that is the media.
Lord Cope of Berkeley: Yes, my Lords, but there is no point in the police publishing something if it cannot be picked up by the newspapers. All that the newspapers or, for that matter, television and so on could report would be what the police had said. It is only that information supplied by the police or the other authority which would be permitted to be published. So the police would be able to put out an appeal if, for example, they were suspicious of a red car seen outside a school. In that case the police would be able to pass on information to the press and the press would be able to report that, but nothing else.
Lord Williams of Mostyn: My Lords, of course they can report that. The prohibition on reporting refers to any publication if it is likely to lead members of the public to identify a man as a person involved in die offence.
Lord Cope of Berkeley: My Lords, exactly so; and that would be overridden if this amendment were to be inserted. That is what I am trying to achieve: to permit the police to override the restriction in the interests of their investigation.
6.42 p.m.
On Question, Whether the said amendment (No. 68) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 132.

Division No. 2

CONTENTS

Anelay of St. Johns, B.

Lamont of Lerwick, L.

Astor of Hever, L.

Luke, L.

Attlee, E.

Lyell, L.

Baker of Dorking, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Mancroft, L.

Boardman, L.

Massereene and Ferrard, V.

Brentford, V.

Molyneaux of Killead, L.

Bridgeman, V.

Monro of Langholm, L.

Burnham, L. [Teller.]

Monson, L.

Caithness, E.

Montgomery of Alamein, V.

Carnegy of Lour, B.

Morris, L.

Chesham, L.

Mountevans, L.

Colwyn, L.

Napier and Ettrick, L.

Cope of Berkeley, L.

Northesk, E.

Crickhowell, L.

O'Cathain, B.

Dean of Harptree, L.

Park of Monmouth, B.

Denham, L.

Prior, L.

Dixon-Smith, L.

Rawlings, B.

Elton, L.

Renton, L.

Fookes, B.

Rotherwick, L.

Fraser of Carmyllie, L.

Seccombe, B.

Geddes, L.

Skelmersdale, L.

Henley, L. [Teller.]

Stewartby, L.

HolmPatrick, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Evans of Watford, L.

Addington, L.

Falconer of Thoroton, L.

Ahmed, L.

Farrington of Ribbleton, B.

Allenby of Megiddo, V.

Fitt, L.

Alli, L.

Goodhart, L.

Amos, B.

Gordon of Strathblane, L.

Archer of Sandwell, L.

Goudie, B.

Barnett, L.

Gould of Potternewton, B.

Bassam of Brighton, L.

Grenfell, L.

Berkeley, L.

Hacking, L.

Blackstone, B.

Hamwee, B.

Blease, L.

Hanworth, V.

Bragg, L.

Hardie, L.

Brookman, L.

Hardy of Wath, L.

Brooks of Tremorfa, L.

Harris of Greenwich, L.

Burlison, L.

Harrowby, E.

Carlisle, E.

Haskel, L.

Carmichael of Kelvingrove, L.

Hayman, B.

Carter, L. [Teller.]

Hilton of Eggardon, B.

Castle of Blackburn, B.

Hogg of Cumbernauld, L.

Chandos, V.

Hollis of Heigham, B.

Christopher, L.

Hoyle, L.

Clarke of Hampstead, L.

Hughes, L.

Clinton-Davis, L.

Hughes of Woodside, L.

Cocks of Hartcliffe, L.

Hunt of Kings Heath, L.

Colville of Culross, V.

Islwyn, L.

Currie of Marylebone, L.

Jeger, B.

Darcy de Knayth, B.

Jenkins of Hillhead, L.

David, B.

Jenkins of Putney, L.

Davies of Oldham, L.

Kennet, L.

Dean of Thornton-le-Fylde, B.

Kirkhill, L.

Dholakia, L.

Lawrence, L.

Dixon, L.

Lockwood, B.

Donoughue, L.

Lofthouse of Pontefract, L.

Dormand of Easington, L.

Lovell-Davis, L.

Dubs, L.

Ludford, B.

Evans of Parkside, L.

McCarthy, L.

64

Macdonald of Tradeston, L,

Rodgers of Quarry Bank, L.

McIntosh of Haringey, L.

Sainsbury of Turville, L.

[Teller.]

Sawyer, L.

Mackay of Clashfern, L.

Scotland of Asthal, B.

Mackenzie of Framwellgate, L.

Sefton of Garston, L.

McNair, L.

Simon, V.

Maddock, B.

Simon of Highbury, L.

Mallalieu, B.

Smith of Gilmorehill, B.

Mar and Kellie, E.

Stoddart of Swindon, L.

Marsh, L.

Stone of Blackheath, L.

Milner of Leeds, L.

Strabolgi, L.

Molloy, L.

Symons of Vernham Dean, B.

Monkswell, L.

Taylor of Blackburn, L.

Montague of Oxford, L.

Thomas of Gresford, L.

Morris of Castle Morris, L.

Thomas of Macclesfield, L.

Murray of Epping Forest, L.

Thomas of Walliswood, B.

Nicol, B.

Thornton, B.

Orme, L.

Tordoff, L.

Patel, L

Uddin, B.

Peston, L.

Varley, L.

Pitkeathley, B.

Walker of Doncaster, L.

Plant of Highfield, L.

Warner, L.

Ponsonby of Shulbrede, L.

Weatherill, L.

Prys-Davies, L.

Wedderburn of Charlton, L.

Puttnam, L.

Wharton, B.

Ramsay of Cartvale, B.

Whitty, L.

Randall of St. Budeaux, L.

Williams of Elvel, L.

Rea, L.

Williams of Mostyn, L.

Redesdale, L.

Winston, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.51 p.m.
[Amendment No. 69 not moved.]
[Amendment No. 70 not moved.]
Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 71:
Page 32, line 11, at end insert—
("( ) In determining whether to make a direction under subsection (3), the court shall consider—

(a) whether it would be in the interests of justice to do so having regard to all the circumstances of the case including, in particular the desirability of avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings;

(b) whether there is good reason to do so, and in assessing whether there is good reason neither the age nor the welfare of the child shall in itself be considered sufficient or good reason to do so, such that it overrides other relevant factors, including the public interest;

(c) whether it would be contrary to the public interest to do so, having particular regard to the special importance of the public interest in freedom of expression; and

(d) the extent to which the matter has already been made available to the public or previously published.").

The noble Lord said: My Lords, my noble friend Lord Astor and I have received representations from the news media and have embodied them in the amendments in the group which carry our names. The Minister indicated that since Committee he has been engaged in discussions with the news media, but I detect that they are not entirely satisfied with the reporting restrictions under Clause 44. I shall be grateful to know how matters stand in that respect.
Amendments Nos. 76 and 78 have a different provenance. It has been suggested to me by the Law Society of Scotland that a standard approach should be taken by the courts when dealing with a direction under Clause 44(3). A test is already established for courts to apply when they are restricting such directions. The society believes, and I think it has a good point—that it is appropriate that the courts should apply the same test when taking the final step of revoking such a direction. The same arguments apply to Amendment No. 78, which puts the same test into the Bill at a later point in the clause. I beg to move.
Lord Williams of Mostyn: My Lords, Amendments Nos. 71, 73 to 76 and 78 attempt to impose a more stringent test for imposing restrictions under Clause 44. Clause 44 seeks only to replicate Clause 39 of the 1933 Act for criminal cases. We believe that that worked well in its previous guise. The Government's Amendment No. 74 simply mirrors changes already made to Clause 43.
The amendment suggested by the noble Lord would completely change the emphasis of a clause which has protected juveniles since 1933. If there is reason, in the interests of justice or now in the public interest if the restrictions are substantial and unreasonable, the restrictions may be lifted or varied. I know that the amendments are well intentioned, but their consequence would be to downgrade the interests of the welfare of the child in favour of the interests of public clamour for information which we believe should be protected. That is a substantial shift in policy which runs contrary to our stated intention of protecting the most vulnerable members of society when they are involved in court proceedings.
The noble Lord asked about our discussions. They are continuing and there are difficult issues, but the thrust of the amendment would be much more than I could sensibly agree to. I therefore ask the noble Lord to withdraw it.
Lord Cope of Berkeley: My Lords, in the light of the Minister's reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 72:
Page 32, line 11, at end insert—
("( ) A court shall not exercise its power under subsection (3) above (or revoke or vary an excepting direction) without affording any person affected by any direction, if made, an opportunity to make representations.
In this subsection a person affected by a direction includes a person whose publication might be restricted by such a direction. ").
The noble Lord said: My Lords, the amendment is intended to ensure that the press would be enabled to make representations to the court when considering making restrictions. However, Amendment No. 74 has the same effect. Provided that the Minister can confirm that, I shall not press it. I beg to move.
Lord Williams of Mostyn: My Lords, there is no reason why representations cannot be made to the court
66
within the legislation as it stands; in other words, that an interested party has the right to ensure that his point of view is adequately communicated.
Lord Cope of Berkeley: My Lords, in that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 73 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 74:
Page 32, line 15, at end insert—
("(4A) The court or an appellate court may also by direction ("an excepting direction") dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied—

(a) that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and

(b) that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(4B) When deciding whether to make—

(a) a direction under subsection (3) in relation to a person, or

(b) an excepting direction under subsection (4) or (4A) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,

the court or (as the case may be) the appellate court shall have regard to the welfare of that person. ").
On Question, amendment agreed to.
[Amendments Nos. 75 to 79 not moved.]
Clause 45 [Power to restrict reports about certain adult witnesses in criminal proceedings]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 80:
Page 33, line 12, at end insert ("and
(c) that the administration of justice in the proceedings would otherwise be frustrated or rendered impracticable, ").
The noble Lord said: My Lords, Clause 45 takes us away from the issue of those aged under 18 and points us in the direction of vulnerable witnesses, the quality of whose evidence might be affected by the potential publicity given to their evidence. We can all think of such cases and have some sympathy with the thought behind the clause.
Once again, the news media were of the opinion, not entirely unfounded, that the clause went a long way in trying to achieve that objective and left few loopholes within which the public interest could be considered. Although government amendments in the group go some way to deal with the points which were raised with us, it would be useful to know how the Minister's discussions with the news media are progressing and whether we can expect further amendments to the clause. I beg to move.
7 p.m.
Lord Williams of Mostyn: My Lords, the discussions are continuing. Much of it is fine tuning. We are mindful and I hope constantly take account of the need for open justice. That is why subsection (8) already

67
requires the court to have regard to the desirability of avoiding a substantial and unreasonable reporting restriction.
Before making a direction, the court must consider that it would be in the interests of justice to do so, given all the circumstances of the case, including the desirability of avoiding such restrictions. Subsection (9) goes on to give protection to the press because it enables the court to dispense with any restrictions to the extent it thinks it necessary if it is satisfied that it is in the interests of justice to do so.
Following my amendment, the court will be able to lift a restriction if it is unnecessary in the interests of justice; and the court is satisfied that the restrictions impose a substantial and unreasonable restriction on reporting; and that it is in the public interest to remove or relax the direction.
I believe that that gives the court a very substantial discretion indeed for the true protection of the public interest, which is not single in its facets. Although the press interest is extremely important, it is not always paramount. Other vulnerable people in our court system have an interest in the matter. I believe that we have the balance about right here. I have not closed my mind. If the media can produce an alternative form of wording which I am convinced is legitimate, my mind is open. But the press has quite substantial protection here if one looks at subsections (8), (9) and my amendment. I ask the noble Lord not to press the amendment.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for that response. I apologise to your Lordships that I omitted to refer specifically to Amendments Nos. 94 and 95. Those amendments result from suggestions by the Law Society of Scotland that a standard approach should be adopted by the courts in dealing with those directions.
As the Minister said, a test has been established for the courts to apply when determining whether it is appropriate to make a reporting direction. Therefore, it seemed appropriate that the court should apply the same test when taking the step of revoking or varying such a direction. Therefore, the two amendments seek to insert the "interests of justice" test into subsections (10) and (11) in the same way as it exists already in subsection (9). I wonder whether that is necessary or whether the same test would be applied automatically. However, as I said, it has been suggested to me on good legal authority that the amendments may be necessary and I thought it important to put them before your Lordships. Perhaps the Minister will respond to that.
Lord Williams of Mostyn: My Lords, strictly on the noble Lord's supplementary remarks on Amendments Nos. 94 and 95, we believe that the restrictions may be revoked or varied in the interests of justice implicit in subsection (10), which provides that a restriction may be revoked if the grounds for it have gone, and explicit in subsection (9), to which I referred earlier.
Lord Cope of Berkeley: My Lords, in that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 to 88 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 89:
Page 34, line 10, leave out from ("so") to end of line 11 and insert ("and the public interest in").
On Question, amendment agreed to.
[Amendments Nos. 90 and 91 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 92:
Page 34, line 17, at end insert ("or
(b) it is satisfied—

(i) that the effect of those restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and

(ii) that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned. ").
On Question, amendment agreed to.
[Amendments Nos. 93 to 96 not moved.]
Clause 46 [Restrictions on reporting directions under Chapter I or II]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 97:
Leave out Clause 46.
The noble Lord said: My Lords, this amendment refers to reports relating to directions under the earlier Chapters I and II. As I understand it, the clause prevents the reporting of the fact that there is a reporting restriction. It will be a little difficult to report a reporting restriction without reporting something which is restricted by the reporting restriction, if your Lordships follow me. But at the same time, it does not seem to me that it is obvious that the press should not be able to report a reporting restriction. Therefore this amendment may commend itself to your Lordships.
I realise that the Government believe that it is necessary to restrict reporting restrictions but I am not sure why. I beg to move.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord for raising this matter. The short explanation is that the use of special measures should not be reported until after the trial is over or has been abandoned. If those matters are reported before or during the trial, there is a danger that the accused's case may be prejudiced. In many cases, that is a devastating harm to those who are already vulnerable. That is the reason for it.
However, I remind your Lordships that the court may lift or vary the extent of any restrictions imposed under this clause. Therefore, I believe it is necessary to have that prohibition until after the trial is over or has been abandoned.
Lord Cope of Berkeley: My Lords, the Minister did not make clear whether there is a power analogous to

69
this which covers existing restrictions on reporting. One reads frequently that there are reporting restrictions in various cases. I presume that either there is no restriction on reporting reporting restrictions or, alternatively, the courts must, fairly frequently, lift that particular ban. Perhaps the Minister will assist me by telling me whether existing reporting restrictions are covered by restriction.
Lord Williams of Mostyn: My Lords, the answer is that one needs to draw a distinction between reporting restrictions and a special measures direction. There is no restriction on reporting the fact that reporting restrictions have been restricted but there is a restriction on reporting the fact that a special measures order has been made. That is the difference.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for making that clear and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter: My Lords, there is general agreement that if we go straight through, we should be able to finish the Report stage no later than eight o'clock. There are a number of speakers on the Unstarred Question and it would not be fair to keep them beyond eight o'clock. If I have your Lordships' agreement that we can finish by eight o'clock or a little earlier, we should now go straight through.
Lord Cope of Berkeley: My Lords, we shall do our best to facilitate that.
Schedule 2 [Reporting restrictions: miscellaneous amendments]:
[Amendment No. 98 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 99:
Page 52, leave out line 8 and insert ("For subsection (3) substitute—
"(3) This section—

(a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and

(b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3. ").

The noble Lord said: My Lords, this amendment seeks to make it explicit that before anyone is charged with a sexual offence under the Sexual Offences (Amendment) Act 1992, no one, other than the alleged victim, can instruct that information should be published which would lead the public to identify the individual as the complainant in a sexual offence.
The 1992 Act contains a 'two tier' test. The first imposes reporting restrictions over the identification of a complainant of a sexual offence from the moment of allegation. The second provides for reporting restrictions over the identification of a complainant of a sexual offence after someone has been charged.
The Act provides that the courts are allowed a discretion to lift the restrictions which effectively anonymise the complainant only once someone has been accused of the offence. The court can lift the restrictions on the following grounds: before the trial, to encourage witnesses to come forward without whom the defence case is likely to be substantially prejudiced; and during the trial, to avoid a substantial and unreasonable restriction upon the reporting of proceedings, and to serve the public interest.
The Act also provides that at any time after an allegation is made the complainant himself or herself can give written permission which waives any redress against the publication of information which leads to their identification.
I know that the media are concerned that the amendments will have the effect that they will no longer be able to publish details of incidents in ways that actually help the police because we have widened the list of details about the complainant which should not be published if it serves to identify the complainant to the public as a complainant of a sexual offence.
Sometimes printing details of the victim and his or her movements at the time of the alleged offence, without disclosing that it is a sexual offence that is being investigated, can help to jog memories or encourage witnesses to come forward. When this type of coverage is organised—coverage for which the police are often most grateful—the victim may be identified, but often the exact details of the offence which occurred are not.
Once a suspect has been charged, and the details become known, what is known as a "jigsaw identification" occurs quite often and putting two and two together to make four is sometimes possible. In cases where there has been such collaboration between the police and the press, special care is needed in reporting the fact that a suspect has been charged. We have no intention of disturbing any arrangements between the police and press in those circumstances.
The amendments made to the Sexual Offences (Amendment) Act 1992, like those made to Section 49 of the Children and Young Persons Act 1933, are simply intended to bring the terminology used to describe reporting restrictions in that legislation in line with the terms used in this Bill, in other words, to bring them up to date. I believe that this is of assistance to the press in producing clarity and consistency. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 100:
Page 52, line 27, at end insert—
("( ) In subsection (2), after paragraph (m) insert—
"(n) section 17 (abduction of woman by force)."").
The noble Lord said: Amendments Nos. 100 and 101 extend the list of offences covered by the Sexual Offences (Amendment) Act 1992 in order to protect women who are abducted against their will for the purposes of marriage or unlawful sexual intercourse from identification.
The amendments add Section 17 of the Sexual Offences Act 1956—of abduction of a woman by force—and Section 53 of the 1861 Offences Against the Person Act—abduction of a woman against her will— which still applies to Northern Ireland. These offences were omitted from the original Act, but they contain a sexual element which means that it is appropriate to include them. Section 17 of the Sexual Offences Act 1956 is included in the list of sexual offences for the purposes of the Bill in Clause 57(1)(b). I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 101:
Page 52, line 35, at end insert—
("( ) section 53 so far as it relates to abduction of a woman against her will;").
On Question, amendment agreed to.
7.15 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 102:
Page 54, line 18, at end insert—
("( ) After subsection (5) insert—
"(5A) Where—

(a) a person is charged with an offence under this section, and

(b) the offence relates to the inclusion of any matter in a publication in contravention of section 1(1),

it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the allegation in question had been made."").
The noble Lord said: My Lords, this group includes Amendments Nos. 102, 104, 105, 106 and 108. Some of them are government-inspired and some opposition-inspired amendments. We want to look after and protect the most vulnerable members of society, particularly when they are children or young persons who may be involved in a criminal trial in the near future. I repeat that we remain happy to listen to representations from all those who are interested—not simply the media— about how we obtain the policy objective.
The Government propose to introduce two new defences for those accused of committing an offence by publishing or broadcasting in defiance of the restrictions. Amendment No. 102 in my name introduces a change to the Sexual Offences (Amendment) Act 1992 allowing a defence of not suspecting or having reason to suspect that an allegation was made.
To an extent that is paralleled by part of Amendment No. 106, which provides that it is a defence to show that the publisher or broadcaster did not suspect or have reason to suspect that a criminal investigation had begun. That applies in relation to Clause 43.
A further defence differentiates between alleged offenders and victims and witnesses. In the case of victims and witnesses, a public interest defence is included which applies when the reporting restrictions were substantial and unreasonable. That will allow greater scope for reporting news stories of national
72
importance which often, of course—I take the point made by our colleagues in the media—are fast-breaking stories.
The noble Lord, Lord Cope, and the noble Viscount, Lord Astor, tabled Amendment No. 105, rewording Clause 48. They might feel that the government amendments meet their points.
In Amendment No. 108 there is the proposal that amendments may be instituted only by consent of the Attorney-General. In all the circumstances, I do not think that the Attorney-General's personal attention in cases such as these is required. Having conversed with the Law Officers on many occasions, the burden of personal attention is already substantial.
I understand the concern that lies behind this amendment; in other words, that any such decision to proceed is taken only after full and serious consideration. It may be possible to ensure that the decision to prosecute is taken at a sufficiently high level in the Crown Prosecution Service to satisfy the spirit of this amendment. I am happy to tell your Lordships that I have discussed this with our colleagues in the press and I have told them that I am content to consider this in some detail.
The amendments that have been raised, and the thoughts behind them, have given us the opportunity to think further on the Bill. Therefore, I beg to move government Amendment No. 102 and, in due time, Amendment No. 106. On the basis of what I have said I ask the noble Lord and the noble Viscount not to move their amendments.
Lord Cope of Berkeley: My Lords, as the Minister says, he has taken the point to some degree. Amendments Nos. 102 and 106 in particular fulfil some of the matters that we were seeking. Sometimes it will be difficult for the news media to know that such restrictions are supposed to have started. That was one of the criticisms that we made at an earlier stage. Therefore, I am grateful to the Minister for moving Amendment No. 102 and speaking to Amendment No. 106. In those circumstances I shall not pursue the other amendments in the list.
On Amendment No. 108, if the Minister can give an assurance—not today, but in due course—that prosecutions of this nature will be taken at a higher level in the Crown Prosecution Service that will go at least some way to fulfilling the purposes of Amendment No. 108. I am not aware whether there is a precedent for that kind of arrangement, but it may be more satisfactory than drawing the Law Officers into these matters.
On Question, amendment agreed to.
Clause 48 [Offences under this Chapter]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 103:
Page 35, line 40, leave out subsection (1) and insert—
("(1) It is an offence to include in a publication—

(a) any matter in contravention of section 43(2) or of a
direction under section 44(3) or 45(2); or

(b) a report in contravention of section 46. ").

The noble Lord said: My Lords, the Law Society of Scotland has suggested to me that Clause 48, as it presently stands, does not actually create an offence. If there is an ambiguity in this matter it is desirable to remove it, and that is the purpose of Amendment No. 103.
Amendment No. 107 has the same provenance and suggests that the fines alone may not be sufficient deterrent in some cases. I am unsure about the reasoning behind this amendment, but I thought it worth placing before your Lordships for consideration. Some of the news media would be less concerned about fines than about one of their number receiving a custodial sentence. On the whole, given that the benefit to the news media of breaking such a restriction is likely to be financial, a financial penalty may be adequate. As I have said, I thought it worth putting this proposition before your Lordships, given that it has been suggested to me. I beg to move.
Lord Williams of Mostyn: My Lords, this group of amendments comprises Amendments Nos. 103 and 107. I cannot see the value of the proposition that Clause 48 does not provide an offence. I think that it is absolutely plain that it does create offences. If this has been suggested by the Law Society of Scotland, I think that the society has nodded on this one rare occasion because if one reads Clause 48, one sees the offences there constituted. The point is a bad one. I think that the Government's amendments make Amendment No. 103 unnecessary.
Amendment No. 107 raises the happy spectre of having editors and journalists sent to prison. I am instinctively against that— not least on the basis that one of my clients was an editor and was threatened with imprisonment and I was able to guarantee that he would not go to prison because if he had had to share a cell with someone, that would have been a cruel and unusual punishment for the person with whom he would have shared the cell! I am not sure that he was entirely convinced, but at least he was happy to receive a fine. I think that the levels of punishment are sufficient. I am happy once more to be the protagonist of the rights of the free press in indicating that I do not think that members of the press should go to prison.
Lord Cope of Berkeley: My Lords, in view of the Minister's forensic skill in these matters, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 104 and 105 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 106:
Page 36, line 16, at end insert—
("(5A) Where—

(a) a person is charged with an offence under this section, and

(b) the offence relates to the inclusion of any matter in a publication in contravention of section 43(2),

it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the criminal investigation in question had begun.
74
(5B) Where—

(a) paragraphs (a) and (b) of subsection (5A) apply, and

(b) the contravention of section 43(2) does not involve the person by whom the offence mentioned in that provision is alleged to have been committed,

it shall be a defence to show to the satisfaction of the court that the inclusion in the publication of the matter in question was in the public interest on the ground that, to the extent that they operated to prevent that matter from being so included, the effect of the restrictions imposed by section 43(2) was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence. ").
On Question, amendment agreed to.
[Amendment No. 107 not moved.]
Clause 49 [Offences committed by bodies corporate]:
[Amendment No. 108 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 108A:
After Clause 55, insert the following new clause—
(". Schedule (Restriction on use of answers etc. obtained under compulsion), which amends enactments providing for the use of answers and statements given under compulsion so as to restrict in criminal proceedings their use in evidence against the persons giving them, shall have effect. ").
The noble Lord said: My Lords, the amendments in this group essentially speak for themselves. They derive from the decision of the European Court of Human Rights in the case of Saunders v. United Kingdom on 17th December 1996. Mr. Ernest Saunders had been one of the defendants in the first Guinness trial. He complained that the prosecution at his criminal trial had used statements which he had given under legal compulsion to inspectors appointed under Section 432 of the Companies Act 1985. He said that that was an infringement of his right to a fair trial under Article 6 of the convention. The court concluded that the admission of his statements in those, circumstances meant that he had been deprived of a fair trial and that there had been a violation.
The Government responded with the Guidance Note for Prosecutors, issued by the Attorney-General on 3rd February 1998. He said that the Government would bring forward legislation to implement the judgment when a suitable opportunity arose. A similar assurance was given to the Committee of Ministers in the Government's response. These amendments fulfil that undertaking by amending Section 434(5) of the Companies Act 1985— the point at issue in Mr. Saunders's case— and by amending a number of similar provisions. We thought that we ought to meet the principle of our undertaking by also including such amendments. I beg to move.
Viscount Colville of Culross: My Lords, I recognised this when I saw it, as being Saunders The noble Lord said that a large number of cognate matters have been taken in in the world of commerce, as may be seen. I have not had an opportunity previously to ask the Minister about this, but will he apply his mind to the situation that confronts very many motorists in this country? If they commit a moving traffic offence and the police do not stop them, the owner of the vehicle is required to say who was driving. If he says that he

75
himself was driving, he is, of course, prosecuted; if he fails to say who was driving, he is prosecuted for failing to say who was driving. I think that the relevant provision is Section 172 of the Road Traffic Act 1988. It appears to me that that is on all fours with the self-incrimination which was held by the Strasbourg court to constitute a breach of Article 6(1) both in terms of lack of a fair trial and in terms of presumption of innocence. Are there not other cases on the statute book where such provisions apply? Would it not be wise for the Government to look rather further afield now that the Human Rights Act is coming into force and given that the noble Lord used to advise his clients, in advance of it coming into force, of what would happen to them and of their possible remedies? Could the Government look a little further afield?
Lord Williams of Mostyn: My Lords, I can certainly do that. I am grateful to the noble Viscount for raising that question. I do not think that provisions such as that to which he refers are caught; nor, for instance, is the requirement, on pain of criminal sanction, to provide a sample of breath or blood in breathalyser cases. However, as I have said, I am grateful to the noble Viscount for asking that question, which I shall certainly have researched. The research may be extensive, but, for the moment, I commend the amendment to the House.
On Question, amendment agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 109:
After Clause 55, insert the following new clause—

Chapter VIA
  Use of Defence Statements

    Accused's statements: disclosure
    . — In section 11 of the Criminal Procedure and Investigations Act 1996 (faults in disclosure by accused), after subsection (4) there is inserted—
    "(4A) Except as provided by this section no part of a statement given under sections 5(6) or 6(2) may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused. "").
    The noble Lord said: This amendment seeks to insert a new clause on the use of defence statements— a wholly new matter with regard to this Bill. I have tabled this amendment at the suggestion of the Law Society.
    The Criminal Procedure and Investigations Act 1996 provided for defence statements to be given which were intended to assist with the early identification of issues: the weeding out of cases which should never have come to court because the defendant had a good answer to the charges; to allow the police the opportunity to confirm genuine alibis as soon as possible and to prevent guilty defendants using ambush defences which cannot properly be tested in court. All of those aims are entirely desirable, but none is achieved if the defence statement is inadequate. At the moment, defence statements are thought to be inadequate. I understand that not only the Law Society but, in some respects, the police and the Crown Prosecution Service have expressed concern at different times about the inadequacy of defence
    76
    statements. Apart from damaging the aims which I set out, a further consequence is that the prosecutor is unable to provide adequate secondary disclosure to the defence. The question is why the defence statements are inadequate. I understand that, in the Law Society's view, a significant reason for this state of affairs is that a defence solicitor does not want to run the risk of the prosecutor using concessions made in a defence statement as evidence in support of the prosecution case. At present, it seems that the prosecutor can put the defence statement in evidence as part of the prosecution case. Obviously, that makes solicitors extremely careful when drawing up statements. The Law Society believes— this seems to me to have validity— that the aims of the statements can be met without allowing the prosecutor to use the defence statement as part of the prosecution case. Allowing such a use of a defence statement is an unnecessary dilution of the principle that the Crown has the burden of proving the accused's guilt. It also discourages the giving of adequate defence statements and therefore has an adverse effect on the fairness of the proceedings as a whole. It seemed to me that that argument had sufficient validity to make it worth putting before your Lordships' House so that we could hear the Minister's response. Clearly it is in everybody's interests that the defence statement should be adequate and if they are being deterred from that by the fact that it may be used by the prosecution, then an amendment on the lines suggested would seem to be necessary. I beg to move.
    7.30 p.m.
    Viscount Colville of Culross: My Lords, I hope that the Minister will not accept this amendment. I have seen hundreds of defence statements and the problem with them is not that to which the noble Lord, Lord Cope, referred. He must talk to solicitors, who take these matters extremely seriously. The difficulty is that they are produced by a word processor and contain absolutely no information at all. Therefore anything that would tend to support those who put as little as possible in defence statements would not meet with my approval, and I hope it will not meet with the Government's either.
    The idea is that we should have some idea what the defence is. In most cases that does not happen in defence statements.
    Lord Williams of Mostyn: My Lords, I agree with the noble Viscount and am not inclined to accept the amendment. I understand that the Law Society wants the quality of defence statements improved and that some defence solicitors are afraid that statements may be adduced in evidence in support of the prosecution case. But the noble Viscount is right. One does not simply want a word processor churning out defence statements which not only are of no benefit to the courts but also in many cases are a positive disadvantage to the orderly, efficient and expeditious conduct of court cases.
    It is important, as the noble Viscount said, that defence solicitors should provide adequate statements. A failure to comply for one reason or another may well affect secondary disclosure by the prosecution which

    77
    ought to be made. We are concerned with enforcing a system—the noble Viscount has rightly spoken of this on many occasions—that is not being used and is not being driven in the way intended. This prohibition is much too restrictive. The interests of justice should not be fettered in the way suggested. The admission of defence statements is governed by the normal rules of evidence and the courts' powers to ensure that defendants receive a fair trial, not least by virtue of Section 78 of the Police and Criminal Evidence Act.
    However, there may be some situations where defence statements could pass the test of relevance. It may be rare, but the opportunity should be there. We should not fetter the ability of the court, for instance, to examine the accused's alibi. It is difficult for the prosecution sensibly to deploy its case to a jury without adducing the defence statement. The question of admissibility should not be conditional upon the consent of the accused because, echoing the approach of the noble Viscount, that gives a premium to not producing a proper statement.
    Lord Thomas of Gresford: My Lords, before the noble Lord sits down, I suggest that his officials take a look at the pro forma which is the basis upon which many defence statements are made. It is in the barest skeleton form and if defence statements are to be made use of in this way, then broader directions should be given on the sort of information that is expected.
    Lord Williams of Mostyn: My Lords, I shall certainly have that looked into. It may be that the noble Lord has a good point and, if so, the remedy may be to expand the pro forma but still leave the power of admissibility with the trial judge.
    Lord Cope of Berkeley: My Lords, we are all agreed that the present defence statements are inadequate, particularly if they come duplicated off a word processor. But we are not agreed as to the reasons why they are inadequate. The Law Society's view, as expressed to me, is that part of the inhibition of putting adequate information in them is as I described. However, other people have different views. Clearly the inadequacy of defence statements is a matter to which we will have to return. In the meantime, I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Clause 58 [General interpretation etc. of Part II]:
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 110:
    Page 40, line 38, after ("V") insert ("or subsection (2))").
    The noble Lord said: My Lords, this amendment ensures that subsection (1) of Clause 58 does not affect subsection (2). As currently drafted, it might. I beg to move.
    On Question, amendment agreed to.
    Clause 62 [Minor and consequential amendments, repeals and transitional provisions]:
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 111:
    Page 42, line 24, at end insert—
    ("( ) Schedule (Youth justice: pre-consolidation amendments) (which contains pre-consolidation amendments relating to youth justice) shall have effect. ").
    The noble Lord said: My Lords, in moving Amendment No. 111 I shall speak also to Amendments Nos. 112 to 114 and Amendment No. 124.
    Amendment No. 112 introduces a new Schedule 3A. It is a technical amendment, part of a series relating to the Law Commission's continuing consolidation exercise regarding the powers of criminal courts. Amendments Nos. 111, 113, 114 and 124 are all consequential. We hope to make these changes now so that the consolidation exercise can go on smoothly and help the effective implementation of these policies.
    There are three main areas of amendment: supervision orders in the Children and Young Persons Act 1969; detention and training orders in the Crime and Disorder Act 1998; and reparation and action plan orders from the same Act. They do not alter any of the original policy intensions; they simply clarify the legislation and ensure consistency. I beg to move.
    On Question, amendment agreed to.
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 111A:
    Before Schedule 3, insert the following new schedule—

SCHEDULE

  RESTRICTION ON USE OF ANSWERS ETC. OBTAINED UNDER COMPULSION
  Insurance Companies Act 1982 (c. 50)
  1. The Insurance Companies Act 1982 is amended as follows.
  2. In section 43A (general investigations into insurance companies), after subsection (5) (use of statements made under the section) add—
  "(6) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (7) Subsection (6) above applies to any offence other than—

  (a) an offence under section 71(l)(b) or (3) below;

  (b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath)."

  3. In section 44 (obtaining information and documents from companies), after subsection (5) (use of statements made under the section) insert—
  "(5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (5B) Subsection (5A) above applies to any offence other than—

  (a) an offence under section 71(1)(b), (3) or (4) below;

  (b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath)."

  Companies Act 1985 (c. 6)
  4. The Companies Act 1985 is amended as follows.
  5. In section 434 (production of documents and evidence to inspectors conducting investigations into companies), after subsection (5) (use of answers given to inspectors) insert—
  "(5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the answer may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (5B) Subsection (5A) applies to any offence other than—

  (a) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); or

  (b) an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath)."

  6. In section 447 (production of company documents to Secretary of State), after subsection (8) (use of statements made under the section) insert—
  (8A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (8B) Subsection (8A) applies to any offence other than—

  (a) an offence under subsection (6) or section 451;

  (b) an offence under section 5 of the Perj ury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath). "

  Insolvency Act 1986 (c. 45)
  7.— (1) Section 433 of the Insolvency Act 1986 (admissibility in evidence of statements of affairs etc.) is amended as follows.
  (2) That section is renumbered as subsection (1) of that section.
  (3) After that subsection insert—
  "(2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (3) Subsection (2) applies to any offence other than—

  (a) an offence under section 22(6), 47(6), 48(8), 66(6), 67(8), 95(8), 98(6), 99(3)(a), 131(7), 192(2), 208(1)(a) or (d) or (2), 210, 235(5), 353(1), 354(1)(b) or (3) or 356(1) or (2)(a) or (b) or paragraph 4(3)(a) of Schedule 7;

  (b) an offence which is—

  (i) created by rules made under this Act, and

  (ii) designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;

  (c) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); or

  (d) an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).

  (4) Regulations under subsection (3)(b)(ii) shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament."
  Company Directors Disqualification Act 1986 (c. 46)
  8.— (1) Section 20 of the Company Directors Disqualification Act 986 (admissibility in evidence of statements) is amended as follows.
  (2) That section is renumbered as subsection (1) of that section.
  (3) After that subsection insert—
  "(2) However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (3) Subsection (2) applies to any offence other than—

  (a) an offence which is—

  (i) created by rules made for the purposes of this Act under the Insolvency Act, and

  (ii) designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;

  (b) an offence under section 5 of the Perjury Act 1911 (false statements or made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath).

  (4) Regulations under subsection (3)(a)(ii) shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament."
  Building Societies Act 1986 (c. 53)
  9. In section 57 of the Building Societies Act 1986 (use of answers given to inspectors conducting investigations into building societies), after subsection (5) (use of answers given to inspectors) insert—
  "(5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating (o the answer may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (5B) Subsection (5A) above applies to any offence other than—

  (a) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); or

  (b) an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath). "

  Financial Services Act 1986(c. 60)
  10. The Financial Services Act 1986 is amended as follows.
  11. In section 105 (powers of Secretary of State to investigate affairs of person carrying on investment business), after subsection (5) (use of statements made under the section) insert—
  "(5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (5B) Subsection (5A) above applies to any offence other than—

  (a) an offence under subsection (10) or section 200(1) below;

  (b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath). "

  12. In section 177 (investigations into insider dealing), after subsection (6) (use of statements made under the section) insert—
  "(6A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (6B) Subsection (6A) above applies to any offence other than—

  (a) an offence under section 200(1) below; or

  (b) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); or

  (c) an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath). "

  Banking Act 1987 (c. 22)
  13. The Banking Act 1987 is amended as follows.
  14. In section 39 (power of Financial Services Authority to obtain information etc. from authorised institutions), after subsection (12) (use of statements made under the section) insert—
  "(12A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (12B) Subsection (12A) above applies to any offence other than—

  (a) an offence under subsection (11) above;

  (b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath). "

  15. In section 41 (investigations into authorised institutions by Financial Services Authority), after subsection (10) (use of statements made under the section) insert—
  "(10A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (10B) Subsection (10A) above applies to any offence other than—

  (a) an offence under subsection (9)(c) above;

  (b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath)."

  16. In section 42 (investigations by Financial Services Authority into suspected contraventions of sections 3 and 35), after subsection (5) (use of statements made under the section) insert—
  "(5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (5B) Subsection (5A) above applies to any offence other than—

  (a) an offence under subsection (4) above; or

  (b) an offence under section 5 of the Perjury Act 1911 (false statements made otherwise than on oath); or

  (c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath). "

  Criminal Justice Act 1987(c. 38)
  17. After subsection (8) of section 2 of the Criminal Justice Act 1987 (use of statements made in response to requirements imposed by the Director of the Serious Fraud Office) insert—
  "(8AA) However, the statement may not be used against that person by virtue of paragraph (b) of subsection (8) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution. "").
  Companies Act 1989(c. 40)
  18. In section 83 (powers exercisable for purposes of assisting an overseas regulatory authority), after subsection (6) (use of statements made under the section) insert—
  "(6A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (6B) Subsection (6A) applies to any offence other than—

  (a) an offence under section 85; or

  (b) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); or

  (c) an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath). "

  Friendly Societies Act 1992(c. 40)
  19. In section 67 of the Friendly Societies Act 1992 (supplementary provisions about inspections carried out at the behest of the Friendly Societies Commission), after subsection (5) (use of statements made under the section) insert—
  "(5A) However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

  (a) no evidence relating to the statement may be adduced, and

  (b) no question relating to it may be asked,

  by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
  (5B) Subsection (5A) above applies to any offence other than—

  (a) an offence under section 2 or 5 of the Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath); or

  (b) an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath). "

  Criminal Law(Consolidation) (Scotland) Act 1995 (c. 39)
  20. After subsection (5) of section 28 of the Criminal Law (Consolidation) (Scotland) Act 1995 (use of statements made in response to requirements imposed by a nominated officer) insert—
  "(5A) However, the statement may not be used against that person by virtue of paragraph (b) of subsection (5) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution. "").
  On Question, amendment agreed to.
  Schedule 3 [Minor and consequential amendments]:
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 111B:
  Page 55, line 37, at end insert—
  ("Children and Young Persons Act 1933(c. 12)
  —(1) The Children and Young Persons Act 1933 has effect subject to the following amendments.
  (2) In section 37(1) (power to clear court, where child or young person giving evidence, of persons other than bona fide representatives of newspapers or news agencies), for "newspaper or news agency" substitute "news gathering or reporting organisation".
  (3) In section 47(2)(c) (bona fide representatives of newspapers or news agencies entitled to be present at sitting of youth court), for "newspapers or news agencies" substitute "news gathering or reporting organisations". ").
  On Question, amendment agreed to.
  Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 112:
  After Schedule 3, insert the following new schedule—

  SCHEDULE

    Youth justice: pre-consolidation amendments
    Children and Young Persons Act 1969(c. 54)
    1. The Children and Young Persons Act 1969 has effect subject to the following amendments.
    2. In section 12A (requirements that may be included in supervision orders), at the end add—
    "(14) In this section "make reparation" means make reparation for the offence otherwise than by the payment of compensation."
    3.—(1) Section 15 (variation and discharge of supervision orders) is amended as follows.
    (2) In subsection (3)(b) (magistrates' powers of re-sentence on breach of supervision order), for "relevant court" substitute "magistrates' court".
    (3) After subsection (8) insert—
    "(8A) Where a supervision order has been made on appeal, for the purposes of subsection (3) above it shall be deemed—

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

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

    and, in relation to a supervision order made on appeal, subsection (3)(b) above shall have effect as if the words "if the order had not been made" were omitted and subsection (5) above shall have effect as if the words "if it had not made the order" were omitted. "
    4. —(1) Section 16 (provisions supplementary to section 15) is amended as follows.

    (2) In subsection (3A), for "(3C)" substitute "(4A)".

    (3) Omit subsections (3B) and (3C).

    (4) In subsection (4), at the beginning insert "Subject to subsection (4A) of this section,".

    (5) After subsection (4) insert—

    "(4A) Where a supervised person has attained the age of eighteen at the time when he is brought before a justice under subsection (3) of this section, or has attained that age at a time when (apart from this subsection) a youth court could exercise its powers under subsection (4) of this section in respect of him, he shall not be remanded to local authority accommodation but may instead be remanded—

    (a) to a remand centre, if the justice or youth court has been notified that such a centre is available for the reception of persons under this subsection; or

    (b) to a prison, if the justice or youth court has not been so notified.

    (4B) A court or justice remanding a person to local authority accommodation under this section shall designate, as the authority who are to receive him, the authority named in the supervision order."
    Crime and Disorder Act 1998(c. 37)
    5. The Crime and Disorder Act 1998 has effect subject to the following amendments.
    6. —(1) Section 74 (duties and powers of court in relation to detention and training orders) is amended as follows.
    (2) For subsection (2) substitute—
    "(2) Subject to subsections (3) and (4A) below, a court making a detention and training order may order that its term shall commence on the expiration of the term of any other detention and training order made by that or any other court."
    (3) After subsection (4) insert—
    "(4A) A court making a detention and training order shall not order that its term shall commence on the expiration of the term of a detention and training order under which the period of supervision has already begun (under section 76(1) below).
    (4B) Where a detention and training order ("the new order") is made in respect of an offender who is subject to a detention and training order under which the period of supervision has begun ("the old order"), the old order shall be disregarded in determining—

    (a) for the purposes of subsection (3) above whether the effect of the new order would be that the offender
    86
    would be subject to detention and training orders for a term which exceeds 24 months; and

    (b) for the purposes of subsection (4) above whether the term of the detention and training orders to which the offender would (apart from that subsection) be subject exceeds 24 months. "

    (4) After subsection (5) insert—
    "(5A) Where a court proposes to make detention and training orders in respect of an offender for two or more offences—

    (a) subsection (5) above shall not apply, but

    (b) in determining the total term of the detention and training orders it proposes to make in respect of the offender, the court shall take account of the total period for which he has been remanded in custody in connection with any of those offences, or any other offence the charge for which was founded on the same facts or evidence.

    (5B) Once a period of remand has, under subsection (5) or (5A) above, been taken account of in relation to a detention and training order made in respect of an offender for any offence or offences, it shall not subsequently be taken account of (under either of those subsections) in relation to such an order made in respect of the offender for any other offence or offences. "
    (5) In subsection (6), for "The reference in subsection (5) above" substitute "Any reference in subsection (5) or (5A) above".
    (6) In subsection (8), omit "this section or".
    7 In section 75(5) (alteration of release of offender subject to detention and training order) for "the youth court" substitute "a youth court".
    8. In section 77 (detention and training orders: breach of supervision requirements) after subsection (4) insert—
    "(5) An offender may appeal to the Crown Court against any order made under subsection (3)(a) or (b) above. "
    9. In section 79 (interaction of detention and training order with sentences of detention), after subsection (2) insert—
    "(2A) Subsection (l)(a) above has effect subject lo section 78(3)(a) above and subsection (2)(a) above has effect subject to section 40(4)(b) of the 1991 Act. "
    10.—(1) Paragraph 3 of Schedule 5 (failure to comply with reparation and action plan orders) is amended as follows.
    (2) In sub-paragraph (2)(b), for "youth court" substitute "magistrates' court".
    (3) Omit sub-paragraph (3).
    (4) After sub-paragraph (8) insert—
    "(9) Where a reparation order or action plan order has been made on appeal, for the purposes of this paragraph it shall be deemed—

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

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

    and, in relation to a reparation order or action plan order made on appeal, sub-paragraph (2)(b) above shall have effect as if the words "if the order had not been made" were omitted and sub-paragraph (5) above shall have effect as if the words "if it had not made the order" were omitted. "
    11. —(1) Paragraph 4 of that Schedule (presence of offender in court, remands, etc.) is amended as follows.
    (2) In sub-paragraph (5)(b), for "(6)" substitute "7A)"
    (3) Omit sub-paragraph (6).
    (4) In sub-paragraph (7), at the beginning insert "Subject to sub-paragraph (7A) below,".
    (5) After sub-paragraph (7) insert—
    "(7A) Where the offender is aged 18 or over at the time when he is brought before a youth court other than the appropriate court under sub-paragraph (4) above, or is aged 18 or over at a time when (apart from this sub-paragraph) the appropriate court could exercise its powers under sub-paragraph (7) above in respect of him, he shall not be remanded to local authority accommodation but may instead be remanded—

    (a) to a remand centre, if the court has been notified that such a centre is available for the reception of persons under this sub-paragraph; or

    (b) to a prison, if it has not been so notified. "

    12. Omit paragraph 5(6) of that Schedule.").
    On Question, amendment agreed to.
    Schedule 4 [Repeals]:
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 113 and 114:
    Page 60, line 11, at end insert—

    ("1969 c. 54.

    Children and Young Section 16(3B) and Persons Act 1969.

    (3C).")

    Page 61, line 38, at end insert—

    ("1998 c. 37.

    Crime and Disorder Act 1998.

    In section 74(8), the words "this section or".

    In Schedule 5, paragraphs 3(3), 4(6) and 5(6).")

    The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 113 and 114 en bloc. I beg to move.
    On Question, amendments agreed to.
    Schedule 5 [Transitional provisions and savings]:
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 115:
    Page 62, line 9, after first ("proceedings"") insert ("(except in paragraph 3)").
    The noble Lord said: My Lords, in moving Amendment No. 115 I shall speak also to Amendments Nos. 116 to 119, 121 and 123.
    We laid these amendments relating to transitional provisions for the special measures provided in the Bill. We are aware that not every measure is likely to be made available on the same date to every eligible witness in every court area in the magistrates' court as well as the Crown Court. Implementation plans are being considered by the project groups established under the supervision of the interdepartmental steering group, which is devising an integrated implementation programme for all 78 recommendations of the Speaking Up for Justice report. Advice on this programme is likely to be with the Minister by the end of April.
    We do not want to lead witnesses to believe that they will benefit from the new measures in Chapter I of Part II of the Bill, especially before a training strategy has been implemented, guidance 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 provide all the flexibility we may need.
    Until full implementation we will have to continue to rely on existing statutory provisions such as Sections 32 and 32A of the Criminal Justice Act 1991—that is, video and live link evidence from children. We will also continue to rely on the courts' common law powers to arrange for such measures as the taking off of wigs and gowns, screens, sign language, interpreters and signboards. The amendments ensure that initially the new arrangements and the old will need to run side by side.
    The amendments also provide for the situation when a notification that a measure is available to a court is withdrawn by the Secretary of State. The amendments provide 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. We also provide for making rule and order-making powers in both parts of the Bill before commencement of the substantive provisions to which they relate. That is an administrative device but is needed for measured implementation of the Bill's substantive provisions when the time comes. I beg to move.
    On Question, amendment agreed to.
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 116 to 119:
    Page 62, line 30, leave out ("commencement date for Chapter I of Part II") and insert ("specified date").
    Page 62, line 39, leave out ("commencement date for Chapter I of Part II") and insert ("specified date").
    Page 62, line 44, leave out ("that commencement") and insert ("the specified").
    Page 62, line 45, at end insert—
    ("(4) In this paragraph—

    (a) "continuing proceedings" means proceedings instituted before the specified date;

    (b) "the specified date", in relation to a witness in any proceedings, means such date as may be specified by the Secretary of State in a notice given to the court in question under section 18(2), where the date is expressed to apply—

    (i) for the purposes of this paragraph, and

    (ii) in relation to any description of witnesses and proceedings within which the witness and the proceedings fall. ").

    On Question, amendments agreed to.
    [Amendment No. 120 not moved.]
    Clause 63 [Short title, commencement and extent]:
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 121:
    Page 42, line 30, leave out ("Apart from section 61 and this section, ") and insert ("Subject to subsection (2A), ").
    On Question, amendment agreed to.
    Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 122:
    Page 42, line 32, leave out ("or") and insert ("and with respect to").
    The noble Viscount said: My Lords, the noble Lord, Lord Carter, need not be alarmed about his timetable, but I want to return to the question of cross-examination and re-examination on video recordings.
    The Minister just said that various items in Chapter I of Part II will be introduced gradually. There is a particular difficulty about Clause 27(2), where there is an elaborate requirement for the presence of people during the course of any cross-examination and re-examination that will be pre-recorded and used in court. At an earlier stage in the Bill, the Minister said that that would not cause any great difficulty because there were lots of police stations where that was done. I made inquiries because the court in north-west London where I sit was a pilot for the admissibility of evidence-in-chief by children in the form of video recordings under Section 32 of the Criminal Justice Act 1988.
    I do not know whether this is typical but in north-west London, the police have two or three suites available where they can record the evidence of a vulnerable witness. I extend that term beyond children because that is what the Bill is about. The facility consists of a room equipped with a video recorder into which goes the witness and the skilled interviewers—who by this time have been well trained, at least as regards children. There is another room into which the video signal goes and where sits a policeman or somebody else in charge of matters as a safeguard—to see that nothing obviously goes amiss during the examination-in-chief or, technically, the taking of the interview.
    There is no contact between the room where the interview is taking place and the overseer in the further room. In some cases an earpiece is available but frequently is not used because it makes the witness suspicious or nervous. That is the existing system and, in my experience, it produces high-quality videotapes. They may have to be edited but the raw material is there. That system is not susceptible to adaptation, to allow all the people to take part in an exercise under Clause 27(2). For that, one needs the facilities of a videolink court. Such a court has a room in which the witness sits, connected to the court by a videolink. In that room there can be a companion, an accompanier, somebody to look after the witness and so on.
    In the court itself there are at least four videos— one each for the judge, defence counsel, prosecution counsel and jury. One for the jury will not be required under Clause 27(2). If the judge or magistrate is to control matters, he must be able to switch on and off the various videos. If, for instance, it becomes apparent that the vulnerable witness is becoming tired or there is some other reason for an interruption, a button can be pressed and the videolink to the witness is turned off. Then the judge or magistrate can talk to the other people in the court and sort the matter out. Similarly, when it comes to cross-examination and re-examination, the necessary buttons are pressed. There is a video recorder as well as a receiver at the place of each counsel so that the witness can see who is asking the questions. In fact, the witness can be told by the judge or magistrate in advance who the questioner will be.
    That system involves complicated and elaborate equipment and, as I well know, is not that easy to use. One has to get it right and become accustomed to it. Is the Minister saying that police stations will be equipped in that way into which the entire court, presumably as a result of one of its own directions, may move to undertake the cross-examination and re-examination—so that a video recording can be produced under the control of the judge or magistrate for use in court? If so, when will that arrangement be in place and how much will it cost? In my part of north-west London at least, such a system does not exist. This part of the Bill should not be brought into effect, even on a pilot basis, until the facilities have been made available. I tabled the amendment simply to ask the Minister to explain the situation and the Government's proposals for putting the provision in place. I beg to move.
    7.45 p.m.
    Lord Thomas of Gresford: My Lords, I congratulate the noble Viscount on raising the practicalities of the proposals for video cross-examination. I had always assumed that, although the interview might take place in the police station, which would form the evidence-in-chief, there would undoubtedly have to be a move to the court for the purposes of recording the cross-examination. I cannot see that being done any other way.
    In earlier discussions, it was put to me that the problem revolved around a witness knowing that he or she had to go to court on a particular day and be available for cross-examination as if it were by live videolink before a jury. My response was, "I don't see the difference". If the court building has to be used for a recording, the witness giving evidence will know that there is a judge, counsel for the prosecution and defence, and presumably the defendant at the other end. The circumstances are exactly the same for that witness in another room as though the jury or a magistrate were present. Why have pre-recording? It cannot make any difference to the stress and strain placed upon the witness. The same buildings, for practical reasons, will have to be used.
    Lord Williams of Mostyn: My Lords, not for the first time I am most grateful to the noble Viscount for the practical questions that he has raised. I believe that the noble Lord, Lord Thomas of Gresford, will forgive me for observing that the thrust of his points relates to an earlier discussion. Therefore, perhaps I may concentrate on the noble Viscount's amendment.
    As this is a special measure, it would only be capable of being introduced in accordance with Clause 18; in other words, it cannot come into force: so that it is available to the court until the court has; been notified by the Secretary of State that it is in fact available. We can implement by area, by measure or even by type of witness. Indeed, it may be a combination of those factors. As I said, the Secretary of State has to notify the court that it can make relevant arrangement measures available by virtue of Clause 18.

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    I shall deal now with one or two of the details raised by the noble Viscount. We have the steering group which is advising on how most of Part II should be implemented. It is looking at various options for staged implementation, bearing in mind many of the points—probably all of them—made by the noble Viscount. For example, how can you bring the measures into force? The noble Viscount rightly said that one needs training in the use of the equipment and one needs guidance about that use. That may mean rules of court. Moreover—and here I revert to a point made by the noble Lord, Lord Thomas and by the noble Viscount—accommodation and equipment will need to be found.
    The noble Viscount is quite right to say that some of the measures will need more equipment, which will need to be purchased. Video recorded evidence is already produced and shown in court in respect of child witnesses. I agree with the noble Viscount's theme: we will need to have an audit of existing equipment before we can determine what additional facilities are needed to implement this legislation in a phased and staged way. The group is examining these problems. I am not attempting to minimise them because I well recognise the force of what the noble Viscount said. If, as he indicated, the purpose of his amendment was to flag up such concerns, I can only repeat my gratitude to him. If I have any further particulars as the weeks develop, I shall write to the noble Viscount, sending copies to interested noble Lords in the usual way. I shall also place a copy of the letter in the Library of the House.
    Viscount Colville of Culross: My Lords, I am very glad to have received that rather full reply. Plainly the Minister and his advisors have absorbed the necessity to have the equipment and the training. The only comment that I would add is this. If it turns out, as the noble Lord, Lord Thomas of Gresford, indicated, that this will be able to be done only in the court itself—because it will not be worth while installing facilities for the comparatively limited number of occasions that it will be used anywhere else—that will have to be fitted into the timetable of the court centre.
    The video room or the video court in a court centre is a very valued commodity. It is used on a strict basis for the cases that need it. It is very much used and very much desired. The listing office in any court which has one will find that it is bombarded with cases that will have to be fixed in order to use that particular equipment. If, in addition to the existing use that is made of it, we are to have the extra demands envisaged by Clause 18, I believe that the Court Services Agency, as well as everyone else, should be fully engaged in the consultations; otherwise, we shall only find that the whole matter comes to grief because of the lack of ability to use the court facilities. I shall leave the matter with the Minister. Indeed, he has entirely taken my point.
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    Nevertheless, there is a great deal of work to be done before this particular special measure can be implemented. I beg leave to withdraw the amendment.
    Amendment, by leave, withdrawn.
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 123:
    Page 42, line 32, at end insert—
    ("(2A) The following provisions come into force on the day on which this Act is passed—

    (a) section 6(4);

    (b) the provisions of Chapters I to IV of Part II for the purpose only of the exercise of any power to make rules of court;

    (c) section 39(1);

    (d) sections 55(5) and 56(2) for the purpose only of the exercise of any power to make an order;

    (e) section 56(1) and (3), sections 57 to 61 and this section. ").

    On Question, amendment agreed to.
    In the Title:
    Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 124:
    Line 4, after ("proceedings;") insert ("to make pre-consolidation amendments relating to youth justice;").
    On Question, amendment agreed to.

  Business
  Baroness Ramsay of Cartvale: My Lords, as consideration on this Bill has now been concluded, the Unstarred Question is no longer restricted to the one hour which would have been allowed during the dinner break. Therefore, the one-and-a-half-hour limit now applies. That does not affect the time allowed for my noble friends Lady Uddin and Lady Amos, but it increases the time available for all other speakers from three to five minutes.

  World Poverty Elimination: Role of Women
  7.54 p.m.
  Baroness Uddin Baroness Uddin rose to ask Her Majesty's Government what action they have taken to strengthen the role of women in the elimination of world poverty.
  The noble Baroness said: My Lords, I must confess to a feeling of extreme pleasure at being able to open this debate to mark the occasion of International Women's Day, particularly on the eve of the new millennium. I look forward to hearing the eminent speakers on the list, especially the maiden contribution of the noble Lord, Lord Patel.
  The UN estimates that up to 70 per cent. of the world's poor are female. Gender discrimination is the world's most widespread form of social exclusion. Women's inequality is an obstacle to development and a major cause of social injustice. Women are frequently the victims of violence, and they are very poorly

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  represented in positions of political power. This is the backdrop to our lot in the world, be it in Britain or Bangladesh.
  To accord proper justice to the work of worldwide development is a task well beyond one woman. Therefore, with your Lordships' indulgence, I wish very much to focus on one small aspect of what is a big agenda and look specifically at some of the development programmes and their impact on Bangladesh.
  The vanguard of the Bengali nationalist movement was indebted to and dependent upon the ongoing support of the international community for bringing it to victory. NGOs emerged during this period to provide relief and rehabilitation as well as during the floods, famine and cyclone devastation following the violent struggle for independence. Over the next two decades they gained influence for organising the rural disenfranchised and the poor and for disseminating both social and economic resources to a dispersed population.
  The early programmes were initiated to reduce fertility, provide literacy and skills training for women, and basically to work alongside the government in meeting those goals. Changes in policies of aid assistance have triggered a new demand, based on export-led growth thus leading to the creation of an industrial working class. In that context, NGO training schemes have provided important institutional resources in building a class of industrial women workers by providing training in sewing and handicraft production. The other effect has been to provide a venue for women and/or their daughters to enter the garment industry in the emerging export-producing enclaves of the capital and the port area. Women now represent more than 90 per cent. of the workforce of the garment industry in Bangladesh.
  Since the early 1980s, much of the development assistance has concentrated on denationalisation and the development of the private sector in the shift away from rural co-operatives and village development programmes to a new pattern of provision, assisting individualised credit and promoting self-reliance. Hence the birth of the central theme and the success of the internationally renowned Grameen Bank project. Micro-enterprises have provided a point of entry from which a number of visible changes have occurred without appearing to threaten the existing roles of women and family structures.
  Those projects afford and create innovative opportunities to interact within a group and to initiate educational programmes as well as pursue other dimensions of social change. In particular, women—and this will be no surprise to your Lordships—have proven to be efficient managers of micro-credit programmes. Today in Bangladesh women are the recipients of over 75 per cent, of the credit by NGOs and they have maintained an 85 per cent, loan repayment rate.
  The development of women's programmes for literacy, skills training and provision for credit as well as population planning in Bangladesh is now well established. Currently, the activities of NGOs are acknowledged to have played a crucial role in providing an environment for the construction of the current
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  female labour force. Today women are an increasing force among the entrepreneurs in small and cottage industries and in the export of garment manufacturing as well as taking part in public rallies.
  Another example of what is happening is the Bangladesh Rural Advancement Committee—shortly put, BRAC—which is probably the world's largest indigenous non-governmental development organisation. It has acquired worldwide status among health professionals for its path-breaking nationwide programme to teach oral rehydration for the treatment of diarrhoea to 13 million women in the 68, 000 villages of Bangladesh. That is a staggering figure. Its experimentation in primary healthcare is also well known. The measure of its success was apparent during the recent flood disaster when it reduced the numbers of those struck by diarrhoea and other fatal diseases. BRAC has also acquired an international reputation for its innovative and successful approach to primary education for the poorest rural children, in particular girls.
  Bangladesh is emerging as an increasingly confident country in the south-east Asia region with steady economic growth and continuous reform of its social infrastructure. Equally impressive is its response to political representation, or lack of it. In this context the alarm at the absence of women in political and public life in the early 1970s received a prompt political response in reserving—this was one of the first world quota systems for women in public life—10 per cent, of parliamentary seats for women. This practice is now being improved to ensure all political parties are representative of women right across their structures. The Government also have a policy to support free education for all girls up to secondary level.
  Of course all international intervention has its critics and neither the Department for International Development nor local NGOs are free from them. When I last visited Bangladesh and met representatives of various small women's organisations I was told in no uncertain terms that indigenous women's groups are increasingly questioning the accountability and organisational legitimacy of externally funded NGOs. This is a positive development and demonstrates the confidence which now exists in the country. Many international NGOs can rightly be proud of the current state of women's development.
  In this context the experience of Oxfam's model of working needs to be highlighted. Oxfam in Bangladesh has developed a new way to practise what it preaches with regard to gender and provides support to partners to integrate gender issues into their management structures as well as their programmes. It has helped to set up and resource a forum for women in management positions in partner organisations in a way that breaks new ground.
  It is not just an international duty but a moral obligation on every organisation and NGO to ensure that, whether it is a question of empowerment or social engineering, it is done with the consent and involvement of women at grassroots level. Many initiatives focus on educating women, often from a western perception of empowerment. Creating awareness through education is

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  not sufficient to achieve social empowerment. Women's economic vulnerability is at the centre of their powerlessness, and improvement in their economic status has a positive impact on other dimensions of empowerment. The current British annual allocation of assistance to Bangladesh is approximately £40 million a year. If we are to examine what is happening to that money and what is happening to our sisterhood globally, we can cite Bangladesh as a good example of what can be achieved and what we can be proud of.
  The emancipation of women is an integral part of social progress; it is not just a women's issue. I pay homage to those whose relentless effort and vigour have ensured our freedom in this century and our standing in society today. DfID's commitment to women's equality is clear in the White Paper. It is a commitment that I hope we can all support and endorse. It states that the development approach is based on principles of human rights and social justice and that poverty cannot be estimated until men and women have equal access to the resources and services necessary to achieve their individual potential and fulfil their obligations to household, community, society, and more importantly— this is my point—to themselves.
  I know that we have a long way to go. I conclude by asking my noble friend the Minister to respond to the following questions. Can my noble friend tell the House what specific measures DfID is taking to encourage women to participate in political and public life? Will my noble friend assure the House that the department is monitoring the distribution of aid to Bangladesh to ensure that it is distributed widely and is not concentrated solely on the area surrounding the capital? Will my noble friend perhaps write to me on the proportion of aid programmes that are based in or distributed to the Sylhet region?
  8.4 p.m.
  Lord Patel: My Lords, I am privileged to have this opportunity to speak in your Lordships' House for the first time, and for this I beg your indulgence. First of all, I thank all your Lordships, members of the administration and the doorkeepers for the warm welcome I have had.
  As has already been mentioned, today is International Women's Day, and taking part in a panel discussion on the theme of equality for women, the Secretary-General of the United Nations, Dr. Kofi Annan, and the First Lady of the United States of America, Hillary Rodham Clinton, called for renewed efforts to promote women's rights as human rights. Among the issues they identified was equal opportunity to healthcare for all women.
  For over 30 years now, I, as an obstetrician, have tried to improve women's health, not only in our country but internationally through my association with the International Federation of Obstetrics and Gynaecology. Over 500, 000 women—one every minute—die from complications of pregnancy every year; tens of millions more suffer long-term severe disability and hundreds of millions more suffer some form of disability. This appalling mortality and morbidity—mostly in
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  developing countries—from easily treatable causes, affects family, society and nation, and is a major cause of poverty. Complications of pregnancy account for 18 per cent. of the disease burden in women of childbearing age.
  Ms. Ann Tinker of the Human Development Network of the World Bank clearly stated why policy makers and others should invest in safe motherhood programmes. They are cost-effective and not only help women, their families and society, but will help to alleviate poverty. WHO and the World Bank estimate that the cost of a standard package of maternal and child health service will be three dollars per person per year.
  Successive British governments, and DfTD now, have supported safe motherhood programmes—I have been involved in some of these—in many parts of the world and these have been examples for other countries to follow. These programmes not only help to reduce maternal mortality but improve family health and reduce poverty. Reproduction and sexual health is a right for both men and women, but there is a need to recognise the reproductive rights of women as human rights.
  The education of girls up to a certain standard is one of the ways to empower women to exercise these rights. There is a significant relation between the level of education of girls and the causes of poverty, population growth, family size and maternal and infant mortality. Helping to support and develop educational programmes in developing countries directed towards girls would reduce poverty levels and ensure a greater involvement of women in decision making subsequently.
  My instructions today were to stick to time and be non-controversial. I hope that today I have been both, but I do not always promise to be the latter in the future.
  8.10 p.m.
  Baroness Goudie: My Lords, it gives me great pleasure to congratulate the noble Lord, Lord Patel, on his speech. I look forward to hearing from him and to him joining with us in debates in the House. I know about his work in Dundee and in the World Health Organisation. It gives me great pleasure to congratulate him.
  I should like to thank my noble friend Baroness Uddin for instigating this very important debate on the anniversary of International Women's Day. In 1857 the women who worked in appalling conditions in the garment and textile factories marched through New York to demand better wages and improved working conditions, a march which ended in violent struggles with the police and was to set alight the women's rights campaign in the United States. In Europe this day was celebrated for the first time in 1911, with rallies in many countries attracting more than a million people.
  International Women's Day was first celebrated in the United Kingdom in the year of the General Strike and was officially recognised by the United Nations in 1977. The United Nations decade for women helped focus attention on women's issues internationally. Countries in Africa and Latin America then joined in and the number of women involved worldwide increased.

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  Women make up more of the world's poor than men. Often their work is unrecognised and unpaid. They rarely have control over assets such as land. This means that they cannot become economically independent and it makes them particularly vulnerable in widowhood and old age. Poor women find it particularly difficult to obtain credit, despite having a better track record than men in repaying loans. Credit programmes specifically for women have recently been developed in Bangladesh, India, Kenya and Swaziland.
  The Department for International Development is supporting a group of non-governmental organisations which is working with the Vietnamese government to reduce poverty in the Ha Tinh province. The programme includes a scheme for increasing women's access to credit. In East Africa, DfID is supporting an organisation, the Kenyan Women's Finance Trust, providing credit and other services to poor women. It is making financial services available to thousands of poor rural women in western Kenya. DfID is providing technical assistance to a Tanzanian self-help company, which enables poor women to lease essential equipment to start up small enterprises such as dressmaking, tailoring, office services and retail food services.
  I am proud of this Government's commitment to women and in particular in strengthening the role of women in eliminating world poverty. Yesterday, Sunday 7th March, marked 300 days until the new millennium. The Chancellor has announced the millennium target: the debt relief of £50 billion to the world's poorest countries by the end of 2000. I hope and believe that the Government will be able to lead the nations of the world to eliminate this debt. This has increased the overseas aid budget by the largest amount ever, and for the first time in two decades, after years of that budget declining as a percentage of our national income.
  I look forward to the day when more women across the world will be taking the lead in government and in civil societies. International Women's Day plays an important role in reminding us of the issues affecting the women of the world. But this is but one day out of 365. The issues we discuss today must not be forgotten tomorrow, because the women in poverty today will still be in poverty tomorrow. We must ensure that our Government continue to work to improve the position of women to fight against poverty and to persuade other nations to redouble their efforts in this fight.
  8.14 p.m.
  The Lord Bishop of Oxford: My Lords, in the short time available I should like to stress three points. Before I do so, I should like to say how good it was to hear the noble Lord, Lord Patel, and to say how much we look forward to drawing on his experience in future debates in this House.
  The first point I should like to emphasise is the extent of the problem that is faced. Despite the Government's public commitment to gender equality and to recognition of women's and girl's rights, in developing countries female wages are still only 75 per cent. of male wages, 60 per cent. more women than men are still illiterate, and female primary school enrolment is still
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  13 per cent. lower than male enrolment. Although its forms differ between rural and urban contexts, and according to the society in question, women's disadvantage remains a constant throughout the developing world. There is still a huge problem to be tackled.
  Secondly, I should like to emphasise the valuable role that is being played by churches and NGOs in strengthening the role of women. At the Lambeth Conference last year about 700 bishops' wives were present, the majority from the developing world. They were not just there for the ride. In many developing countries the wives of bishops have a key role as leaders in their own right. So it was appropriate that at Lambeth they had their own carefully organised programme. Part of their leadership role is exercised through their presidency of their diocesan Mothers Union. In this country, mention of the Mothers Union can sometimes raise a laugh. But a country like Nigeria now has more practising Anglicans than the Church of England and the Episcopal Church in the United States put together. There the Mothers Union plays a crucial role in empowering and educating women in literally thousands of local communities.
  Then there is the role of all NGOs, characterised by their long-term commitment to strengthening the role of women and their comparative advantage in relation to governments in reaching the poorest and weakest people in society and, in particular, hearing the women's voices among them. It was particularly good to hear the stress which the noble Baroness, Lady Uddin—to whom we are all very grateful for initiating the debate, put upon the particular role of NGOs in Bangladesh. Perhaps I may emphasise that most NGOs these days—I think of Christian Aid, of which I am privileged to be a board memberwork through local partners. Therefore they can be sensitive to all the nuances of properly empowering local groups according to their lights rather than western imposed lights. I very much hope that the Government will bear in mind the particularly valuable role that NGOs can play, and are already playing, in this area.
  Finally, I should like to give an example of what is possible. As part of the Anglican Peace and Justice Network, I paid a visit to the south of Brazil. There the church is actively helping the rural landless poor and is trying to create sustainable life in the countryside for some of the 4 million landless people so that they do not merely migrate to the rubbish dumps on the edge of the big cities. We visited a group of 30 families who had erected some simple shacks on open land. As we arrived, they came over to visit us in procession, singing a simple religious song and giving us each a posy made from flowers from the heath. The dirt floors of their simple shacks were brushed, their few pots were polished and their clothes were washed with home made soap. One hut had recently burned down with the loss of the family's few possessions. The other families had rallied round and shared the little that they had. Although this group of families had now acquired some land, some seed and a few cows, they still struggled in solidarity with the other millions of rural landless poor in the movement, a good few of whom have been shot

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  dead in the struggle simply to live. What came across above all was the dignity of this group of families, their moral and spiritual strength and their joy. Their leader, inspirer and spokesperson was a women in her early thirties. I shall never forget her.
  That pattern can increasingly become a reality in the developing world if we are truly serious about righting the present imbalances.
  8.20 p.m.
  Lord Ponsonby of Shulbrede: My Lords, I, too, thank my noble friend Lady Uddin for initiating this important debate. I wish also to congratulate the noble Lord, Lord Patel, on his superb maiden speech. I was particularly interested in his comments on safe motherhood programmes, in which I have some personal interest.
  I received briefing for this debate from a number of NGOs, in particular from One World Action. They all make broadly similar points to the Government and to DfID. Perhaps I may repeat their three main points.
  The first relates to mainstreaming gender analysis throughout all development co-operation, from project or programme conception through to monitoring and evaluation and throughout other government ministries. The second point made by all the NGOs related to fostering women's participation in local decision-making and in national and international politics. The key to that lies in improved education and training opportunities. That point was made by the noble Lord, Lord Patel. The third point made by all NGOs was that DfID should concentrate its efforts on supporting independent women's organisations and institution building.
  A huge amount of work has been done on this issue by DfID, and also by international organisations such as the OECD, the UN, the EU and others. A stream of policy statements have come from those institutions. So why, in the light of all this work, is poverty increasing, and in particular women's poverty?
  When I sat down to write my remarks for this debate, I wanted to find a stirring example of success. All four speakers have given good examples of success in the types of projects that DfID and other organisations have undertaken. But I would argue that part of the answer as to why poverty, and women's poverty in particular, is increasing lies with us here in this Chamber tonight. There are no speakers from the party opposite; and there are no Ministers on the Front Bench from the donor ministries—finance, trade, agriculture and defence. I doubt very much whether those ministries consider gender issues in their approach to their work.
  I believe I am right in saying that all noble Lords who are contributing to this debate have NGO backgrounds and experience and care passionately about this subject. I am not criticising the groups I have mentioned; I am criticising us for not properly getting our message across and for "preaching to the choir". The message needs to go wider.
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  When I heard that I had an extra two minutes in which to speak, I immediately rushed back to my computer and called up Alta Vista, the search engine, and typed in, "International Women's Day", in an attempt to find two minutes' worth of material. I found 10, 011, 743 web pages, many of them concerned with development issues. So while we are preaching to the choir, there is a very large choir out there of those who are interested in development issues.
  In conclusion, my noble friend's Qustion is addressed to Her Majesty's Government, not only to DfID. I should be very pleased if my noble friend would give examples of the promotion of women's development issues outside DfID but within Her Majesty's Government.
  8.24 p.m.
  Lord Dholakia: My Lords, I wish to add my congratulations to the noble Lord, Lord Patel, on his maiden speech. The noble Lord brings with him wide experience in the field of health. I hope that this House will benefit from his contributions on future occasions. Unlike most noble Lords, he shares with me my country of origin, and it therefore gives me added pleasure to congratulate him.
  Perhaps I may also congratulate the noble Baroness, Lady Ramsay, on extending the time limit for speakers in this debate from three to five minutes. At least it gives me a breathing space between sentences.
  I welcome this debate. I am a trustee of the Save the Children Fund. That charity has already submitted written evidence to the International Development Committee of the House of Commons inquiry into Women and Development. I am glad that we have the opportunity to discuss the subject in this House.
  Poverty is not just about the lack of fulfilment of basic needs. It is also about the reasons for that lack, which vary widely and may also require cultural interpretation affecting different communities throughout the world. If poverty were about economics, then money would solve most of the problems. But it is not. Poverty is also about power and control. It is about ownership of property and legal rights. It is about political, social and cultural priorities. It is easy to talk about education and health. But if we strip the subject to its bare essentials, we need to address power relationships. The gap is still growing between the rich and the poor and between men and women—but, more importantly, between men and women in third world countries.
  In essence, what is needed is training to support effective policies and programmes which take into account women's needs and which enable people, once they are trained, to put their knowledge into practice. Programmes must be based on gender awareness and gender analysis. We need to support civil society networks in raising public and state commitment to gender equality. We need to examine the non-economic aspects of poverty, which often pertain to women. We must channel resources to those who are working to improve women's participation in the political decision-making structures.

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  We should undertake a gender assessment of British trade policy as a matter of priority. We must also seek to eliminate the inconsistencies that leave Britain supplying military technology to overseas governments who use it against their own people or against those in areas where Britain at the same time seeks to support the elimination of poverty.
  The non-economic aspects of poverty include insecurity and social isolation—whose special meaning includes domestic violence and sexual abuse, which disproportionately affect women. Added to that is displacement from conflict zones. These are the sorry tales that we hear and read about on a daily basis.
  It is time that women and children were at the top of the agenda in the battle for the elimination of poverty. Women and children must be at the forefront, because they are at the centre of family life in every civilisation.
  8.28 p.m.
  Baroness Thornton: My Lords, I congratulate my noble friend on initiating this debate at such an opportune time and on such an important day. Perhaps I may also say how much I enjoyed the maiden speech of the noble Lord, Lord Patel. Along with other noble Lords, I welcome him as a Member of this House. As a relatively "new girl" myself, I assure the noble Lord that he will find only friendship here.
  I wish to address two issues regarding women at an international level. I declare an interest. I am a lifelong and passionate co-operator—and, the last time I looked, I was a woman. I wish to take this opportunity of combining those two aspects of my life.
  The success of international co-operation is a testament to the strength of the philosophy of co-operative principles. Millions of people throughout the world work and belong to co-operative enterprises. Millions among those are women. In 1999, the United Nations, on the occasion of the International Day of Co-operation, has recognised the achievements of co-operation in stressing that women have found adequate means to improve their economic situation through co-operatives. It pointed out that co-operatives have not only allowed many women to overcome poverty—often by offering favourable conditions of employment and access to credit—but have also made a considerable contribution to the achievement of equality with men by improving education and training opportunities. One of the most important factors concerning women's participation in co-operatives is the presence of women in the decision-making process at every level of the enterprise. The United Nations acknowledges other contributions of co-operatives too, such as promoting women's self-reliance, helping to eliminate violence and integrating gender equality dimensions into policy-making.
  As a lifelong co-operator, I grew up understanding that an important and integral aspect of the co-operative movement was international solidarity and support. Solidarity and mutual support are also at the core of feminism. That is my second point. I make no apology for using the term on this day.
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  At a micro level, I gained enormous strength from the support of the noble women friends whom I have met in this House. I tell my male colleagues here that in the Earl Marshal's room, where we meet, we get enormous support from each other on a daily basis. I have found that a huge help in my time here. For women over the years—suffragettes, women in Ireland, women in need of protection, women during the struggles that they have had—women supporting women have helped to make the changes and progress that we have achieved. For example, a suffragette visited women in Turkey when the suffragettes received the vote in the early part of the century and there is a plaque to commemorate it.
  I have communicated by e-mail with sisters around the world: women oppressed by the Taliban, women in the Highlands of Scotland—they may not be oppressed, but they are there—women in poverty and pain. I take this opportunity to rejoice at the mutual support that women gain from each other around the world. I say that on this day in particular.
  8.31 p.m.
  The Earl of Sandwich: My Ladies and Lords, I am extremely grateful to the noble Baroness, Lady Uddin, and congratulate her on achieving the first gender balance I have seen in this House. I hope she proves to be a pioneer. I also congratulate my noble friend Lord Patel, who hales from Dunkeld, where I went to school a long time ago.
  The poorest people, it is said, are women and to escape from poverty women and girls need more education. I used to believe that that was the first priority, but in my experience it is not as simple as increasing the enrolment of girls in school or improved access to health. Women living in deprived economic conditions already know exactly what they want from life. They would escape from poverty tomorrow if they had the ability to overcome the constraints of gender, religion and culture which hold them back.
  I am always surprised—perhaps because of the propaganda of aid, which suggests the answers come from outside—how much wisdom exists in every society, at every level of development. In eastern Uganda last October I attended a women's group who were mourning their losses from AIDS in their villages. I asked them, if this was the cause of so much sadness, what made them happy? The clear answer was their unity, the unity of women, the participation of the whole community in their development; their ability to improve hygiene; the reduction of social stigmas about HIV; the training of health workers.
  How would they afford to set about these things?— mainly through agricultural activities, the sale of vegetables, herding cattle if they could afford to; making mats, other craft objects and baskets, if they could find a market. Later I joined a self-help group in which men dominated. One man said that they needed to get more children into school, but another man, a health worker, said: "It's no good having children if you can't look after them". He was expressing a universal sentiment. The group leader lamented: "In the past it was easier to support children, things weren't so expensive". He said that meeting needs today would mean change.

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  The reality is that the poorest people have fewer choices and the women even less. I have seen some excellent programmes which sustain women's education and development. They break down some of the barriers of dependence. They are programmes which reflect the Beijing agenda of empowerment, enlarging the traditional caring role into a political and economic responsibility.
  In Afghanistan, through a trust, I have supported a project which enables girls to receive appropriate informal primary education in practical skills—until the Taliban closed it down. In Orissa I visited a CARE programme which skilfully combines health and microfinance, giving women independence through small business credit schemes. In Bangladesh, as we have heard, the repayment rate is a success and a challenge to other countries.
  But the question today is whether governments like ours can support such programmes in the climate of enhanced structural adjustment in which the demands of the IMF and the World Bank inevitably promote the interests of a traditional hierarchy. To put it in simple terms, there is evidence that while women and children do the bulk of agricultural work, when it comes to cash crops, when they go to market, the men seem to have the lion's share of the management and profits.
  I know that that is a simplification and I do not want to imply that governments are more insensitive than NGOs. There are some excellent examples of good practice in the UK bilateral aid programme. We have heard the example of the Bangladesh Rural Advancement Committee and there are many other examples of agencies with a proven track record. Governments have recognised that microlending works and that loans to the very poor and to women in particular are a highly efficient means of eliminating poverty and supporting women's rights to greater economic influence.
  I congratulate the Government on their renewed emphasis on gender equality and their programmes for women, as declared in their new publication Breaking the Barriers. I wish to ask one question of the Minister. I note that on page 19 it says that the Lome Convention now pays more attention to gender, apparently with UK encouragement. I would like to ask her whether she accepts that international trade and economic liberalisation can discriminate against and marginalise women. Echoing what has already been said, can the Minister confirm that the Department of Trade and Industry shares DfID's understanding of gender equality and that, as the noble Lord, Lord Ponsonby, said, the DTI too will promote gender awareness and equality in its own programmes?
  8.36 p.m.
  Baroness Lockwood: My Lords, this Question today is appropriate on International Women's Day. It is also apposite. In February a series of conferences began in The Hague, leading to a special session of the United Nations General Assembly in June, which will review
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  and appraise the implementation of the programme of action agreed at the International Conference on Population Development in Cairo five years ago.
  At that conference, 180 countries agreed recommendations for sustainable development strategies to eradicate poverty and to guarantee human rights. The programme of action put people at the centre of development and focused on action seeking to stabilise world population. In this, the position of women is pivotal: their education and their right to reproductive health are the two sides of the one coin, facilitating women's contribution to world economic and social development and the eradication of poverty.
  The concept of population control to reduce the rate of world population growth, with all its human and environmental consequences, was replaced by the right to reproductive health services and facilities; in other words, the right to have access to reliable information and education on healthcare, on personal relations, sex and contraception. Consequent upon that is the ability, as well as the right, to choose the number and spacing of one's children.
  As the noble Lord, Lord Patel, indicated in his excellent maiden speech, the extent to which that right is exercised is determined by the level of women's education. So, too, is the extent of family health and well-being and women's contribution to wealth creation.
  What is the score five years after Cairo? My noble friend Lady Uddin made reference to successful programmes in Bangladesh. Others have also referred to such programmes. While globally progress has been made there are areas in which the position of women has deteriorated. In sub-Saharan Africa and parts of east Asia the proportion of girls in education has declined. In sub-Saharan Africa earlier efforts to get children into primary school have stalled. The total number of children out of school has increased and is projected to rise from 41 million in 1980 to 83 million by 2015. This is not altogether due to lack of activity. Indeed, in some areas there has been an increase in enrolment, with the number of girls in schools keeping pace with boys. However, because of the rise in population the proportion of girls in schools has declined.
  This patchy and disappointing progress can be put down to many factors: world depression; more wars; the appalling growth in AIDS, which has put women at even greater risk; but, above all, the failure of governments to provide the necessary funding to carry forward the programme. One honourable exception to this is the United Kingdom. The UK Government are one of the few to increase their international development programme and put women at the centre of it. Therefore, this evening perhaps I may ask my noble friend the Minister whether there is anything that the Government can do to put pressure on other countries, particularly in the EU, to increase their aid in order to fulfil the expectations of Cairo.
  8.42 p.m.
  Baroness Thomas of Walliswood: My Lords, I begin by apologising most sincerely to the noble

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  Baroness, Lady Uddin, for missing the first minute or so of her speech. I am afraid that I was watching the clock and not the monitor. I should know better by now.
  I gained my experience of poverty, in what was then called the third world, when helping in a clinic in one of the barriadas in Lima 30 years ago. There we were trying in a very small way to counter dehydration and other medical problems about which noble Lords have spoken. Witnessing abject poverty in the coastal urban slums and the rural areas in the high Andes, I learnt about the dead weight of poverty and ignorance, and their disproportionate impact on the life of women. Interestingly, although it is extremely important to have in mind how to help people in their traditional communities, many of the world's poor do not live in such communities any more; they live in large cities and must be helped in very different circumstances.
  My experience led to a long interest in development issues in general and the impact of poverty upon women in particular. I was convinced that to educate and assist women should be an essential part of any aid programme: first, for women's sake; and, secondly, for the sake of healthier and smaller families and a healthier economy. We should not forget that in our communities there are women who cannot speak English and cannot properly participate in the political and civil life of our country.
  At that time and for some time after not everyone shared that approach. At a meeting of the Liberal Policy Committee (as it was then) some time in the early 1980s I was able only to insert a sentence into a development paper on the importance of educating women as a result of the trenchant support of the late and greatly missed Lady Seear. "Susan Thomas is absolutely right", clinched the argument in my favour.
  Later, time spent in Cuba confirmed my views. Education and health have been priorities of the revolution almost since the assault on the Moncada Barracks. Whatever criticisms one may make of the Cuban regime—and there are many—it is clear that the provision of universal literacy and equal employment rights has greatly benefited women and enhanced their contribution to society. But things have now changed even in the centres of power in the world of development aid. A recent seminar/discussion arranged for parliamentarians by the noble Baroness, Lady Amos, and DfID civil servants demonstrated the social, economic and physical subservience still suffered by women and the importance of women's contribution to the health and economic wellbeing of their communities and countries. The data that they produced and the sound theoretical and factual basis were of great interest to all of us.
  The noble Baroness, Lady Uddin, told an interesting story about how in Bangladesh local women now had the confidence to challenge the NGOs themselves. That really is progress. But there are still difficulties in providing education and health to the poorest people in the world, particularly women. Fertility, genital mutilation, the education of women and the general role of women in society are all matters in dispute. I look forward to hearing what the Minister is able to tell us
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  about the new approaches to the delivery of aid, or assisting NGOs to do so, to enable women in those areas where custom and religion assist poverty to escape from it.
  8.46 p.m.
  Lord Watson of Invergowrie: My Lords, first, I commend my noble friend Lady Uddin for introducing this debate. Secondly, I commend the noble Lord, Lord Patel, on his excellent maiden speech. He and I have more in common than simply being participants in this debate. He is a distinguished physician in my home city of Dundee and practises at the hospital where my sister works, though she is not a doctor. Thirdly, perhaps the noble Baroness, Lady Rawlings, will comment on the wide open spaces behind her and her colleague and the fact that not a single Conservative Back-Bencher has put down his or her name to contribute to the debate or found the time to attend to listen to it. I believe that that is shameful. I hope that we shall hear some explanation for it at the appropriate time.
  "The last International Women's Day of this century will not be cause for celebration for the hundreds of millions of women who make up 70 per cent. of the world's poor and who are caught in a vicious circle of discrimination, lack of education, violence and poverty, which they pass on to their children".
  These are not my words but the words of Bernard Coppens, director of the European Office of the United Nations Development Programme. I believe that that comment was made with some effect. The contrast between the developed and the developing worlds, north and south, rich and poor—however it is phrased—could not be more pronounced than in women's reproductive rights. To compare the country at the top of the: league, Japan, with the country at the bottom, Sierra Leone, I offer three statistics that I find shocking and horrifying. In Japan the life expectancy for women is 82 years; in Sierra Leone it is 37 years. In Japan each woman on average has one child; in Sierra Leone the average is seven children. In Japan five out of 1, 000 children are stillborn or die in the first week of life; in Sierra Leone the figure is 80 out of 1, 000.
  UNICEF reports that complications of pregnancy and delivery are the leading cause of death among reproductive-age women in developing countries. As the noble Lord, Lord Patel, eloquently illustrated, the appalling extent to which women die in pregnancy and childbirth is now reaching record levels. Most of these deaths could be prevented with better reproductive healthcare, and they have a cumulative multiplier effect which is in itself frightening.
  They leave behind them 1 million motherless children who are themselves up to 10 times more likely to die in early childhood. Families lose the mother's crucial role in childbearing, household management and care for children and other family members. That is crucial because these roles are almost exclusively women's roles in the developing world. If they are not there, those: left behind suffer and go on suffering.
  Marie Stopes International, a widely respected organisation, has identified four interventions which it says are needed to improve radically reproductive healthcare for women in developing countries. These

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  are, first, improved access to basic health, family planning services and adequate nutrition; secondly, attendance at birth by either a skilled midwife or doctor; thirdly, the provision of essential obstetric care for complications and emergencies; and, fourthly, the provision of postnatal and basic neonatal care.
  Crucial to the achievement of women's empowerment and equality for girls so that they can realise their full potential is not only access to reproductive health services but also general as well as health education. Perversely, these are precisely the factors which are least available in the poorest countries. They are often countries which still have underdeveloped democracies, little representation of women in senior positions and a prevalence of socio-cultural attitudes which prevent the empowerment of women.
  I know that the Government are giving priority to funding formal and informal education programmes for girls and women in the most needy countries. I would ask that they continue to support movements to remove legal, social and cultural barriers: those which prevent women in the poorest countries from fully participating in society and, crucially, in policy-making.
  The next International Women's Day will be the first day of the new millennium. I hope that we can report that some of the figures which I and others have quoted tonight will at least begin to improve so that women's health and women's empowerment will be among the first signs of the new millennium and we will be making progress.
  8.51 p.m.
  Lord Redesdale: My Lords, I start by thanking the noble Baroness, Lady Uddin, for initiating this debate. It takes a great deal of skill to manage to coincide a debate of this importance on a day which happens to be International Women's Day. This shows her success in manipulating our parliamentary system. I should also like to congratulate the noble Lord, Lord Patel, on his maiden speech. I would have to admit that if I had only been given three minutes for my maiden speech it would have been a disaster. It shows how skilful he has been in making a speech of such importance in such a short period of time.
  I should like to go on and commend the noble Baroness, Lady Amos, because I feel that she has slightly undermined the tenor of my speech by the unfortunate ability to pre-empt my usual 20 questions by putting forward an awareness briefing for MPs on gender development and poverty a couple of weeks ago. If the quality of my speech is slightly low it is because I went through the whole of it suffering from concussion. I have to admit that it was one of those briefings which are incredibly impressive because we on the Opposition Benches like to think that we are the only ones who ask these questions. It is rather annoying to find that DfID has not only asked the questions we wanted to have answered but that it has also gone a great deal further in questioning the whole precept of gender and sex, putting forward the supposition that gender is
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  not a static position and that the role of women is changing in different societies in different ways at a constant rate—not just backwards but also forwards.
  The developed world is often guilty of arrogance in thinking that it has actually succeeded. Many statistics on employment and pay show that equality is not something which has reached the developed world. However, this Chamber, as shown by the debate, is one of the very few places where we almost have equality.
  Examples from the developing world and emerging democracies show that we have a number of lessons to learn. Many are extremely positive. The central message is that an economy depends on the position of women in that society. Noble Lords have commented on the role of education. It seems strange that it should have taken such a long time for people to understand that the only way to combat destructive population growth is through women's literacy, and not by trying to combat it through men's sexual habits or other means.
  The debate has shown the need for empowerment in all sections of society, but especially the empowerment of women by providing for them the means to conduct business and support themselves. I wish to refer to the issue of micro credit. It is important to realise that without the money to buy the tools and plant the seeds, the local economy is very damaged.
  The role of women in developing economies is often under-rated, as revealed in the briefing we received. My own experience is of seeing women, mostly in Africa, in the field, usually with two or three babies. This is rarely stressed in any figures put forward by the World Bank. It is the women who till the fields and provide the food for the family as well as doing many other jobs.
  There is also the extremely important area of politics. Without a change in the political make-up and composition of the gender of politics, most of the other areas will fail. I wish to mention one positive aspect which my noble friend Lady Williams brought to my attention following her recent visit to India. One-third of all seats in local councils, including committee chairs, must be held by women. That situation is soon to be taken forward to parliament. It is perhaps something we should think seriously about in our own political system.
  I conclude with a question. Can the Minister say, within World Bank and IMF evaluations of economies, whether the farm role of women in producing food for the family on local plots of land is to be quantified for future evaluation of the role of women in the economy?
  8.57 p.m.
  Baroness Rawlings: My Lords, I should like to thank the noble Baroness, Lady Uddin, for initiating this debate, a timely and interesting one, on a topic of fundamental importance. I too should like to add my congratulations to the noble Lord, Lord Patel, on his maiden speech, even though I know it is not customary to add further congratulations after the first person has done so. However, I believe that his speech was truly outstanding, as maidens go.
  As the diverse contributions show, this topic is immense, as it is intertwined with all aspects of development—in itself a complex topic. It is also a

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  delicate subject, as it touches the heart of human relations, as we heard in the most moving speech of the noble Earl, Lord Sandwich.
  Women in what was called in 1985 the third world have a potentially pivotal role in combating poverty, as was recognised then by the Nairobi Conference. Women perform 53 per cent. of all economic activity in developing countries. These women, as almost everywhere else, are also in charge of the household. As a result they have deeper roots in the community, greater stakes in the proper management of natural resources and they make a crucial contribution in bringing up the next generation. Often, however, they are hindered in building a better future for themselves and their families because they lack the confidence and the education. The role of women in eradicating poverty will be strengthened only as their level of education improves, a point which several speakers have stressed and with which I agree.
  This may be a banal point, but what do we mean by "improving education"? Here the problems start. I recently re-read the section on education in the Beijing Declaration and Platform for Action. I was struck by its high idealism; its relatively low emphasis on participation; and its lack of concern for any respect for cultural differences. Although there is a broad international consensus behind this platform, we as Conservatives would like to question how realistic this is; whether its implementation will not create a larger number of "educated derelicts", in the words of Calvin Coolidge; or whether it is correct to equate western secular values with universal values.
  Although we recognise the importance of eliminating gender disparities in primary and secondary education, we question the Government's priority, as the vast majority of illiterate women are currently over the age of 17. We believe that non-formal education and training for older women should be given greater support. It has to fit with the pattern of their lives; their family commitments and the agricultural cycle. Although numeracy and literacy are important, women also need a much wider range of education.
  In practice, we see a fine example in the work of Seva Mandir in Rajisthan; the local women are encouraged to articulate their needs and identify a leader. This local leader is then trained in many skills, from the management of natural resources to health education and the importance of contraception. She then shares her skills with other local women.
  In that way women take the responsibility upon themselves, as was so rightly said by the noble Lord, Lord Redesdale, for the improvement of their lives and play an important role in the elimination of world poverty.
  9.2 p.m.
  Baroness Amos: My Lords, I thank my noble friend Lady Uddin for initiating today's debate and for having the foresight to hold the debate on International Women's Day. I, too, congratulate the noble Lord, Lord Patel, on his maiden speech. I look forward to his continued contributions to debates in this House. I am
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  pleased that the short time available for today's debate did not prevent noble Lords from making a significant contribution.
  Today is a day for the celebration of women's achievements but it is also an opportunity to pause to reflect on the status of women internationally. Gender equality is indispensable to the elimination of world poverty and is one of the most challenging issues in international development. Women already play the key role in the struggle against poverty, but they are fighting an uphill battle. Removing barriers to women's equality will release a massive, undervalued stock of human potential, with benefits for all.
  This Government's commitment to women's equality is clearly spelled out in the White Paper on international development. Gender equality is at the heart of the Government's programme and underlines the direct link we see between gender inequality and poverty. It also explicitly recognises the link between the realisation of human rights and the elimination of poverty.
  This is a development debate, but in the light of the comments made by my noble friend Lord Ponsonby I must briefly set out our other priorities in relation to gender. We have established a women's unit which is working across government. It has clear priorities and is developing a clear agenda for women, including looking at women's incomes over a lifetime. I assure my noble friend that the expertise which we have gained in the Department for International Development has been acknowledged and the department will make a presentation at the next meeting of the Whitehall-wide group of Ministers who are looking at women's issues on the subject of mainstreaming.
  Given the short time available to me tonight, I intend to focus on three key areas: violence against women; education for women and girls; and women's role in the economy. Women's role in the elimination of world poverty needs to be addressed in the context of wider social and cultural norms which impact on women's day-to-day lives. The noble Baroness, Lady Thomas, touched on the wider social issues affecting women. Poverty is not just about lack of income; it is also about wider issues of disadvantage, powerlessness and social exclusion.
  The noble Lord, Lord Dholakia, talked about the abuse of women. One of the most shocking manifestations of women's inequality is violence in peacetime as well as war, in the home as well as in the wider community, regardless of women's economic or social positions. Violence against women is a major violation of their human rights, so we must make every effort to stamp out the world-wide attitudes which lead to the abuse and exploitation of women across the world. Practices such as female genital mutilation and other forms of physical disfigurement remain a serious threat to many women around the world. Infanticide and sex-selective abortions also violate female rights in early life, or even before birth.
  The DfID is increasing its work in this area through its bilateral work and through international partnerships. The department is already working closely with UNIFEM and making a substantial contribution to the

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  work it is doing through its Global Trust Fund to Eliminate Violence Against Women. The department currently funds more than 20 initiatives around the world targeted at ending violence against women. We are also developing a gender focus in our wider approach to conflict prevention and humanitarian assistance which is seeking to mitigate the costs to women as well as men of natural disasters and the human tragedy of conflict. More importantly, we are looking for longer term solutions which will help prevent these events occurring in the first place.
  I now turn to education. Investing in education for girls is the single most effective means of reducing poverty. Almost two out of every three illiterate people are women. Even a few years of basic education empowers women; they are economically more productive, have smaller, healthier families and are more likely to ensure that their own children go to school. The right reverend Prelate the Bishop of Oxford drew our attention to the problems that are still being faced in education. The noble Earl, Lord Sandwich, my noble friends Lord Patel and Lady Lockwood and the noble Baroness, Lady Rawlings, also mentioned education.
  I should say to the noble Baroness, Lady Rawlings, that our policy approach is founded on international agreements which virtually all countries in the world have signed. We respect the right of people to their own culture but we believe that discrimination against women cannot be justified on any grounds. We are explicit about our values in that respect and hope to persuade others to join us.
  Gender inequality in education is costly and undermines development. In sub-Saharan Africa, it is estimated that gender inequality in education has reduced economic growth by 0.7 per cent. every year for the last 30 years—opening up a gap where countries which deny girls a fair share of educational opportunities have gross national products roughly 25 per cent. lower than those where they get a better chance.
  In DfID we have made education for girls a top priority. We are putting resources behind international efforts to eliminate gender inequalities in education. We are committed to specific global targets to eliminate gender disparities in primary and secondary enrolment by 2005, and to achieve universal primary education in all countries by 2015.
  My noble friend Lady Goudie and the noble Lord, Lord Redesdale, talked about women's role in the economy. Sustainable human development means enabling people to have opportunities to secure their economic needs through access to assets, markets and economic institutions which are efficient and properly regulated so that the poor can work and prosper. In Africa, it is estimated that women do 80 per cent. of agricultural work—the main source of livelihood for poor people. DfID's support for research and action to help improve rural livelihoods and the sustainable use of natural resources is increasingly focusing on the different needs of women and men.
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  If poor women want to go it alone, they find it almost impossible to obtain credit and other support to set up on their own account, in spite of having a better track record than men in repaying loans. In Latin America, the Caribbean and Africa fewer than one in 10 of the beneficiaries of credit programmes are women.
  That means working specifically to support women's interests by funding credit programmes, a point raised by many noble Lords and by my noble friend Lady Uddin. We need to fund credit programmes which directly serve the needs of poor women and work with governments to change land and inheritance laws to protect women's livelihoods.
  We have also been at the forefront of ground-breaking work to bring a gender perspective into economic analysis and policy making. This includes collaboration with the Commonwealth Secretariat in supporting work on a "women's budget" in South Africa which is already bringing benefits through changes in welfare spending and the availability of credit to women. Similar work is now being done in Tanzania, Mozambique, Sri Lanka and the Caribbean.
  We are working closely with the governments of developing countries, the World Bank, and other development agencies, to develop new approaches to poverty analysis. These directly involve poor women and men in working out a deeper understanding of the causes and consequences of poverty and what needs to be done about it. I should like to say to my noble friend Lady Lockwood that we shall continue to work with the European Union on the priorities of the development aid budget.
  We recognise that poverty is a global and not just a local phenomenon. The noble Lord, Lord Dholakia, talked about the gender assessment of trade policy. We are funding research on the effects of world trade on women and helping to identify policy instruments to make globalisation work in the interests of the poor, particularly women because globalisation and world trade create both opportunities and threats for women. That is a government commitment and I assure the noble Earl, Lord Sandwich, that DfID is working in partnership with other government departments, including the DTI, on those matters.
  We are also building partnerships with the private sector and the trade union movement world-wide to improve labour standards, including health and safety, and to promote ethical trading. Of course, there is our on-going work with NGOs in a range of areas; a number of noble Lords have drawn attention to their specific contribution.
  The noble Lord, Lord Patel, focused on health, as did other noble Lords, including my noble friend Lord Watson. A key target for the 21st century is to reduce maternal mortality rates by three-quarters. That is a huge challenge and DfID has developed a four-point plan for safer motherhood, including the provision of information and good quality services.
  My noble friends Lady Uddin, Lord Ponsonby and Lady Thornton all mentioned political participation and the role of women in decision-making. Political participation is a human right, recognised in the

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  Universal Declaration of Human Rights. DfID is involved in training for prospective women candidates in Kenya and in a women voter education project which has led to a higher turn-out among women and more women being elected in project districts.
  A new project is under way in Pakistan to work through civil society to help women gain more access to political and economic decision-making. My noble friend Lady Uddin also mentioned Bangladesh and she asked me three questions. Our assistance to Bangladesh is country-wide and by no means confined to Dhaka. I shall write to her with details of how much of our assistance goes to Sylhat, although it may be difficult to give a precise breakdown because of the broad-based nature of our approach.
  I would like to thank noble Lords for their support of the work of DfID. I shall write to noble Lords whose specific questions I have been unable to address. I say to the noble Lord, Lord Redesdale, that I am sorry that
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  I pre-empted him but I look forward to his regaining his questioning style in future. I shall write on the specific points that he raised in relation to the World Bank.
  We do not see women as victims. Equal rights for women will bring equal rights for all and bring about a major breakthrough in the struggle against poverty. Women's equality is in everyone's interests, just as the elimination of poverty is in the interests of the rich as well as the poor. Women who are powerful will lead the way out of poverty. We seek to play our part in a global coalition to help them sweep aside the barriers that stand in their way.

  Road Traffic (NHS Charges) Bill
  Returned from the Commons with the amendment agreed to.
  House adjourned at a quarter-past nine o'clock.