Lords Sitting of 23 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 Lincoln.

Copyright: Sound Recordings
Baroness Hamwee Baroness Hamwee asked Her Majesty's Government:
What steps they are taking to reduce the discrepancy between the life of copyright for sound recordings in the United Kingdom (generally life of author plus 50 years) and in the United States (now between life of author plus 70 years and 125 years).
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, the sound recording copyright term in the UK is governed by EC law and the UK neither wishes to nor can legislate unilaterally. We see no grounds for an increase, particularly since UK recordings should not be at a disadvantage in the US as we understand that they receive the same terms there as US recordings. To raise the EC term of 50 years from release or making of a recording to US levels would clearly be very difficult since it would mean at least doubling it.
Baroness Hamwee: My Lords, I thank the Minister for that Answer. How do the Government intend to assist the British recording industry, particularly in the era of the Internet when a US licensee of a recording may upload it from the US and download it in the UK, creating income in the US with the UK losing out?
Lord Simon of Highbury: My Lords, at first instance we do not understand why UK companies should be at a disadvantage since UK recordings receive the same terms in the US as US recordings. We believe that UK companies should be able to obtain payment through their US licensees for the use of their product in the US such as uploading onto the Internet as the noble Baroness instanced.
Viscount St. Davids: My Lords, can the Minister inform the House what the United Kingdom authorities will do to stop blatant piracy by companies based in the EU which have CDs manufactured in such countries as Croatia?
Lord Simon of Highbury: My Lords, I am not aware that those products are being manufactured in Croatia under the terms of copyright. If that is the case I shall provide the noble Viscount with an answer. We shall have to study that case. Of course, in this context we are talking about copyright law.
Lord Razzall: My Lords, does the Minister accept that his response to my noble friend is somewhat
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disappointing? Does he also accept that this is a matter of concern to the UK record industry, and will he undertake to look further into it?
Lord Simon of Highbury: My Lords, as I said in my Answer, since a UK manufacturer receives the same terms in the US as a US manufacturer I have yet to understand the disadvantage that is put to me. The 50-year law that applies across Europe is a standard that is adopted in most parts of the world. The US applies a different term but it adopts a different principle; namely, the concept of works for hire. Since we do not recognise that concept within our copyright law we are perhaps comparing apples and pears here. I would need to understand much more clearly the real disadvantage that faces UK manufacturers.
Baroness Hamwee: My Lords, given the Minister's answer, is he prepared to meet representatives of the British recording industry, who may be able in private discussion to explain their concerns, and perhaps expand the debate?
Lord Simon of Highbury: My Lords, I am sure that, as always, the DTI is prepared to take submissions and to be educated. That is very good for it.

Kosovo: OSCE Verification Mission
2.40 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
What are their reasons for considering the Organisation for Security and Co-operation in Europe the most suitable body for establishing peace in Kosovo.
Baroness Ramsay of Cartvale: My Lords, the OSCE is one of a number of organisations, including the UN and NATO, which have a role to play in establishing a peaceful settlement in Kosovo. The OSCE Kosovo Verification Mission played an important role in reducing tensions on the ground in Kosovo until its withdrawal on 20th March in the face of mounting security problems. The Rambouillet Accords set out the framework of an eventual interim political settlement for Kosovo. As the House will know, US Special Envoy Richard Holbrooke has been involved yesterday and today in a last-minute attempt to get the Yugoslav Government to agree to the accords. The accords envisage the OSCE establishing a mission to implement the civil aspects of this agreement. A NATO-led military implementation force will be required to underpin this agreement given the level of distrust between the two sides and the security situation on the ground.
Lord Renton of Mount Harry: My Lords, I thank the noble Baroness for her complete reply. I add my support to her comments about the bravery of the unarmed OSCE observers in Kosovo who have tried to resolve the conflict there but who have had to be

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withdrawn. I realise that my Question arises at an awkward time as there is to be a Statement later this afternoon on this matter in which doubtless many military questions will be asked and, I hope, answered. Against the very dangerous background at the moment, what continuing role do the Government envisage for international bodies such as the UN and the OSCE in the resolution of the crisis in Kosovo, given that that is within the Serbian borders, and perhaps in other consequent Balkan conflicts, bearing in mind that we do not wish the whole burden in terms of odium and cost of lives and material to fall on just a few NATO members?
Baroness Ramsay of Cartvale: My Lords, the noble Lord makes a valid point about which the Government have been conscious from the beginning; namely, that the resolution of the situation in Kosovo has to be based on the maximum possible international support and co-operation.
The noble Lord is well aware that the Contact Group includes the United States and Russia as well as NATO members. It has been one of the prime movers in seeking to resolve the situation. We are conscious of the fact that it is not a matter that can be resolved by one, two or a handful of powers. We all have to share responsibility for resolving the issue.
Baroness Williams of Crosby: My Lords, perhaps we may add our warm tribute from these Benches to the work done by the verifiers. A remarkable degree of courage and common sense has been shown by them.
Can the Minister tell us whether the verifiers' information is being kept carefully in a form which will enable them to return at the first appropriate moment? Can the noble Baroness inform us whether they are being repatriated or kept as a group in readiness for their further usefulness?
Baroness Ramsay of Cartvale: My Lords, the noble Baroness and the House will understand that at the moment everything is in a slight state of freeze. We do not yet know the outcome of Envoy Holbrooke's discussions in Belgrade. However, the KVM, the monitors, have been withdrawn from Kosovo and are at present in Macedonia. At the same time, the NATO extraction force has also been kept there. They are all in Macedonia on standby for whatever is decided is the next appropriate action.
Lord Jenkins of Putney: My Lords, we understand that air strikes are under consideration. Can the Minister say that the Government will not be a party to, nor support, any proposal to bomb Belgrade?
Baroness Ramsay of Cartvale: My Lords, the House would not expect me to comment on whether, in the
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eventuality that bombing takes place, we would or would not bomb somewhere. I would rather leave that point.
The Earl of Lauderdale: My Lords, does the Minister agree that these events may well be turned against ourselves and Ireland if we once lost our veto in the Security Council?
Baroness Ramsay of Cartvale: My Lords, in my answer to the supplementary question by the noble Lord, Lord Renton, I indicated that we would only go forward on the broadest possible international front. Therefore I do not foresee a situation where we shall be isolated, if I understood the noble Earl's question correctly.
Viscount Waverley: My Lords, has Milosevic manipulated for his own end the conflict between OSCE principles of self-determination and territorial integrity? If so, what guidelines do the Government advocate on that contradiction?
Baroness Ramsay of Cartvale: My Lords, the Rambouillet Accords respect the territorial integrity of the Federal Republic of Yugoslavia while providing for greater self-determination for Kosovo. Those accords have been accepted by the Kosovar Albanian leadership.
Lord Moynihan: My Lords, do the Government have clear long-term political and military strategies if President Milosevic refuses to back down following a possible NATO campaign of air strikes?
Baroness Ramsay of Cartvale: My Lords, the Contact Group has put forward a long-term and carefully worked out strategy for the future of Kosovo. That is the subject of negotiation in Rambouillet and Paris. It provides in great detail for the future development of Kosovo. It is the long-term strategy for resolving the issue. However, it requires acceptance by both sides. So far only one side has accepted it.
At this precise moment in time, our energy has to be directed towards persuading President Milosevic, Belgrade and the Serbian leadership that the only possible sensible outcome for themselves and their own people, as well as for the future of Kosovo, is to accept the Rambouillet Accords, to allow into Kosovo the force that we think essential to oversee it, and therefore to sign the accords as the Kosovar Albanians have already done.
Lord Vivian: My Lords, against the background of the OSCE observers and our commitment of 9, 000 troops if a ceasefire deal is achieved, can the Government say how we can sustain that level of troops in the Kosovo area for longer than one year?
Baroness Ramsay of Cartvale: My Lords, the House will not be surprised to know that the military logistics have been extremely carefully worked out by Her Majesty's Government, the MoD and everyone else involved. If we make commitments which will require military forces and resources, your Lordships can rest

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assured that the Government will undertake only those commitments that we shall be able to fulfil along with all our allies.
Lord Chalfont: My Lords, will the Minister accept that the development of events is causing much concern to people who are deeply interested in the use of military power? Does she agree that it is rare for the use of air power alone to solve any problems? Does she further agree that air strikes against Yugoslavia and Serbia, especially Belgrade, might strengthen the position of Mr. Milosevic?
Baroness Ramsay of Cartvale: My Lords, whatever tactic is considered—air strikes or any other—must be weighed up carefully. There could be mixed responses to it. However, one must examine the situation in Bosnia, Serbia and Kosovo and ask what can be done to avert a humanitarian catastrophe. Iraq is not a perfect example of a previous situation, because there are so many differences, but it is not true that air strikes and the threat of them have not brought people to a political solution. They do not in themselves solve the whole problem, but they can sometimes be an extremely effective and useful tool.

Westminster City Council: Community Funding
2.51 p.m.
The Earl of Clancarty The Earl of Clancarty asked Her Majesty's Government:
Whether they will intervene to help prevent the cuts to arts and community funding made by Westminster City Council for 1999–2000.
Baroness Farrington of Ribbleton: My Lords, the Government have no intention of interfering in the decisions taken by Westminster City Council in this respect.
The Earl of Clancarty: My Lords, I thank the Minister for that Answer. Apart from the cuts, which are proving disastrous for some organisations, would not the Minister agree that one major problem is the extent to which they have come out of the blue? Can she tell us what practical measures the Government intend to take to discourage councils from acting as laws unto themselves in the areas of arts and community funding?
Baroness Farrington of Ribbleton: My Lords, the noble Earl asks a complicated question. In areas where there is no statutory obligation for a local authority to provide funding—for example, Westminster City Council—the Government can offer an opportunity for a partnership approach. For instance, the coming year will see the Arts Council and the London arts boards spending between them £36 million in Westminster. But ultimately it is for the council tax payers in Westminster to make their views known when they believe that the council is not getting its priorities right—perhaps
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I should declare an interest as one of those council tax payers—particularly in this case when reductions of such magnitude will have a grave effect on services.
Lord Strabolgi: My Lords, I, too, declare an interest as a resident of Westminster. Is it not a fact that the cost of looking after the asylum seekers, which has been used as an excuse by Westminster City Council for these arts cuts, can be recovered from central government?
Baroness Farrington of Ribbleton: My Lords, the Government are gravely concerned about reports that the chairman of Westminster City Council Arts Council has stated that the issue is one between funding for the arts and funding for asylum seekers. My right honourable friend the Home Secretary has made available an additional £30 million to support arrangements for asylum seekers, particularly in the areas most affected such as Dover and London. Local authorities will be able to recover the: costs of accommodation and supporting asylum seekers. It would appear to be a tragic juxtaposition of two competing claims on a false premise.
Viscount Falkland: My Lords, does the Minister agree that the Government have made it clear that arts funding is fundamental to our society, as it is in any civilised society? How is it that an inner London borough which embraces many important arts projects can decide to put arts so low down its priority list? What liaison exists between the Minister's department and the Department for Culture, Media and Sport on this issue?
Baroness Farrington of Ribbleton: My Lords, the noble Viscount raises a particularly difficult question. If, like the Government, one believes that some areas of local authority provision must be a matter for subsidiarity, the choice must be made by Westminster City councillors, guided by the exhortations by Members of your Lordships' House and others who believe that they are wrong. However, the Government cannot be held to account for not imposing their views on every authority and then criticised for being big brother and running a nanny state. I and the Government believe that the council's judgment is not sound in terms of its priorities, but ultimately it must be a matter for the council. I leave it to your Lordships' House to judge whether there is any relationship between, for example, the majority political controlling group and the decisions that are made.
Lord Marsh: My Lords, will the Minister not revert to her original stance that the matter has nothing to do with this House? I, too, declare an interest as a council tax payer in Westminster. Does she agree that it is a matter purely for the council, and that on all the evidence of the elections, it and we are very happy?
Baroness Farrington of Ribbleton: My Lords, your Lordships would be most surprised if I were to subscribe to the noble Lord's invitation to say that we are happy with Westminster City Council. I believe that cuts of 48 per cent. for the Serpentine Gallery in the year

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following an election, which will have a grave impact on the gallery's education programmes and the service offered to local residents, is very regrettable.
In a democracy we are free to express views on decisions taken, albeit by legitimately autonomous democratic authorities. I believe that for an authority to slash funding for the Serpentine Gallery, the Photographers' Gallery, the Institute of Contemporary Arts and the orchestra of St. John's, Smith Square, which must offer solace to people working in Smith Square, and to have a situation in which we are not even allowed to comment is asking too much.
Baroness Seccombe: My Lords, does the Minister agree that as local authorities are independent this type of situation will arise from time to time? In any event, is this not likely to become an even more common situation, given the Government's commitment to devolution?
Baroness Farrington of Ribbleton: My Lords, the policy of devolution inevitably carries with it the opportunity for people in different regions and local areas to make judgments within the framework laid down by Parliament. However, I believe that the noble Baroness is mistaken in saying that it is not for Members of your Lordships' House to raise the issue here or for the Government to defend their position. Grant cuts made in a year when an additional £5 million has been given to Westminster City Council is not the kind of political action that one can expect to go unchallenged.

Commercial Television: Advertising Limits
3 p.m.
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
Whether there is any legal limit on the proportion of broadcasting time which may be devoted by commercial television companies to advertising breaks.
Lord McIntosh of Haringey: My Lords, the Broadcasting Act 1990 empowers the Independent Television Commission to give directions to its licensees on the amount, scheduling and presentation of advertising. Under the ITC code, the total amount of advertising on Channels 3, 4 and 5 in any one day must not exceed an average of seven minutes per hour of broadcasting. For cable and satellite services, the total amount must not exceed an average of nine minutes per hour of broadcasting.
Lord Hardy of Wath: My Lords, I am grateful to my noble friend for that Answer which seems to confirm the general view that, on average, commercial breaks should not greatly exceed two minutes. But is my noble friend aware that quite frequently breaks of a much longer duration occur? Is that to enable the companies concerned to offer high fees; for example, in the recent case of Miss
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Lewinsky who is reported to have received £400, 000 when £800, 000 was said to be available? Is that not more than many millions of ordinary people will receive in a working lifetime? Does my noble friend accept that while the advertising may be more interesting and ingenious than the programmes they interrupt, they should continue to be subject to very careful invigilation?
Lord McIntosh of Haringey: My Lords, in my first Answer, I emphasised the arm's length basis on which we operate in these matters. My noble friend interpreted what I said as meaning that an individual advertising break would not be more than two minutes. That is not what the ITC provides. The breaks can be of different lengths within the hour. But there is a provision that even in a peak hour, not more than 12 minutes in one hour can be advertising.
The issue of fees is even more an arm's length issue and is not a matter for the Government.
Lord Borrie: My Lords, is there a legal limit on the volume at which the advertising can be played during the commercial breaks in relation to the programme material on either side of the break?
Lord McIntosh of Haringey: My Lords, I raised that question when being briefed because I have the impression, as does my noble friend, that the advertising is sometimes louder than the surrounding programmes; just as I have the impression that Classic FM is louder than Radio 3, which I find equally infuriating. I believe that there are regulations on that. However, I shall look into the matter and write to my noble friend.
Lord Cocks of Hartcliffe: My Lords, did my noble friend see a commercial on GMTV this morning for Claims Direct encouraging compensation claims? Will the Minister consider what can be done to halt that slide into an American-style society based upon litigation?
Lord McIntosh of Haringey: My Lords, the arm's length principle would require that we do not interfere with the content of advertising. That is a matter for the ITC. But the Home Office will be interested in what my noble friend said about encouraging a litigation society and I shall make sure that it is aware of his remarks.
Lord Swinfen: My Lords, is the Minister satisfied that advertisements for programmes to be shown after the watershed conform with the rules and suggestions for programmes generally to be shown before the watershed? In other words, are they showing scenes of violence or sex that are unsuitable for children which normally would not be shown until after the watershed?
Lord McIntosh of Haringey: My Lords, the point of the watershed is that there are different standards after nine o'clock and before nine o'clock. I do not quite understand what the noble Lord is saying.
Lord Swinfen: My Lords, perhaps I may enlighten the noble Lord. Is he satisfied that the advertisements for programmes that are to be shown after the watershed

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conform with the rules for all programmes which should be shown before the watershed? In other words, are they suitable?
Lord McIntosh of Haringey: My Lords, clearly, advertisers will use their judgment as to what advertising is appropriate and profitable around which programmes. If the noble Lord is referring in particular to advertising around programmes for children, there are extremely explicit restrictions on what may be advertised around such programmes. Advertisements for alcoholic drink, bingo, certain religious matter, slimming products, lotteries, the pools and so on are not allowed around programmes which are primarily for children and which are therefore before the watershed.
Viscount Falkland: My Lords, I am sorry if I misunderstood the noble Lord but will he confirm that in a programme there is a 12-minute limit on the amount of advertising? Is it not the case that over a 24-hour period, it is nine minutes, not twelve minutes?
Lord McIntosh of Haringey: My Lords, the average throughout the day on Channels 3, 4 and 5 is seven minutes. The average throughout the day for cable and satellite is nine minutes. In any individual hour, there can be a maximum of twelve minutes but clearly that must be compensated by fewer advertising minutes in another hour.
Lord Peston: My Lords, do the figures which my noble friend gives include the vast amount of advertising carried within programmes, including programmes on the BBC, under the spurious heading of sponsorship? That includes the logos of a large number of firms which certainly, to a naive person like myself, looks like large-scale advertising.
Lord McIntosh of Haringey: My Lords, the answers that I have given do not refer to the BBC, although I understand from representations which have been made, that some people object to the BBC promoting its own programmes quite so extensively as they do, even to the extent of promoting forthcoming programmes during the credits of the previous programme. The restrictions to which my noble friend refers and which are the subject of this Question do not include sponsorship or accidental, perhaps deliberate, plugging for individual products within programmes. If my noble friend has any evidence, he should write to the ITC about that.
Lord Bridges: My Lords, has the Minister taken up with the BBC the point he made about the relative inaudibility of Radio 3 compared with Classic FM. I have done so with the controller of Radio 3 who denies that there is any such problem. I hope that the noble Lord will be able to deal with that matter which is of widespread public interest.
Lord McIntosh of Haringey: My Lords, I did what I thought was even more appropriate. I took it up with the directors of Classic FM who told me that they
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broadcast at the volume which they are required to by communications regulations. Perhaps we should look further into that matter.

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

European Tax Harmonisation (Veto) Bill [H.L.]
Lord Waddington: My Lords, I beg to introduce a Bill to require Ministers of the Crown to obtain the approval of Parliament and the public before agreeing in the Council of Ministers to European Community proposals for tax harmonisation. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time. — (Lord Waddington.)
On Question, Bill read a first time, and to be printed.

Business of the House: Consolidated Fund (No. 2) Bill
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 44 (Arrangement of the Order Paper) be dispensed with to enable the Consolidated Fund (No. 2) Bill to be taken through all its stages this day. —(Baroness Jay of Paddington.)
On Question, Motion agreed to.

Consolidated Fund (No. 2) Bill
Brought from the Commons, endorsed with the Certificate of the Speaker that the Bill is a Money Bill, and read a first time.
Then, Standing Order 44 having been dispensed with (pursuant to Resolution of today), Bill read a second time; Committee negatived; Bill read a third time, and passed.

Youth Justice and Criminal Evidence Bill [H.L.]
3.10 p.m.
Read a third time.
Clause 1 [Referral of young offenders to youth offender panels]:
Lord Dholakia Lord Dholakia moved Amendment No. 1:
Page 1, line 15, after ("absolutely") insert ("or conditionally").
The noble Lord said: My Lords, my amendment is designed to introduce a little more flexibility to the lower tariff of sentencing and thus would alleviate almost all cases having to be referred to the youth offender panel. Of course, there are some exceptions which I shall cite later. I do not wish to anticipate what the noble Lord, Lord Windlesham, will say about the amendment tabled in his name and in the names of the noble Lords, Lord Renton, Lord Thomas of Gresford and Lord Campbell of Alloway. At this stage, suffice to say that the noble Lord's amendment is designed to introduce discretion in the process, whereas my amendment limits discretion at the lower end of the sentencing process.
There is clarity in Clause 1 of the Bill on which offences do not require referral to youth offender panels. I refer, for example, to: an offence where sentence is fixed by law; an offence where a custodial sentence or hospital order is envisaged, or one where an absolute discharge is appropriate. However, we need to be aware of the considerable variation in sentencing in youth and magistrates' courts. Some courts are more punitive than others and, despite sentencing guidelines from the Magistrates' Association, such variations often cause surprise and concern.
I believe, therefore, that there is no single yardstick by which we can establish a uniform method of working in the courts. However, we can restrict the discretions so that variations in sentencing are not wide. My amendment will do that in three different ways. First, it will allow magistrates to deal with trivial cases without having to refer them to the youth courts. Secondly, unlike total discretion, it will restrict magistrates to use discretion at the lower end of the tariff, thus introducing a more balanced approach to sentencing. Thirdly, it will reduce the workload on youth offender panels when trivial offences are removed from being referred to them, thus achieving the Government's objective of allowing youth offender panels to work with more serious offenders.
There are offences where absolute discharge is appropriate. Equally, a conditional discharge, which puts the onus on a youngster not to commit another offence within a specific time, could have a salutary effect on him or her. We must accept that some offences do not require youngsters to enter into a contract. A conditional discharge would serve that purpose.
Perhaps I may introduce another argument in support of the amendment. I may be wrong but I have always considered absolute discharge and conditional discharge to be part and parcel of the same thinking process. When I served as a magistrate, the exercise I was often given was whether an individual should be discharged and, if so, whether such discharge should be absolute or conditional. I do not believe that one can single out what is absolute and what is conditional unless one has heard all the facts in the court.
I have more serious reservations about giving the courts complete discretion to decide whether or not to refer an eligible young offender to the panel than do the noble Lords who have put their names to Amendment
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No. 2. There is a real risk that some magistrates— perhaps many—would dislike the idea of losing control of the disposal of the young offender to a panel and would use their discretion by rarely, if ever, making such a referral. If that happened, it would undermine the aim of Clause 1 which is to deal with most young offenders appearing in court for the first time in a more suitable setting than a traditional court.
It is clearly not the intention of the noble Lord, Lord Windlesham, to undermine the youth referral panels. In a later amendment tabled in his name, one can clearly see the merit of the idea for many young people. Indeed, if the noble Lord, Lord Windlesham, was to chair every youth court, we would be confident that he would use his discretion imaginatively and constructively. Unfortunately, I fear that some colleagues on the Bench would use their discretion much more cautiously and in a far less positive and enlightened way.
Let us remind ourselves what we would lose if the proposed youth panel system was jeopardised because magistrates chose to keep most cases in the youth court. The panel would be better able fully to involve the young person and the parents in discussing the offence, its impact on the victim and the steps that should be taken to make amends and to ensure that there is no repetition. In the formal proceedings of the youth court, young offenders and their parents often fail fully to understand what is happening. The legal procedures can hinder the process of young people and parents speaking and contributing fully to the discussion. Drawing up a contract could concentrate on the best course of action to prevent re-offending, including attention to the welfare needs of the young person and his or her family, such as family counselling, educational measures and help to overcome drug abuse.
Giving magistrates complete discretion runs the risk of wrecking this imaginative new development by starving the panels of referrals. However, there may be a case for giving the courts a more limited discretion than that suggested by the later amendment. The strongest case for discretion relates to minor cases where a conditional discharge might be appropriate. Will the Minister consider the "third way" between the Bill as it stands and the amendments that are likely to follow? That would be to insert in Clause 1 an additional ground upon which the court would not be required to refer an offender to a panel. The wording might be to the effect that the court is satisfied that the offence is not serious and that there are special circumstances which make a conditional discharge the appropriate sentence in all the circumstances. Certainly, courts could be required to give their reasons for reaching that conclusion.
I consider mandatory sentencing to be more objectionable when it requires a court to pass a more severe or onerous penalty than it would think right if it had unfettered discretion, and the requirements of a contract could be more onerous than a conditional discharge. However, the same objections do not apply to cases where a young person is mandatorily diverted to a youth referral panel instead of receiving a community sentence such as supervision, probation, tagging or a community service order. A more limited amendment

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on the lines suggested would not run the risk of undermining the highly constructive proposal contained in Clause 1. I beg to move.
The Earl of Mar and Kellie: My Lords, my noble friend Lord Dholakia tabled an amendment which will add a tiny discretion to the referral order process. That discretion—to discharge the case conditionally as well as absolutely—will enable the magistrates to deal effectively and appropriately with very minor offenders. In so doing, it will avoid clogging the youth offender panel system with young offenders—perhaps I really mean young people—who have a non-existent degree of criminality.
Should the magistrates' assessment be wrong about the degree of criminality that is or is not developing in the young person, the referral order is still available should a second offence occur. I support my noble friend's amendment.
Lord Campbell of Alloway: My Lords, there is a world of difference and a fundamental distinction between discretion to make or not to make the order which is the subject matter of the next amendment, Amendment No. 2, and the discretion with which this amendment, Amendment No. 1, is concerned as to whether to make an absolute or a conditional discharge. The problem with the type of distinction concerned with the subject matter of Amendment No. 1 is that there is an inherent element of contradiction. Indeed, it is the type of amendment which could, in effect, from a practical point of view, damage the working of the experiment which, on its merits, is wholly supported.
Baroness Carnegy of Lour: My Lords, I listened carefully to the noble Lord, Lord Dholakia, as he moved his amendment. It was most interesting. Can the Minister tell the House, for the benefit of people like myself, what kind of conditions might be attached to a conditional discharge in these circumstances so that we can see to what extent the amendment would affect the issue?
Viscount Tenby: My Lords, I congratulate the noble Lord, Lord Dholakia, on the ingenuity of his amendment which, to some extent, also embraces the following amendment which stands in the name of, among others, the noble Lord, Lord Windlesham.
On the subject of absolute and conditional discharges, speaking from my own experience as a magistrate, perhaps I may point out that absolute discharges are rare whereas conditional discharges are given every day of the week and have a useful purpose in tying in the offender to a period of behaviour of, say, 12 months or even two years in some cases.
We must be careful with regard to youth offender panels because they will be committing youngsters who have committed and pleaded guilty to a first offence which is not very serious in nature. I am thinking of criminal damage, such as graffiti and painting on walls or something of that kind. If, as
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one will have to do under the terms of the Bill, one has to commit such an offender to a youth panel with its associated headmasters, criminal psychologists, magistrates and everybody else, that will take quite some time just when we are trying to fast-track the time between the commission of a crime and the execution of its sentence. At the moment, such a person would appear before a youth court and would probably be given a reparation order. That would take about 10 minutes as opposed to the three weeks of the protracted process involving the youth panel.
However, having said that—I come now to why I find the amendment in the name of the noble Lord, Lord Windlesham, so difficult and why I have a great deal of angst about it—Amendment No. 2 would drive a coach and horses through the Crown jewel (if I may mix my metaphors) of this Bill, which is the establishment of youth offender panels. Therefore, I take a certain position on that amendment which I shall relate to the House when we reach it.
With regard to the gallant attempt of the noble Lord, Lord Dholakia, to try to circumvent that, I am not really sure whether confining this amendment to absolute and conditional discharges would entirely do the job that the noble Lord wants it to do.
Lord Cope of Berkeley: My Lords, I too sympathise with the ingenious amendment tabled by the noble Lord, Lord Dholakia, in its extension of the discretion of magistrates. However, my own view, on which I shall expand a little later, is that it is not as satisfactory as the more complete extension of discretion which is represented by Amendment No. 2 in the next grouping.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, the noble Baroness, Lady Carnegy of Lour, asked me to answer a specific point and I am happy to deal with that immediately. A conditional discharge is simply a discharge which is given to an offender on a plea of guilty or a finding of guilt; the condition being one of not reoffending during the period of the discharge. As the noble Viscount, Lord Tenby, indicated, they often run for one year and sometimes for two years, but the requirement not to reoffend is the only condition. If the offender reoffends within the period of the discharge period, he or she is taken back to court and may be dealt with for the original offence. In that sense, perhaps the term "conditional discharge" is capable of being misleading. A conditional discharge is as simple as I have described it.
I am grateful, as always, for the careful, patient and, indeed, seductive way in which the noble Lord, Lord Dholakia, moved his amendment. I have said on several occasions that the introduction of referral orders and youth offender panels is intended to be a fundamental shift in the way in which we deal with young, first-time offenders. I entirely agree; with the description given by the noble Viscount, Lord Tenby. This is not intended to be another sentencing option. It is a deliberate policy decision that, where the referral conditions are met, no other disposal should be available to the court.

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The exceptions are those which the noble Lord indicated. One envisages that the more common exceptions would be an absolute discharge or a custodial sentence. An absolute discharge may well be appropriate where there is technical guilt but perhaps the absence of any significant fault. A custodial sentence must remain available for those where the offence is sufficiently serious and/or there is a need to protect the public. We believe that there are strong and persuasive reasons for allowing the court that discretion in those circumstances.
We do not believe that there is a compelling argument to include conditional discharges. The problem with conditional discharges—this is why I am so grateful to have the opportunity to reply to the noble Baroness—is that they often give the impression to both the public and the offender that the offending behaviour is of no real consequence. A referral order is designed, and is intended, to be a proactive intervention—a conditional discharge is not that—which focuses on the needs of the young person in diverting him or her from further offending.
An interesting aspect of a referral order and its consequences is that it is internally flexible. That is the key to it. Therefore, as a very wide variety of circumstances will lead to such an order being made, those who devise the contract can approach the matter flexibly and focus on the offender. In other words, following an appropriate and wide-ranging inquiry, they will devise a contract which will assist the offender not to reoffend. I think that that is the policy difference between the noble Lord, Lord Dholakia, and I. We have discussed this matter on a number of occasions and I am bound to say that I remain unconvinced. If the noble Lord wishes to press his amendment, I invite your Lordships not to assent to it for the reasons that I have briefly given.
Lord Dholakia: My Lords, I thank the Minister for his response to the amendment which I tabled partly as a result of a meeting that I attended recently of the All-Party Group on Penal Affairs. The extent to which we tend to put mandatory provisions in our legislation is a matter of serious concern. Therefore, I am not in the least surprised by that response. I hope that the noble Lord, Lord Windlesham, will forgive me for saying that if this is the stance that the Minister is going to take on other amendments, we shall not get much further with this. We should seriously consider whether, as a matter of natural justice, we ought not to forget that from time to time discretion can play a very important part. When those discretions are limited, or to an extent controlled, then it will give justice a bad name.
I have heard everything. I shall certainly keep an eye on this matter and table Questions over time as to how the provision is working. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
Lord Windlesham Lord Windlesham moved Amendment No. 2:
Page 1, line 21, leave out from ("court") to ("to") and insert ("may order the offender").
The noble Lord said: My Lords, two weeks ago, in replying to a lengthy and important debate at Report stage about restrictions on evidence in rape trials, the noble Lord, Lord Williams of Mostyn, remarked on the absence of unanimity on the part of the movers, both as to the nature of the problem addressed and the proposed solution. In contrast, Amendments Nos. 2, 3 and 4 have a transparent simplicity and directness; indeed, they go to the heart of the criminal process and the principles which uphold it.
The amendments would have the effect of conferring on a magistrates' court a discretionary power to refer to a youth offender panel young first offenders under the age of 18 who do not deserve a custodial sentence. The policy of diverting suitable young offenders away from custody has been, for many years, a Holy Grail of the penal system. It is easy to proclaim, but it is very difficult to achieve in practice. The referral orders in Clause 1 of the Bill are a novel form of sentence designed to provide an opportunity for a young person, accompanied by his or her parents whenever possible, or other representatives, to review their offending behaviour with the help of a professionally qualified panel. An agreement or "contract", in the wording of Clause 8 will then be sought with the offender, containing a number of provisions designed to prevent further offending.
All of that is well thought out and offers some hope of preventing a repetitive cycle of offending. It is inevitable that there will be disappointments—perhaps many disappointments—but there should also be successes. So, in short, it is an experiment, and one that is well worth pursuing. I emphasise to your Lordships that nothing in this amendment is intended to contest the policy objectives of keeping as many selected young people as possible out of custody, which we know in many cases is more likely to harden their criminality rather than reduce it. I am confident that these objectives are widely accepted in the House; indeed, in the previous debate the noble Viscount, Lord Tenby, referred to these proposals as the "Crown jewels" of this part of the Bill.
There is therefore only one matter which divides noble Lords who support this group of amendments and the Government who I anticipate will not. It does not relate to the merits of the proposed new disposal in any way. It relates to the central question of whether it should be a mandatory or discretionary decision by the magistrates' courts.
The arguments against mandatory sentencing are well known and will need to be repeated often if the gradual slide down the slippery slope of the past few years is to be resisted. Mandatory sentencing is one of the most fundamental changes of direction in criminal policy for a long time; and it is of the greatest importance. It should be on the facts of each case and the characteristics of the individual offender

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before the court that magistrates, like judges, decide on the type and severity of the disposal at the conclusion of a trial. The fact that a referral order differs from a sentence in a conventional sense does not alter its nature as a compulsory disposal. As the Bill is drafted, no discretion is left with the magistrates. According to Clause l(2)(b) they must,
"sentence the offender for the offence by ordering him to be referred to a youth offender panel".
This amendment would alter the wording to read, "the court may order the offender to be referred to a panel". Such a simple amendment would render unnecessary the dense thicket of Clause 2, which then goes on to define which young offenders will be eligible for compulsory referrals and which would not.
In that regard the draftsman has had to invent a new sub-category to get around an awkward corner. Under the Bill, compulsory referral follows if an offender, who has never previously been convicted of a criminal offence or been bound over to keep the peace or be of good behaviour, pleads guilty to the offence and any associated offences. But what happens if he is inconsiderate enough to plead guilty to one offence but not to others? Is he or she then eligible for referral or not? That is the sort of thing which causes the computer to crash. The draftsman avoided such an outcome by saying, in elaborate language, that in such circumstances, but only in those circumstances, the court had better have some discretion after all to decide whether or not it would be appropriate to make a referral order. But that is confined narrowly to the question of eligibility where a young person has pleaded guilty to one offence, but not to some other offences. This is an example of how a blanket provision, allowing only for minutely prescribed statutory exceptions, leaves no power in the hands of the magistrates' court to use its own judgment, or its common sense, in deciding whether or not a young person is suitable for this promising new disposal.
I conclude with this observation. There is a tendency of which many of us in this House are aware—it is to be seen in the recent Crime and Disorder Act as well—for the Government, having worked so diligently and thoroughly in developing imaginative new policies on criminal justice, to insist that every provision should be implemented in one specific way. Such a desire for total control is not necessary; indeed, it is potentially dangerous. It introduces undesirable rigidity into the administration of justice. It diminishes the responsibility of sentencers and sooner or later it is inevitable that some hard cases will result. Why is that? Because human behaviour will fail to fit into a predetermined pattern. I beg to move.
Lord Carlisle of Bucklow: My Lords, since I was not able to take part in the earlier stages of the Bill, I should perhaps make clear to the Minister that although I want to say a few words in support of the amendment moved by my noble friend Lord Windlesham, I wholly support and approve of the
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general thrust and principles of Part I of the Bill. I fully support the powers of the court to refer people to the youth offender panel.
This Bill contains the framework for imaginative means for dealing with young offenders. I fully support the suggestion that through reparation young offenders should be made to face up to what they have done. I believe that is an admirable move towards tackling the causes of crime among young people. I have read the speeches made by the Minister at each stage of these debates and I applaud what he has said about the purpose of the Bill. However, I believe there is a principle here as stated by my noble friend Lord Windlesham. The principle is surely that the courts should always have the necessary discretion to allow them in all the diverse kinds of cases and as regards the diverse kinds of offenders who appear before them to do that which they believe is justice.
I am opposed to mandatory sentences. As I say, I believe this is a matter of principle. I have made clear on other occasions in this Chamber during the passage of other Bills my strong opposition to mandatory sentencing. It could be said that this is only a small intrusion into the principle of mandatory sentencing, but nevertheless it is an intrusion. I understand that the noble Viscount, Lord Tenby, fears that if this amendment is passed it would drive a coach and horses through the purpose and intention of Part I of the Bill. I put the following point to the noble Viscount. Does that not in a way show a lack of confidence in those who serve as magistrates under the noble Viscount and are members of the Magistrates' Association? I believe that in the vast majority of cases covered by the present proposals, referrals will be made I believe that magistrates should be encouraged to make referrals, just as in sentencing in the higher courts the Court of Criminal Appeal lays down guidelines for courts to follow.
I believe that inevitably there are bound to be cases which although they meet the criteria set out for compulsory referral do not require it. I cannot see what advantage there is to those who are referred that delay should be caused by the referral of cases that need not be referred. I believe that this Bill would be a better Bill if it retained that degree of discretion. It is for that reason that I support my noble friend Lord Windlesham in what he has said.
3.45 p.m.
Lord Thomas of Gresford: My Lords, I made it clear at Second Reading of this Bill that I was a wholehearted supporter of the youth offender panels that are now proposed. Indeed I made the comment that I felt the measure was far too restrictive and that the youth offender panels should be introduced—as in Scotland—as soon as possible to cover the whole range of juvenile offending. The Bill as now drafted has a rigidity about it which is completely unacceptable. I am wholly a supporter of the principle to which the noble and learned Lord, Lord Carlisle of Bucklow, referred a moment ago; namely, that discretion must remain with the sentencer, the

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magistrates' court. As experience shows, it is impossible for this Parliament to envisage all the circumstances which can arise which bring a young person before the court. It is right that a magistrate who knows all the facts should have the opportunity of imposing such order or sentence as he thinks fit.
I recall the history of the suspended sentence. When the concept of suspended sentences was first introduced, so anxious were the promoters of that idea to ensure that it took a hold upon the judiciary of this country that the sentences were made compulsory. However, it was not long before the injustices which arose from compulsory suspended sentences became clear. As a result of that there was a relaxation of the compulsory conditions. The irony is that the previous government were anxious to tighten up sentencing, but they effectively removed the suspended sentence from the armoury of the court. It can now be imposed only in exceptional circumstances which have been defined as to be so far outside the normal run of things as to occur rarely indeed. Since those provisions were brought in I can recall only one case in my experience where a suspended sentence has been imposed.
While rigidity is imposed upon the courts it is curious to note that under Clauses 2, 3 and 4 there is a built-in mechanism for the Secretary of State, by regulations, to change the compulsory and discretionary referral conditions which are set out in Clauses 1 and 2. Therefore as this Bill comes before us it is already envisaged that changes will have to be made. If one looks at Clause 2(4), one can see that the Secretary of State at some future time has to consider such matters as the offender's age, how he has pleaded, what he is being convicted of, his previous convictions and so on. Therefore the mechanism for change in order to cope with the injustices that will arise is built into the Bill. Why should the Secretary of State have this power by regulation to do something at a future stage when a magistrate who has the young offender before him can impose the necessary order or sentence by which justice will be done? It seems to me that the Government's thinking on this matter is far too rigid. I support these amendments.
Lord Taylor of Warwick: My Lords, I support the proposed amendment of my noble friend Lord Windlesham. I make it clear that I welcome the proposal to refer young, first-time offenders to youth offender panels. I regard that as a positive alternative to the other disposals available to magistrates. However, it is the compulsory nature of the referral order which I oppose. I share the view that the order should be optional and not mandatory. As presently drafted, the clause will be seen as an attack on the discretion of magistrates. They will be given no choice and no chance to exercise their own view. I ask the rhetorical question: who is in a better position to decide a case than magistrates who hear the individual facts of the offence and the personal background of the offender?
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In Committee the Minister described the importance of the youth offender panel as the "triggering of an inquiry". But in seeking to exercise their discretion as to sentence, magistrates are already able to order a variety of reports, including, of course, one from the Probation Service. That would require a quite proper delay during which time a detailed inquiry would be carried out. I believe that one of the strengths of our Lay Bench in particular is that it comprises responsible people drawn from a variety of backgrounds. I particularly welcome the fact that there are now more magistrates from the ethnic minority communities. They should be encouraged, not discouraged, to use their own common sense and judgment. As presently drafted, this measure is the antithesis of that.
I once represented a youth in Birmingham who was before the court for the first time. He had boasted that he could do 100 meters in record time. That sounds impressive, but he was talking about breaking into electricity meters! He was on a determined course and to pursue a youth panel contract with him would have caused more harm than good. At the very time when this Government are trying to encourage more people to come forward as magistrates surely it is unwise to give the signal that they cannot be trusted to use this new form of sentence intelligently.
Baroness Carnegy of Lour: My Lords, at the risk of producing a discord in this great harmony of conviction that the magistrates must have discretion in this matter—I have to say that I am not familiar with the working of the youth courts south of the Border and I do not in any way pretend to be—it seems to me that what the Government are proposing is not the imposition of a rigid rule on magistrates but the moving of the responsibility for the flexible approach to what happens to a young offender from the magistrates to the panel. It is completely moving it, with limited exceptions.
The problems of keeping first offenders from offending again have been intractable and very difficult to solve. It seems to me that there is justification in trying something quite different. If the magistrates have discretion a particular sentence would be quite different, but they would still possibly do what they have done before. It seems to me—I may have misunderstood—that young people will come to know that if they offend for the first time they will, virtually inevitably, find themselves before a panel having to discuss in a way that they have never been able to discuss with magistrates what they have done, why they have done it, whether they should make reparation and what they will have to do in order to get out of the bit, as one might say. They will have to do that possibly with a parent or two parents present. They will have to do all the things which are described in the Bill. If that is not the inevitable consequence of a first offence they will see it as they saw it before.
I think there is something in what the Government are suggesting. I think the traditional defence of the freedom of a magistrate to do what a magistrate wills

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is not the right response to what the Government are proposing at the moment. I do not think—unless I change my mind in the course of the discussion— that I will be able to support my noble friend's amendment.
Lord Lane: My Lords, the sad fact is that the mandatory sentence or mandatory disposal order will inevitably be a potential miscarriage of justice. The sentencing court has the difficult task of trying to reconcile all kinds of apparently irreconcilable matters. It has to determine questions of deterrence, questions of retribution, questions of punishment, questions of rehabilitation and so on. Having thought all those things out, together with the situation of the victim and the situation of the offender, the magistrate or court sentencing comes to a conclusion as to what is just and what is fair; solution "X". Then, notionally, they turn to the statute book to see whether they are allowed by statute to do what they want to; namely, sentence "X". If the statute says "yes" then, fair enough, there is no need to have the mandatory order. If, on the other hand, they are prevented from doing what they consider to be just and fair by the terms of the mandatory sentence, they are then bound to do something which is unjust or unfair. That is not a situation into which any court—a magistrates' court or otherwise—should, respectfully, be put.
It may be that this is a very small example of the mandatory sentence, but, as has already been stated, it is unfortunately an indication of the way things are going. One hoped from what one had heard when the present Government were in opposition that perhaps mandatory sentences would disappear altogether—as indeed they should—but, no, matters have become steadily worse and this is an indication of a further slide, as has been described, down the slope. I suggest, respectfully, that this amendment should be supported.
Lord Renton: My Lords, I firmly support the amendment moved by my noble friend Lord Windlesham. The main issue that arises of course, as he said and as others have said, is whether there should be a mandator)' power on the part of the court to refer a case to a youth panel. I would add only one thought. The noble and learned Lord, Lord Lane, with all his experience as Lord Chief Justice, my noble friend Lord Carlisle of Bucklow and all noble Lords who have judicial experience, whether current or in the past, know that the circumstances vary, that the unexpected always arises and that ever to fetter the discretion of the court is a mistake. The court is there, it sees the accused and hears all the circumstances. For Parliament to fetter the discretion of the court would lead, occasionally, to an injustice. I therefore warmly support the amendment for that main reason.
There is another issue—a less important one, I grant your Lordships—and it is this: what is a sentence? The Government have put forward the concept that if a court instead of imposing custody, a fine, a bind over, or an absolute discharge, refers the matter to a youth panel. In the wording of the Bill that is a
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sentence. I strongly suggest that this is not what a sentence is. I think, therefore, that, purely from the drafting point of view, these amendments also should be supported.
Viscount Tenby: My Lords, I always thought that this amendment would give me a certain amount of angst and I have had it by the bucketful following the lucid and very fair introduction of his amendment by the noble Lord, Lord Windlesham. I also appreciate that I would get into trouble with my own association, a point that has been confirmed by the noble Lord, Lord Carlisle of Bucklow. However, I suppose I must press on as best I can.
At an early stage of the Bill, when I discussed the fact that this clause related only to those young offenders who had pleaded guilty to a first offence, the Minister—I hope I am right in this; I have not checked it—was honest enough to say, "Well, yes, at a future time that quite rigid class could be extended by order". In other words, one could get a situation where the ground is being cut from underneath the legally and judicially appointed juvenile court and magistrates' Bench and taken over by what I can only describe, in a certain context, as a non-judicial body; that is, the youth panel. That does present difficulties.
However, I have to come back to my one very big reservation. I am not entirely sure that the moment one gives this discretion magistrates will not be tempted to hang on to the cases all the time, a point made by the noble Baroness, Lady Carnegy of Lour. That is the big problem. I think that the whole concept of this youth panel treatment of offenders is so important that I am not sure that I am prepared to take that risk.
Lord Campbell of Alloway: My Lords, 1 spoke at some length during the previous stages of the Bill and I think the noble Lord, Lord Williams of Mostyn. and I came to a gentlemen's agreement that we: had heard enough of what we had to hear from each other and the only sensible thing to do, where there was a position of amicable disagreement as a matter of principle, was to take this matter to the opinion of the House. Today, I should like to try to persuade the noble Viscount, Lord Tenby, that his fear that the amendment could drive, I think he said, a carriage and four or a coach and horses through the Bill is, with the greatest respect to him, misconceived.
Those of us who support this amendment believe that the experiment is a very good one and is well worth having. All we wish to do is to improve the way in which it is administered to the individual young offender. In view of the way that this proposal was put by the noble and learned Lord, Lord Lane, I hope that the noble Viscount can see, from the view of a former Lord Chief Justice, that we are not driving a carriage and four through this provision; we are seeking to improve the way in which it is applied in practice.
The only other matter is to seek respectfully to answer the concern of my noble friend Lady Carnegy. Naturally—I say this without a hint of patronage or

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any offence—not being intimately concerned with the theory or practice of crime and punishment, my noble friend is concerned with the deterrent effect of an automatic sentence. "They will know", she says, "these young people, that if they do this, this is what will happen to them".
Even as a Recorder, which is a fairly unimportant form of judicial office compared with that of the Lord Chief Justice, one had to be very careful about deterrent sentences. For all kinds of reasons they do not work in practice, even if one has a discretion to impose them. But where they are automatic, they are as dangerous as dynamite. They can impose manifest injustice. For that reason I hope that my noble friend can, on the merits of the argument that she has heard today, take the view that she could conscientiously support this amendment as seeking to improve what is a first-rate and necessary experiment. The inevitable possibility of error is a deprivation of due justice. That element will persist unless the amendment is accepted. No reasoned argument has been advanced in favour of a mandatory regime, other than by my noble friend Lady Carnegy, as affording any practical advantage over a discretionary regime.
There is no reason to suppose that magistrates, justices of the peace, are either incompetent or incapable of exercising their discretion in the proper manner. Is it not wrong in principle for the Government to interfere with the exercise of judicial discretion in any context? The Bill, for no good reason, derogates from that principle without any convincing justification whatever. I have not heard any such justification yet from the noble Lord, Lord Williams of Mostyn; perhaps we shall hear it today. It is said that the proposal is an experiment. That will not do. It is said by the noble Viscount that the amendment would drive a coach and horses through the provision. With respect, that will not do. It has been shown that the working of the experiment would be enhanced if the amendment were accepted. It is a wholly novel and unnecessary imposition to have a mandatory sentence for the reasons that have been given. I commend this amendment, to which I have put my name.
4 p.m.
Lord Warner: My Lords, perhaps I may remind noble Lords of the context of these clauses relating to youth offender panels. I suggest that this set of clauses represents unfinished business from the Crime and Disorder Act. The Crime and Disorder Act provided a new principal aim for all those working in the area of youth justice; namely, to prevent offending. That is no less an aim for those working in the youth courts than it is for those working in youth offending teams or juvenile secure facilities. It means that we are introducing a concept of effectiveness of sentence, as well as the elements of justice and fairness.
These provisions are an attempt to introduce the concept that we want a break with the past. We ought to be concerned about the point raised by the noble Viscount, Lord Tenby; namely, whether magistrates
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will be tempted to hang onto cases rather than make that break with the past and refer people who meet the referral order conditions to youth offender panels. I suggest that we should have to be heroically optimistic about human nature if we did not believe that magistrates would be tempted to hang on to cases rather than make those referrals.
Clause 2 of the Bill already includes a considerable number of conditions which must be met before a case is referred to a youth offender panel. Magistrates will already have to exercise their discretion and judgment in applying those conditions to particular cases. I suggest that that is adequate provision for judicial discretion, and that we are seeking to give life and intent to the principal aim in the Crime and Disorder Act of preventing offending. If we were to accept this amendment, we should be weakening the break with the past that these clauses seek to achieve. We should be wise to resist this amendment.
Viscount Brentford: My Lords, I wish to make a couple of points on this group of amendments. First, I strongly support the remarks of my noble friend Lord Renton about removing the word "sentence" from this part of the clause. I believe that an "order" should be made; that would give the right impression.
Secondly, my aim, which is for the maximum number of youth offenders to be referred to a youth panel, would be hindered by this amendment. I certainly look forward to the time when regulations are laid for the widening of the use of youth panels. While I do not consider that the amendment drives a carriage and four through the Bill, I also do not consider that the use of the compulsory order is "dynamite", as my noble friend said.
It seems to me that the situations in which an order must be made are very strict and limited in their use. I therefore have doubts about the amendment so far as the reduction of that compulsory element is concerned. We have discussed mandatory sentencing. However, I do not believe that this context is the same' as the context in which we normally discuss mandatory sentencing. It is rather like a red rag to a bull which is side-tracking us from our aim here. As others have said, that aim is to break with the past as regards youth offenders. I should like to see the maximum number of first time offenders being passed immediately to the youth panel. I see no reason for removing the very limited compulsory part of the provision. There is a discretionary part where there is scope for doubt. Therefore, I wish to see the limited part remaining compulsory.
Lord Renton: My Lords, before my noble friend sits down, perhaps he would allow me to intervene. If the amendments are accepted there will still be the opportunity for the court in a non-mandatory way to refer as many cases as they like to the youth panels.
Viscount Brentford: Yes, my Lords, that is obviously correct.
Lord Hylton: My Lords, I speak as a mere layman in these matters. Nevertheless, I wish to say to my

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noble friend Lord Tenby and others who also have doubts about the amendment that if Clause 2(3) and (4) remain in the Bill the Secretary of State will retain the power to deal with a situation where some magistrates may be tempted to hold on to cases which they should not in the general context of the Bill. I support the amendment and trust that the Government will accept it.
The Earl of Mar and Kellie: My Lords, I believe the amendments will make it too easy for magistrates to avoid making a referral order. Unlike within the children's panel system in Scotland, the young offender in England and Wales will only get one chance of a youth offender contract. There is a danger that young people will slip through the net. There are so many magistrates that I fear it will be too difficult to have a uniform approach to ensuring the imposition of a referral order for a second and potentially qualifying offence.
I believe that in 1968 the 100 sheriffs were happy to give up their juvenile court duties which are now restricted to proving cases where the grounds of referral in the children's panel have been disputed. I wonder whether the magistrates are being a wee bit touchy. I cannot support the amendments.
Viscount Runciman of Doxford: My Lords, I regret that I also was unable to attend the House during the early stages of the Bill. I am conscious that my experience of the criminal justice system is limited to chairing the Royal Commission from 1991 to 1993, whose terms of reference explicitly—and we were glad that it was so—excluded sentencing.
I feel bound to speak in support of the amendment. There is a point of principle here. I have not been persuaded by speakers who have opposed the amendment that it is not a point of principle—that it is not an important point of principle or that it does not matter that it is a point of principle—because we are dealing in a different context with something which is not quite a sentencing option in the ordinary sense or dealing with relatively minor offences.
I find it difficult to understand the objections to the amendment along the lines that the Bill as drafted is not imposing a rigid rule. It is imposing a rigid rule and I entirely endorse what many speakers said—including the noble and learned Lord, Lord Lane, who speaks with far more authority than I could ever do—about the dangers of seeking to fetter the discretion of the courts by statute anywhere in the system, however trivial or serious the offence and whatever the nature of the offender. It is precisely because of the enormous variation in circumstances across the cases that come before the court that it is not only dangerous in principle but counter-productive in practice to attempt to fetter the discretion of judges or magistrates by statute. For that reason, I support the amendment by the noble Lord, Lord Windlesham.
4.15 p.m.
Lord Cope of Berkeley: My Lords, this point was discussed on amendments that I moved at the Committee
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stage and again in the modified form at the Report stage. I support the new formulation moved by my noble friend Lord Windlesham.
In Committee, the Minister saw compulsory referral as what he described as a fundamental point of principle. It was the opposite point of principle from that just set out by my noble and learned friend Lord Carlisle. The Minister's principle seemed to be that magistrates should not be allowed to deal with first offenders who plead guilty to all the offences for which they are before the court. I do not think that that is a good or fundamental principle.
Throughout the Bill we have all supported restorative justice which will be implemented by these panels. We all hope and believe that it will work well and in due course will be extended, if that seems to be right.
The Minister said in Committee that restorative justice could be obtained only by a panel. I accept that, too. But his next sentence was:
"That is why it is mandatory"—[Official Report, 18/1/99; col. 379.]
That did not seem to me to follow at all from the earlier sentence. I believe that magistrates are the best people to decide in each case, and in the particular circumstances of each case, whether restorative justice through the panel system is the best sentence to pass. I use the word "sentence" with due deference to my noble friend Lord Renton. It seems to me that whatever word might be used in the legislation— I think the official word for it is "disposal"—many of those youths who are affected by it will see it as a sentence. It imposes, or in many cases will impose, a financial penalty on them. It imposes, or can impose, restrictions on their movements and so on. It has the nature of a sentence in the way it will ultimately work through the contract system.
I agree that the contract is supposedly voluntary, but it is only voluntary if the young person does not wish to go back before the magistrates for refusing to agree to a contract at all. It has something of the nature of a sentence within it. That is one reason I think it best for the magistrate to make the judgment in each case.
The Minister also said at another stage in our discussions that pilot schemes would be necessary in different parts of the country and then the model would be developed until it covered the whole of England and Wales. That is entirely correct and presupposes that the model will be improved. In the early stages it seems to me that magistrates will in some cases be a little reluctant to send all cases on. But as they gain more confidence that the panels work and as the panels themselves work better as a result of the pilots and of experience, magistrates will gain confidence in the panels and we hope they will see that they work. They will send more and more eligible young people to the panels to be dealt with by them.
After all, the Bill gives the Secretary of State discretion, by allowing the conditions for both compulsory and voluntary referral to be varied by order at a later stage. We all believe that they will be extended, as both the noble Lord, Lord Thomas and the noble Viscount, Lord Tenby, pointed out. They may be extended a very long way; well away from first offenders, for example. There is nothing to say that ultimately this will not be extended to every offender under 18. In theory, under the Bill it could be

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compulsory for every offender, if the appropriate orders were laid by the Secretary of State, although I do not think that is likely to happen.
The Minister is also giving magistrates a little discretion, as has been pointed out, in the sense that they can impose a custodial sentence at one end or an absolute discharge at the other end, or a hospital order. However, the Bill gives no discretion in between. The amendment seeks to remedy that fault. I believe that the magistrate should have discretion. I also believe that the panels would work better, particularly in the early stages, if the magistrates used their discretion to send what they thought were the most appropriate cases to the panels, where they would be most effective, so as to build up experience and make the panels gain experience and work better. We want them to work better; we want them to work well; and that is why I think we should trust the magistrates and support this amendment.
Lord Williams of Mostyn: My Lords, essentially, this has nothing to do with whether or not one trusts the magistrates. Perhaps I might be allowed a personal observation, which is to say how great a pleasure it is to all of us to see the noble and learned Lord, Lord Lane, as former Lord Chief Justice, contributing to this debate from his usual place, despite the fact that I respectfully disagree with his view.
When one listens to a debate of this kind, one appreciates the very great care and thought that has gone into every contribution. A thought not entirely ignoble also struck me, which is how, on listening to various contributions, one reflects how deeply conservative many lawyers are, even some who have been former Home Office Ministers. It was not until the noble Baroness offered her contribution that I said, not even sotto voce but to myself, "at last"—because here was a contribution which not only supported the stance that I was about to adopt, but which actually took an independent reflective view of what was being proposed. There was no shibboleth, no historic baggage: just a calm, reflective view.
One or two myths have been regularly resurrected, and they ought now to have a decent and fairly prompt burial. The objection to mandatory sentence as a practice in principle is as identified, I think, by a number of your Lordships—certainly by the noble and learned Lord, Lord Lane, and also by the noble Lord, Lord Thomas of Gresford. They were pointing, I think, to the essential disadvantages as being undue rigidity—I think I quote— and possible injustice.
Perhaps we may spend a moment looking at the scheme. The scheme in fact requires in most circumstances—not where a custodial sentence is appropriate and not where an absolute discharge is right and just, but in most circumstances—the youth court to deal with those under 18 who are a particular category of offender: they are first-time offenders who have pleaded guilty. Notoriously, as the noble Lord, Lord Warner, was indicating, that is the class of offender, attention to which is likely to be most productive, to use his phrase, in preventing re-offending.
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They have not become accustomed to crime. They have not been playing the system, because they have pleaded guilty. I take entirely the point that was made by the noble Earl, Lord Mar and Kellie, that this is a distinct category of young offender, as regards whom our purpose must be to have an intervention at the earliest possible stage. I come back to the objection, putting it in inverted commas, "in principle", which I mentioned a moment or two ago. The point of this referral system is to afford abundant flexibility: indeed, I suggest, accurately I believe, more flexibility than the courts have at present.
The power is there to create an appropriate forum which is rather less legalistic than the magistrates can be—it is not the magistrates' fault: it is the rigidity of the present system—with more information, pace the noble Lord, Lord Taylor of Warwick, more informed input and knowledge than the youth court can presently be given. Why is that? It involves the young offender directly in the development of a contract which is to affect his life. Again, notoriously, large numbers of young offenders in this class have never actually been obliged—I use the word deliberately—to have any responsibility for their lives, nor encouraged appropriately to think that responsibility truly lies with them. That is why they re-offend.
The decision, which will be obligatory in most cases, is that the young person will be obliged to go to the panel. It is much more difficult, I contend, for a young offender to have to look at his or her own behaviour, to examine properly the consequences of what, after all, is a crime. Even though the crime may have had a label which renders it apparently insignificant as a statistic, many of these crimes are not at all insignificant if one considers the offender. It obliges them for the first time to do that difficult thing: actually to look at what they have done and recognise the consequences.
That is why we are looking for a new device. It is the crown jewel. It is a forum which involves—sometimes obliges—parents, guardians, other family members, other influential adults and, where they wish it after appropriate thought, the victims also. That is a spectrum which is not available to the magistrates, and because one has the flexibility of the ultimate remedy—that is the contract— the flexibility of the ultimate remedy is in fact what tells against the apparently attractive proposition that this is inflexible and over-rigid.
It is not. There will be infinite flexibility available to the panels: I repeat, far more than the magistrates have at present. This is intended to be a fundamental shift in the way in which we deal with young people. Should anyone ask the question: "Is such a shift required?", I would simply say "Look at the figures; look at the system that we have at the moment. It has not been working over the past 25 years. "
We believe that if one has this obligatory reference—it does not matter for the present purpose whether one calls it, pace the noble Lord, Lord Campbell of Alloway, an order or a sentence—that obligatory reference is intended to be restorative, in the sense that the noble Lord, Lord Cope, indicated. He said that restorative justice is not open to the magistrates, but we require panels in every case to consider that aspect of restorative justice. Is it in

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fact taking away all discretion from the court? No, it is not. If one looks at Clause 3(1)(c), the length of the period is for the determining or sentencing court; namely, the youth magistrates' court. It is a period of from three to 12 months, so that flexibility and lack of rigidity is there even at the earlier stage. Perhaps it is worth bearing in mind that if one looks—
Lord Renton: My Lords, if I may interrupt, it is under that provision that the noble Lord has mentioned that there must be three months in any event.
Lord Williams of Mostyn: My Lords, of course; that is why I said three to 12 months. I am not seeking to disguise that: I thought I had actually drawn attention to it. Three months to 12 months is the span which the magistrates have. It is a well-known conventional device in other contexts—for instance, probation orders, which have a maximum term which the magistrates can impose.
One needs to look at what happens in community sentences at the moment. If a court sentences to a community disposition at the moment the fine detail is not set down by the sentence in court. It is actually dealt with by probation officers and social workers on the ground. I repeat to your Lordships, because it is a point of some virtue, that the flexibility offered to the youth offender panel, in other words, the final forum of disposition, is infinitely variable and infinitely flexible to deal with every circumstance and every offender.
As the noble Lord, Lord Campbell of Alloway, pointed out, it is quite right that we have here a different approach. We believe that, after careful thought, we have got it right. That does not mean that we are undoubtedly correct, but I believe that we are. We are saying to magistrates that unless it is custody or an absolute discharge they are given the power of three to 12 months. After that the restorative contract that is designed fundamentally to avoid reoffending lies with the panel which will have the fullest possible opportunity to change human behaviour in young people. I hope that I have dealt with the objections of principle and detail. I cannot leave this matter without rejoicing at the new prospect, to me, of a bucketful of angst. The words of the noble Viscount very much remind me of wet Sunday afternoons in North Wales for which no better description than "a bucketful of angst" has ever been known.
4.30 p.m.
Lord Thomas of Gresford: My Lords, since the noble Lord makes that comment about North Wales (from where I come), is he seriously saying that to oppose mandatory sentences and to seek to uphold the discretion of the court is a deeply conservative attitude; and, if so, in what way?
Lord Williams of Mostyn: My Lords, obviously I have not succeeded in what I seek to say. What is truly, deeply and depressingly conservative is simply to have a slogan, attach it to a staff and to believe that that disposes of all rational alternatives. That is what is
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deeply conservative. Simply to say that mandatory sentences are wrong without looking at this very careful construction is, if not conservative, extremely blinkered.
Lord Windlesham: My Lords, this has been a long debate in which 16 noble Lords from all parts of the House have spoken. We have been discussing the amendment for about an hour. This shows that on a substantial issue of public importance noble Lords can make short speeches in which they are able to display the strength of their views. In view of the closing words of the reply of the noble Lord, Lord Williams, perhaps those on this side of the House would feel more comfortable if he substituted "conventional" for "conservative". I believe that that was the burden of the message that he wished to convey, and we should like there to be no misunderstanding about it.
This has been a non-party debate, as demonstrated by the divergent expressions of opinion from each part of the House. If it is not invidious to do so, and the noble Lord, Lord Williams, did the same, may I remark on the respect with which we listened to the views of the former Lord Chief Justice the noble and learned Lord, Lord Lane, and the Chairman of the Royal Commission on Criminal Justice, the noble Viscount, Lord Runciman. Both speak with unrivalled authority, and are wholly independent of any other speaker or party. I suggest that the force of their views should be taken into account when I ask noble Lords to express their opinion.
As was indicated earlier by my noble friends Lord Renton and Lord Campbell of Alloway, when this issue was raised by myself at Report stage there was a short exchange to the effect that Third Reading was the appropriate time for the matter to be discussed in greater detail. That has happened today and now noble Lords have the opportunity in the Lobbies to decide how it should be resolved.
4.34 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 144.

Division No. 1

CONTENTS

Addington, L.

Burnham, L. [Teller.]

Addison, V.

Butterworth, L.

Anelay of St. Johns, B.

Byford, B.

Annaly, L.

Cadman, L.

Astor of Hever, L.

Caithness, E.

Beaumont of Whitley, L.

Campbell of Alloway, L.

Belhaven and Stenton, L.

Carlisle of Bucklow, L.

Biffen, L.

Charteris of Amisfield, L.

Blaker, L.

Chesham, L.

Blatch, B.

Clanwilliam, E.

Bowness, L.

Clark of Kempston, L.

Brabazon of Tara, L

Coleraine, L.

Bridgeman, V.

Cope of Berkeley, L.

Broadbridge, L.

Cowdrey of Tonbridge, L

Brougham and Vaux, L.

Cox, B.

Bruntisfield, L.

Crickhowell, L.

Buckinghamshire, E.

Cross, V.

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Davidson, V.

Mountevans, L.

Denbigh, E.

Moynihan, L.

Dickinson, L.

Munster, E

Donegall, M.

Murton of Lindisfarne, L.

Downshire, M.

Napier and Ettrick, L.

Elles, B.

Newall, L.

Ferrers, E.

Norrie, L.

Fraser of Carmyllie, L.

Northesk, E.

Gage, V.

Nunburnholme, L.

Gardner of Parkes, B.

O'Cathain, B.

Glenarthur, L.

Onslow, E.

Glentoran, L.

Oxfuird, V.

Gormanston, V.

Pearson of Rannoch, L.

Harmar-Nicholls, L.

Pender, L.

Harris of Greenwich, L.

Peyton of Yeovil, L.

Hayhoe, L.

Poole, L.

Henley, L. [Teller.]

Rankeillour, L.

Higgins, L.

Rawlings, B.

Hogg, B.

Reay, L.

Holderness, L.

Rees, L.

Holme of Cheltenham, L.

Renton, L.

HolmPatrick, L.

Renton of Mount Harry, L.

Hooper, B.

Renwick, L.

Hooson, L.

Rodgers of Quarry Bank, L.

Hothfield, L.

Romney, E.

Howe, E.

Runciman of Doxford, V.

Hylton, L.

Russell, E.

Hylton-Foster, B.

Russell-Johnston, L.

Ilchester, E.

Sandford, L.

Ironside, L.

Sandwich, E.

Jopling, L.

Seccombe, B.

Kimball, L.

Selsdon, L.

Kinnoull, E.

Sharples, B.

Knight of Collingtree, B.

Shaw of Northstead, L.

Lane, L.

Shuttleworth, L.

Lauderdale, E.

Simon of Glaisdale, L.

Lincoln, Bp.

Soulsby of Swaffham Prior, L.

Lindsey and Abingdon, E.

Stanley of Alderley, L.

Linklater of Butterstone, B.

Steel of Aikwood, L.

Liverpool, E.

Strathclyde, L.

Lloyd-George of Dwyfor, E.

Sudeley, L.

Long, V.

Swansea, L.

Lucas of Chilworth, L.

Swinfen, L.

Luke, L.

Taverne, L.

Mackie of Benshie, L.

Taylor of Warwick, L.

McNair, L.

Teviot, L.

McNally, L.

Thomas of Gresford, L.

Marlesford, L.

Thomas of Gwydir, L.

Mayhew of Twysden, L.

Thomson of Monifieth, L.

Merrivale, L.

Trenchard, V.

Middleton, L.

Tugendhat, L.

Miller of Hendon, B.

Vivian, L.

Molyneaux of Killead, L.

Waddington, L.

Monro of Langholm, L.

Wilcox, B.

Montgomery of Alamein, V.

Winchilsea and Nottingham, E.

Moore of Wolvercote, L.

Windlesham, L.

Morris, L.

Wynford, L.

Young, B.

NOT-CONTENTS

Ackner, L.

Brightman, L.

Acton, L.

Brookman, L.

Ahmed, L.

Brooks of Tremorfa, L.

Allenby of Megiddo, V.

Bruce of Donington, L.

Amos, B.

Burlison, L.

Archer of Sandwell, L.

Carmichael of Kelvingrove, L.

Ashley of Stoke, L.

Carnegy of Lour, B.

Bach, L.

Carter, L.

Bassam of Brighton, L.

Chorley, L.

Blackstone, B.

Christopher, L.

Blease, L.

Clarke of Hampstead, L.

Borrie, L.

Clinton-Davis, L.

Bragg, L.

Cocks of Hartcliffe, L.

Bramall, L.

Craig of Radley, L.

Brentford, V.

Currie of Marylebone, L.

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David, B.

Mackenzie of Framwellgate, L.

Davies of Oldham, L.

Mar and Kellie, E.

Dean of Thornton-le-Fylde, B.

Marsh, L.

Desai, L.

Mason of Barnsley, L.

Dixon, L.

Merlyn-Rees, L.

Donoughue, L.

Milner of Leeds, L.

Dormand of Easington, L.

Mishcon, L.

Dubs, L.

Molloy, L.

Eatwell, L.

Monkswell, L.

Evans of Parkside, L.

Monson, L.

Exmouth, V.

Morris of Castle Morris, L.

Falconer of Thoroton, L.

Morris of Manchester, L.

Farrington of Ribbleton, B.

Murray of Epping Forest, L.

Gainsborough, E.

Nicol, B.

Gilbert, L.

Oliver of Aylmerton, L.

Glanusk, L.

Oppenheim-Barnes, B.

Glenamara, L.

Orme, L.

Goudie, B.

Palmer, L.

Gould of Potternewton, B.

Peston, L.

Graham of Edmonton, L.

Pitkeathley, B.

Gregson, L.

Plant of Highfield, L.

Grenfell, L.

Ponsonby of Shulbrede, L.

Hacking, L.

Prys-Davies, L.

Haddington, E.

Ramsay of Cartvale, B. [Teller.]

Hanworth, V.

Randall of St. Budeaux, L.

Hardie, L.

Richard, L.

Harding of Petherton, L.

Rowallan, L.

Hardy of Wath. L.

Sainsbury of Turville, L.

Harris of Haringey, L.

St John of Bletso. L.

Haskel, L.

Scotland of Asthal. B.

Hayman, B.

Sefton of Garston, L.

Hilton of Eggardon, B.

Sewel, L.

Hogg of Cumbernauld, L.

Shannon, E.

Hollis of Heigham, B.

Shepherd, L.

Howie of Troon, L.

Sheppard of Liverpool, L.

Hoyle, L.

Shore of Stepney, L.

Hughes, L.

Simon, V.

Hughes of Woodside, L.

Smith of Gilmorehill, B.

Hunt of Kings Heath, L.

Stair, E.

Irvine of Lairg, L. [Lord Chancellor.]

Stallard, L.

Stoddart of Swindon, L.

Islwyn, L

Stone of Blackheath, L.

Janner of Braunstone, L.

Strabolgi, L.

Jay of Paddington, B. [LordPrivy Seal]

Taylor of Blackburn, L.

Tenby, V.

Jeger, B.

Thomas of Macclesfield, L.

Jenkins of Putney, L.

Thurlow, L.

Kennet, L.

Tomlinson, L.

Kintore, E.

Turner of Camden, B.

Kirkhill, L..

Varley, L.

Levy, L.

Walker of Doncaster, L.

Lockwood, B.

Warner, L.

Lofthouse of Pontefract, L.

Watson of Invergowrie, L.

Longford, E.

Weatherill, L.

Lovell-Davis, L.

Wedderburn of Charlton, L.

Macdonald of Tradeston, L.

Wharton, B.

McIntosh of Haringey, L. [Teller.]

Whitty, L.

Williams of Elvel. L.

Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Kosovo
4.43 p.m.
Baroness Jay of Paddington: My Lords, with the leave of the House I should like to repeat a Statement on Kosovo being made by my right honourable friend the Prime Minister in another place. In doing so, perhaps I may renew my apologies to the House for my inadvertence last week in leaving out certain paragraphs

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of a previous Statement. I assure the House that I shall indeed repeat every paragraph of this important Statement. The Statement is as follows:
"As I speak, it is still unclear what the outcome of Mr. Holbrooke's talks in Belgrade will be, but there is little cause to be optimistic. On the assumption they produce no change in President Milosevic's position and the repression in Kosovo by Serb forces continues, Britain stands ready with our NATO allies to take military action. We do so for very clear reasons. We do so primarily to avert what would otherwise be a humanitarian disaster in Kosovo.
"Let me give the House an indication of the scale of what is happening. A quarter of a million Kosovars, more than 10 per cent. of the population, are now homeless as a result of repression by Serb forces. Sixty-five thousand people have been forced from their homes in the last month, and no less than 25, 000 in the four days since peace talks broke down. Only yesterday, 5, 000 people in Srbica were forcibly evicted from their villages.
"Much of the Drenica region of northern Kosovo is being cleared of ethnic Albanians. Every single village the UNHCR observers could see in the Glogovac and Srbica region yesterday were on fire. Families are being uprooted and driven from their homes. There are reports of masked irregulars separating out the men: we do not know what has happened to them. The House will recall that at Srebrenica they were killed.
"Since last summer 2, 000 people have died. Without the international verification force, there is no doubt the numbers would have been vastly higher.
"We act also because we know from bitter experience throughout this century, most recently in Bosnia, that instability and civil war in one part of the Balkans inevitably spills over into the whole of it, and affects the rest of Europe too. Let me remind the House. There are now over 1 million refugees from the former Yugoslavia in the EU.
"If Kosovo was left to the mercy of Serbian repression, there is not merely a risk but a probability of reigniting unrest in Albania; of Macedonia being de-stabilised; almost certain knock-on effects in Bosnia; and further tension between Greece and Turkey.
"There are strategic interests for the whole of Europe at stake. We cannot contemplate, on the doorstep of the EU, a disintegration into chaos and disorder.
"We have made a very plain promise to the Kosovar people. Thousands of them returned to their homes as a result of the ceasefire we negotiated last October. We have said to them and to Mr. Milosevic we would not tolerate the brutal suppression of the civilian population. After the massacre at Racak, these threats to Milosevic were repeated. To walk away now would not merely destroy NATO's credibility; more importantly it would be a breach of faith with thousands of innocent civilians whose only desire is to live in peace and who took us at our word.
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"I say this to the British people. There is a heavy responsibility on a government, when putting our forces into battle, to justify such action. 1 warn. The potential consequences of military action are serious, both for NATO forces and the people in the region. Their suffering cannot be ended overnight. But in my judgment the consequences of not acting are more serious still for human life and for peace in the long term.
"We must act to save thousands of innocent men, women and children from humanitarian catastrophe, from death, barbarism and ethnic cleansing by a brutal dictatorship; and to save the stability of the Balkan region where we know chaos can engulf all of Europe. We have no alternative but to act and act we will, unless Milosevic even now chooses the path of peace.
"Let me recap briefly on the last few months. Last October, NATO threatened to use force to secure Milosevic's agreement to a ceasefire and an end to the repression that was then in hand. This was successful—at least for a while. Diplomatic efforts, backed by NATO's threat, led to the creation of the 1, 500 strong Kosovo Verification Mission. A NATO extraction force was established in neighbouring Macedonia in case the monitors got into difficulty.
"At the same time, Milosevic gave an undertaking to the US envoy Mr. Holbrooke that he would withdraw Serb forces so that their numbers returned to the level before February 1998—roughly 10, 000 internal security troops and 12, 000 Yugoslavia army troops. Milosevic never fulfilled that commitment; indeed, the numbers have gone up. We believe there are some 16, 000 internal security and 20, 000 Yugoslav army troops now in Kosovo, with a further 8, 000 army reinforcements poised just over the border.
"In January, NATO warned Milosevic that it would respond if he failed to come into compliance with the October agreements, if the repression continued, and if he frustrated the peace process. Milosevic has failed to meet any of these requirements. Even then, intense diplomatic efforts have been under way. My right honourable friend the Foreign Secretary and his French colleague, Mr. Vedrine, have co-chaired the peace talks in France. There is an agreement now on the table.
"Autonomy for Kosovo would be guaranteed, with a democratically-elected assembly, accountable institutions and locally controlled police forces. After three years, Kosovo's status would be reviewed. The rights of all its inhabitants, including Serbs, would be protected, regardless of their ethnic background. And the awful conflict that has been a blight on the lives of its peoples could come to an end.
"The Kosovo Albanians have signed the peace agreement. The Serbs have not. They have reneged on the commitments they made on the political texts at Rambouillet. And they refuse to allow a peacekeeping force in Kosovo under NATO command to underpin implementation.

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"It takes two sides to make peace. So far, only one side has shown itself willing to make the commitment. It was Milosevic who stripped Kosovo of its autonomy in 1989. It is Milosevic who is now refusing to tackle a political problem by political means.
"NATO action would be in the form of air strikes. It will involve many NATO countries. It has the full support of NATO. It will have as its minimum objective to curb continued Serbian repression in Kosovo in order to avert a humanitarian disaster. It would therefore target the military capability of the Serb dictatorship. To avoid such action, Milosevic must do what he promised to do last October—end the repression, withdraw his troops to barracks, get them down to the levels agreed, and withdraw from Kosovo the tanks, heavy artillery and other weapons he brought into Kosovo early last year. He must agree to the proposals set out in the Rambouillet Accords, including a NATO led ground force.
"Any attack by Serbian forces against NATO personnel engaged in peacekeeping missions elsewhere in the region would be completely unjustified and would be met with a swift and severe response in self-defence. President Milosevic should be in no doubt about our determination to protect our forces and to deal appropriately with any threats to them.
"Mr. Holbrooke has made the position of the international community crystal clear to Milosevic. There can be no doubt about what is at stake. The choice is now his.
"Milosevic can choose peace for the peoples of Kosovo and an end to the Federal Republic of Yugoslavia's isolation in Europe. Or he can choose continued conflict and the serious consequences that would follow.
"I hope the House will join with me in urging President Milosevic to choose the path of peace, and support NATO and the international community in action should he fail to do so. "
My Lords, that concludes the Statement.
4.53 p.m.
Lord Strathclyde: My Lords, I thank the noble Baroness for repeating the Statement made in another place by the Prime Minister. I understand the complexities of the issues involved. Resolving the problems resulting from the disintegration of the former Yugoslavia have tested many minds, both political and diplomatic, for many years. Indeed, there is a great history to the difficulties created by the disintegration of Yugoslavia. They have also been created by the actions of a brutal dictator. President Milosevic holds a great deal of responsibility not only for the announcement today but for the atrocities of recent years.
First, I wish to make it plain that we on this side of the House fully support the action of the British Armed Forces. The Government have taken a big step in asking them to perform their role in the area. We on these
1174
Benches offer our support not only to those on the front line but to those who work in support of that job, maintaining the supply lines from this country to the area of operation, and to the families left behind while a difficult and dangerous job is undertaken. But the recent history of the decision has been one of dithering and indecisiveness. Indeed, does the noble Baroness agree that there is no case for the string of last warnings and ultimatums which have not been followed through?
The Government were right when they said last year that Europe had been dithering and disunited in its response. Unfortunately, that dithering and disunity continued and as a result the credibility of NATO has been called into question. Therefore, will the Leader of the House understand that while I welcome the unavoidable demonstration of NATO's credibility, I regret that action against Serbia did not take place earlier? If it had taken place, there may well have been a far swifter resolution to the problem.
One concern, felt, I suspect, all around the House, is the additional strain put on our Armed Forces and their ability to maintain pressure beyond a short period of time. I understand that a Chief of Defence staff recently said that we can maintain two operations such as Bosnia and Kosovo for only six months. Can the Minister say what steps the Government will take to ensure that the deployment announced today can be sustained?
As regards the objectives, can the noble Baroness tell us in a clear and concise manner what they are? Will the action be aimed at military targets? Can the noble Baroness inform the House whether it is envisaged that any military action will be followed up by the use of ground forces? What will the Government's response be if Milosevic does not back down; in other words, what will happen if air strikes fail? Can the noble Baroness give an assurance that any NATO action against Serbia will not amount to bombing in a vacuum and that the Government have a long-term political and military strategy?
It is impossible to deal with this issue without reflecting on what response might come from in Russia. Does the noble Baroness have any early indication of the response from Russia? To what extent are Serbian forces supported by Russian arms? As British Armed Forces will be going in to bomb positions, what technical support is provided by Russian nationals? What position will the Government and NATO take to the rearmament of Serbian positions by Russians? Finally, what reaction has there been in the European Union? Is there a united position among our EU partners and, if not, which countries have objected to the action being taken by NATO?
Obviously, we hope that the situation is resolved quickly and efficiently. Can the noble Baroness give an assurance that if there are any changes in the situation on the ground, or if it is envisaged that ground forces will be used, a further Statement will be made to this House?
4.59 p.m.
Lord Rodgers of Quarry Bank: My Lords, I, too, thank the noble Baroness for repeating the Statement

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made by the Prime Minister in another place. It is a grave but realistic Statement and I find little in it to disagree with. I support the noble Lord, Lord Strathclyde, in asking the noble Baroness to keep the House up to date with any changes because we all recognise that it is a fast moving situation with few fixed points. We must all hope that Richard Holbrooke's mission will succeed but—and it is the principal point addressed by the Statement—we must be ready for failure.
The decisions are difficult for both Her Majesty's Government and NATO, and for everyone involved in this extraordinary event. I can only say, and I think this would win the support of all sides of the House, that to do nothing is no longer an option, if it ever was. We cannot now draw back. It would be a humilation for NATO and, as the Prime Minister said, a betrayal of our plain promise to the Kosovo people. It would also be morally indefensible to do so on humanitarian grounds. The Prime Minister sets out in his Statement some of the details of the events with which we are already familiar but which deserve to be repeated, though they often do not bear to be thought about.
The United Kingdom's best long-term interests certainly cannot lie in withdrawing or in equivocation. I agree with the noble Lord, Lord Strathclyde, on that. It is not only the strategic interests of the whole of Europe that are at stake, as the Prime Minister said, but also the long term strategic interests of the United Kingdom.
We now need to move fast. This is not the time to make an issue of the gap which has occurred since the withdrawal of the OSCE monitors, Mr. Holbrooke's visit to Belgrade and the time that has been lost while the talks continue and the Serbs take the action which they are doing in Kosovo. I hope there will be no suggestion of any further delay to take account of Prime Minister Primakov's visit to Washington. That cannot be a reason for delaying what now needs to be done.
We all recognise that there are grave risks in the action once begun and that it may have to go beyond air strikes. I do not press the Minister for any further comments. The air strikes may indeed have painful consequences, including civilian casualties, but it will be necessary to come to terms with the fact that once embarked upon this course we need to plan for the next step if air strikes prove not sufficient. Whatever the case, we are going into this with our eyes wide open and recognise fully that the engagement of Britain's own Armed Forces may lead to casualties which will be a further painful price to pay in a necessary duty.
I ask the noble Baroness two questions. What future role does she envisage for the United Nations and for the OSCE if the air strikes succeed? Who determines what happens to the monitors now in Macedonia? Will they be retained there and, if so, can we anticipate any future role for unarmed monitors, despite what the Prime Minister says about the achievement which may lie with them? What information do the Government have about Russian arms and technology recently reaching the Serbs and, if we have reason to believe that such developments have occurred, what representations
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have been made in Moscow? It would be very helpful to have the Government's assessment of the attitude of the Russians beyond their known public statements.
5.5 p.m.
Baroness Jay of Paddington: My Lords, I am very grateful to both noble Lords who have spoken from their respective Front Benches for their welcome understanding of the very grave situation in which we find ourselves and of the potential difficulties ahead. It is also appropriate to say that of course we agree entirely with the comments of the noble Lord, Lord Strathclyde, about the degree of responsibility for this situation which lies at the door of Mr. Milosevic. I would very much like to endorse his words of support for the Armed Forces who may well be undertaking a risk to their lives. I agree with him entirely that, although our thoughts and very good wishes go initially to the front line forces, we must never forget those who are in the lines of support back at their bases; and, in particular, their families. I am sure the whole House is grateful to him for underlining those sentiments and join him in expressing them.
Both noble Lords raised the question of the degree of international support and agreement which lies behind the possibility of military action. I emphasise that the NATO Council endorsed this position yesterday at a meeting. Thirteen countries are supporting militarily the effort in the region and therefore it could genuinely be said to be a united international effort.
The noble Lord, Lord Strathclyde, asked whether or not this overstretched our Armed Forces. I am sure that he was as delighted as I was that my right honourable friend Mr. Robertson said yesterday in answer to questions on this point in another place that the strategic defence review and all its implications was in no way challenged by the possibility of military action in this field because that was based on global assumptions that did allow us the flexibility to do more or less in specific theatres should the time arise. My right honourable friend also noted in answer to questions in another place that, although it is a very serious undertaking for the Army, recruitment has increased in the past year by 17.6 per cent. and, although none of us should be complacent about the possibilities of stretching our resources, there is no need to be immediately concerned on that front.
Both noble Lords made points about the long-term strategy which we face in this area, both militarily and politically, and they both understand that those are very fast-moving and fluid situations. The primary objective of the initial strikes, if they are to take place, is to do precisely what the Statement says, which is to alleviate the possibility of an appalling humanitarian disaster which is already gathering speed in various places. Of course we hope that when, in the colloquialism, Mr. Milosevic's military installations are degraded, some forces within the country will bring him to his senses in terms of trying to effect a political agreement on the Rambouillet accords. Those have already been signed by the Kosovar Albanians and form the basis for a political way forward on a very clear-cut strategy which allows for an interim agreement that would last

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in the first instance for three years. That would naturally, as the original agreements proposed, call for an agreement by the Serbs that the Military Implementation Support Force would be allowed into Kosovo precisely to do what its title indicates. That too, as the Statement said, is very far from Mr. Milosevic's position at the moment. Those remain the ambitions of the political and military strategy which the allies and those involved with them are seeking to undertake.
The noble Lord, Lord Rodgers, asked whether there was any future for the role of the unarmed observers, the OSCE people, who of course have now left. I am sure the Government hope that were what now seem slightly theoretical objectives that I have underscored finally to become a practical reality in the wake of any military action, those people may indeed have a role in implementing the political strategy which I have outlined.
Both noble Lords asked me about the Russian position. I believe that Mr Primakov's presence in Washington is a factor in the international understandings which are being worked out at present. But that may be a positive rather than a negative ingredient, as was originally suggested. I do not have information about the most recent indication of what the Russian arms support may be in Yugoslavia. However, it is common knowledge that much of the military equipment and the way in which the Serbian Yugoslav army has been trained follows the old Warsaw Pact model. That is widely recognised.
However, we should not be too alarmed by the Russian reaction. Clearly, at a political level, they are as frustrated by the intransigence of Mr Milosevic as are many other countries. They are members of the Contact Group and have played an extremely important role in some of the earlier discussions which led to the Rambouillet negotiations. At this stage, we should be optimistic about their collaboration, if not their welcome, in relation to what may need to happen next.
Both noble Lords asked me to give them updated information and seek other opportunities to discuss the whole issue as it develops. I am only too happy to say that I shall repeat any relevant Statement on this matter. Noble Lords may be interested to hear that since I rose to repeat the Statement, I have been told that Mr. Holbrooke is now giving a press conference in Belgrade and the indications are that he will then leave the country. Noble Lords will draw the implications from that piece of information that I should expect them to do.
5.11 p.m.
The Earl of Onslow: My Lords, will the noble Baroness go further in relation to two matters raised by my noble friend Lord Strathclyde? Let us assume, for the sake of argument, that the air strikes do not work. Let us say that there are then three weeks of bombing. Nothing happens. The Serbs continue to beat up the Albanians. It has been true since before Alexander the Great that the only thing which achieves supremacy on the ground is either the hoplites at Persepolis or the GIs
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in Kosovo. It does not matter. There must be infantry on the ground and without that infantry threat, it is possible that the whole operation will go wrong.
Secondly, the noble Baroness said that she did not know a lot about what the Russians were doing in relation to arms supply. However, on the one o'clock news today, there was a report that—I believe it was— the Azerbaijanis had stopped an Antonov cargo aeroplane and had not allowed it to continue with its refuelling because it had either three or six brand new Mig fighters on their way to Serbia. It is all very well for there to be the odd half pound of semtex, but even three Mig fighters seem to make a rather larger hole in the sanctions wall. Will the Minister say something about that?
Baroness Jay of Paddington: My Lords, the noble Earl referred to the Serbian forces continuing to beat up the Albanians. I suppose that the short answer to that is that NATO forces will continue to beat up the Serbs. Regrettably, that is the situation in which we are. It now becomes a question of a military threat.
As regards ground troops, my noble friend Lord Gilbert and my right honourable friend the Prime Minister this afternoon have made it clear that in order to undertake any successful intervention on the ground with troops, one would be talking of numbers in excess of 100, 000. I imagine that the noble Earl will draw from that the conclusion that there is little appetite or intention by the forces of NATO to fight their way in on the ground.
I said to the noble Lord, Lord Rodgers, on the question of Russian military equipment that I do not have up-to-date information. As I said in reply to both noble Lords who spoke from the Front Bench, we are very much aware that Russian equipment and training methods have been and are being widely used by the Serbs.
Lord Shore of Stepney: My Lords, the Government have my support in the action which they may well have to take very shortly. But it will be support given with much greater reluctance, frankly, than I have been able to give in the past when we have taken analogous similar action against Iraq. The fundamental reason for that is that although Serbia Yugoslavia has dished out appalling treatment, it has done it within its own borders. It has not committed the international crime of crossing the frontiers and invading the territories of another state.
My difficulty is that I feel that that should not necessarily prevent us from taking action of this kind but it poses enormous problems when dealing with future difficulties, not just in Yugoslavia but almost worldwide. We must think extremely hard about how we can best deal with the issue. In that situation, achieving the goodwill, co-operation and, if possible, even the agreement to send Russian troops would be extremely helpful and important. I hope that that can be done.
Baroness Jay of Paddington: My Lords, I thank my noble friend. I am sure that the whole House will agree

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with him about the seriousness and gravity of the potential for the different types of escalation of this particular crisis. As was clear from my right honourable friend's Statement, no one is undertaking this action lightly or without forethought as to what the implications may be. But I am sure my noble friend will understand that the primary aim—to avert Milosevic's capability for oppression in Kosovo—is exactly the kind of cause which he would normally support. Aversion of the humanitarian catastrophe is the primary cause for any military action which is undertaken.
My noble friend's point about the goodwill or, at least, the support of the Russians is important and I mentioned that in response to the noble Earl. It was exactly that situation which I was indicating was relevant to the presence of Mr Primakov in Washington. In some of the commentaries, that is seen as a negative factor, but it could be a positive factor if it provided opportunities for face-to-face discussions with the Americans and NATO.
Baroness Williams of Crosby: My Lords, we cannot avert a humanitarian disaster because it is already in train. We can only hope that the intervention will stop that disaster before it becomes worse at a time when one-third of the people of Kosovo are already refugees; when their houses are being burned once again; and when they are once again being driven, terrified, into what remains of the ruins.
I have two questions for the noble Baroness the Leader of the House. First, for how long will the West continue to treat Milosevic as the answer to the problem rather than the problem itself? It is surely now clear that that man is guilty of one crime against humanity after another. Why is it the case that absolutely no steps have been taken to bring him before the International Criminal Tribunal for Yugoslavia and why no steps have been taken to arraign similar war criminals in Bosnia, which might produce a useful lesson?
The second question I wish to ask concerns the wider regional issue. Today in Albania all young men under the age of 30 are being called up. Today, the Montenegran Prime Minister, Mr Vujanovic, has again indicated that he wishes to retain the fullest autonomy for Montenegro. In both Vojvodina and Sandjak, the widely held view is that they are next; that Kosovo is not an issue on its own but part of a story in which one part of the former Republic of Yugoslavia after another—Croatia, Bosnia, Kosovo—have been subjected to the bullying and brutal tactics of Mr Milosevic.
Can the Minister give an assurance that Her Majesty's Government will do all they can to support those people in the former Republic of Yugoslavia who share our concern and, indeed, our strong objections, to the policies of Mr. Milosevic? Will the Government recognise that they are the key to overthrowing this tyrant and that we need their help in order to do it as we will be restricted primarily to air strikes over the next few weeks?
Baroness Jay of Paddington: My Lords, I am grateful to the noble Baroness for underlining to the
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House that a very large human catastrophe has already taken place. That is a concern which, of course, I share. If there was any indication in anything I said that I did not recognise that fact, I would wish to correct it.
As the noble Baroness stated, the situation is rapidly deteriorating and the human catastrophe, although something we have all felt strongly about for some time, is accelerating. If, as indicated in the Statement, 25, 000 people have been forced from their homes in four days, which has happened since the peace talks broke down, that is an impression which is almost impossible to convey with words. Perhaps "human catastrophe" is a phrase we need to revise. This situation is unbelievable and definitely inhumanitarian.
The noble Baroness suggested intervention in the political processes within Yugoslavia. She will know, as well as I, that that would entail precisely some of the questions about sovereignty which were referred to earlier by the noble Lord, Lord Shore, as regards territorial integrity and so forth. I endorse what the noble Baroness said about support for the democratic opposition to Mr. Milosevic. I believe that no one has been more adamant in their condemnation of his activities than the Government.
I take to heart the point she made about the wider regional implications of the situation in Kosovo. I think an expression was coined in another theatre 25 or 30 years ago about dominoes. That theory holds good in this situation and is one of which we should all be very aware.
Lord Jenkins of Putney: My Lords—
Lord Craig of Radley: My Lords—
Noble Lords: Craig!
Lord Jenkins of Putney: My Lords—
Noble Lords: Order!
Baroness Ramsay of Cartvale: My Lords, I think it is the feeling of the House that the noble and gallant Lord, Lord Craig, should have the floor and then, perhaps, my noble friend Lord Jenkins.
Lord Craig of Radley: My Lords, the noble Baroness the Leader of the House made a very significant comment in answer to an earlier question about the employment of ground forces, or the possibility of them being employed.
In the light of that comment, can she give the House some assurance about the confidence of Her Majesty's Government that the air operations which are about to begin, or look as if they are about to begin, will achieve the objectives so clearly outlined in the Statement?
Baroness Jay of Paddington: My Lords, I am grateful to the noble and gallant Lord for raising those points. I am sure that the House will understand that I would never seek, in any way, to challenge his authority on military strategy. I would just say to him

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that it is the intent of the Government and, indeed, NATO, that the objectives should be attempted to be achieved in the way we have described in the Statement as being theoretically possible. However, it would clearly be totally inappropriate ever to give any guarantee about the outcome of any military intervention. All we can do is to take the best possible options to achieve what he rightly says is a clear strategy.
Lord Jenkins of Putney: My Lords, I rise to ask my question because I gather that the House, as a whole, is in favour of the Government's proposal to act in this matter in the way so clearly described. Before I ask my brief question I should like to say that I am not in favour of the Government's action, and that voice should be heard.
In my view and experience—which is pretty long in these matters—nothing started by bombing brings about peace. Generally speaking, bombing brings about war, and the worst war started with bombing. I see no reason to suppose that that will not happen in this case.
However, as the Government seem set upon this course, which I believe to be wrong, perhaps I may ask one question. Will they refrain from the kind of bombing which brings about massive civilian casualties? If there is bombing of a city, inevitably there will be civilian casualties, and that would be against international law. There is no reason why the Government should find it difficult to say that they will not break international law by bombing Belgrade. Let us make that exception, at any rate. It would not be disclosing their strategy to say, "We will not break international law by bombing a city which inevitably results in the killing of non-combatants: women, children, old people and so forth". Will the Government at least say that?
Baroness Jay of Paddington: My Lords, I suspect that my noble friend and I may disagree about the overall policy and what lies behind it in terms of the military strategy. The Statement makes clear that, although it is possible that results from military activity might produce casualties or an outcome which may lead to greater human suffering, that would be something that everybody would regret. However, it would be unrealistic to say one could possibly avoid it. Obviously, it is impossible to say that one will always avoid civilian casualties. However, I would draw my noble friend's attention to the military activity—indeed, the bombing—which took place in Iraq some months ago. By the use of precision methods and weapons, casualties were kept to an absolute minimum. That will always be the intention of anybody undertaking this type of military activity. However, it will be totally unrealistic and inappropriate to say that any sort of military action carries with it an automatic guarantee.
Lord Marlesford: My Lords, do we not now need a long-term objective into which military action can be fitted? Perhaps I may suggest to the noble Baroness the Leader of the House that by having rejected the
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Rambouillet Accord—which offered the best possible deal to the Serbs—and by his behaviour in Kosovo since that time, President Milosevic has forfeited for Serbia any further right in the involvement of the affairs of Kosovo. The international community should now aim for an independent Kosovo with a 90 per cent. population of Albanians as a separate member of the United Nations. At least then we would be clear what we are aiming at. That would be a long-term solution to that particular problem.
Baroness Jay of Paddington: My Lords, as regards the long term, I would reiterate that which was embraced in the Rambouillet political agreement to which the Kosovo Albanians have signed up. They presumably accepted the spirit as well as the letter of the agreements which included a large degree of autonomy for Kosovo, substantial self-administration and—the point made in the Statement—an independent police force, and so on. That is clearly something at which we should continue to aim. As regards independence, the noble Lord suggested that only one side is negotiating. However, I suspect if it is only one side, we would be back in the situation we were in when discussing whether or not NATO would be prepared to fight its way in on the ground. I reiterate that that is not the Government's position. However, if two sides were negotiating on independence, we could support any solution which was freely negotiated between the parties. Frankly, that seems an unlikely solution.
Baroness Ludford: My Lords, perhaps I may raise a point following on from that of my noble friend Lady Williams concerning President Milosevic being the problem and not the solution. Have I correctly noted a moving on in the position by the Government and other NATO allies? The Statement says that if Kosovo was left to the mercy of Serbian repression, there would be a risk of re-igniting unrest in Albania and destabilising Macedonia. The attitude used to be that if one envisaged any other possibilities but Serbian repression in Kosovo, that was destabilising. Have I correctly noted an evolution in thinking? Are we now to understand that it is destabilising to allow the persistence of repression rather than to keep an open mind to other possibilities, which I believe would be a more welcome evolution in NATO's thinking? The first leads to the kind of conclusion which my noble friend pointed out; that is, that we treat existing regimes, even authoritarian ones, as necessary to stability. That is the route to the problems into which we sometimes run.
Baroness Jay of Paddington: My Lords, as the noble Baroness rightly points out, the Statement refers to the wider regional implications. I hope that in my reply to the noble Baroness, Lady Williams of Crosby, I indicated that that was deliberate for the reasons that I set out. I described it in shorthand as a "domino theory". I think that we all understand that.
President Milosevic has not been indicted by The Hague Tribunal, although noble Lords may find that surprising. He is the President of the Federal Republic of Yugoslavia and if we want to do any kind of business

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with him on the political solution, we must continue to have contact with him. That does not mean in any sense that we approve of him, but we think that the best way to ensure the rights of others in the region is to show the strength that we are indicating that we may have to show in relation to Kosovo.
Lord Glenamara: My Lords, will the noble Baroness bear in mind that I and, I imagine, many others although supporting the Government and the Armed Forces nevertheless have grave doubts about this policy? We are not Bennites by any means, but we have doubts about this, for two reasons. First, this may have exactly the opposite effect on Milosevic from what we intend; secondly, we could get sucked into a ground war. All the talk about that today terrifies me. The noble Baroness said that NATO has no will to send ground troops into Yugoslavia, but they are already there; they are over the border in Macedonia. What happens if the Serbs attack our troops in Macedonia? It is a grave danger. I hope that the Government appreciate that, although we support them, we have grave doubts. I do not want Britain to be involved in a third Balkan war. That would be an appalling state of affairs.
Baroness Jay of Paddington: My Lords, of course, I respect my noble friend's point of view. As he rightly says, I am sure that many people both inside and outside this House will feel extremely concerned about this. However, I am sure that my noble friend also feels that, to quote the exact words used by the noble Baroness, Lady Williams, we are faced with a "humanitarian catastrophe". We are faced with a situation which all of us find absolutely appalling in humanitarian terms. We cannot ignore that and we must take action about it. In response to various earlier questions, I have already referred to the point which my noble friend raised about the potential difficulties, crises and problems in engaging ground troops. I reiterate that, as the Statement indicates, the NATO troops which at the moment are based in Macedonia would vigorously defend any attack made on them. There is no question that they would not do so. Equally, it is not NATO's intention that they should fight their way into Kosovo to impose any sort of military solution.

Youth Justice and Criminal Evidence Bill [H.L.]
5.33 p.m.
Proceedings after Third Reading resumed on Clause 1.
Lord Windlesham Lord Windlesham moved Amendment No. 3:
Page 2, line 2, leave out ("sentence") and insert ("order").
The noble Lord said: My Lords, this amendment is consequential on Amendment No. 2 which was decided on a Division shortly before the Statement. I beg to move.
On Question, amendment agreed to.
Lord Windlesham Lord Windlesham moved Amendment No. 4:
Page 2, line 2, leave out ("for the offence by ordering hirn").
On Question, amendment agreed to.
Clause 5 [Making of referral orders: attendance of parents etc.]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 5:
Page 5, line 10, leave out subsection (3) and insert—
("(3) The court shall not under this section make an order requiring a person to attend meetings of the youth offender panel—

(a) if the court is satisfied that it would be unreasonable to do so, or

(b) to an extent which the court is satisfied would be unreasonable. ")

The noble Lord said: My Lords, this group contains Amendments Nos. 5 to 9 and Amendment No. 41. They are all relatively minor amendments and have been tabled to correct slight drafting oversights. By these amendments, we also intend to give sufficient flexibility to the court and the panel in tackling offending behaviour.
Amendments Nos. 5, 6 and 7 seek to ensure maximum flexibility in dealing with parental attendance. A key objective is to ensure that parents are fully involved. Your Lordships have already agreed amendments to ensure that more than one parent or guardian may be required to attend panel meetings. However, there will be some circumstances where it is not possible or appropriate for a parent or guardian to attend. The Bill, as drafted, already acknowledges that. Previous amendments to the clause have left that provision sitting a little awkwardly, so we have revised the formulation to sit more comfortably—I hope that your Lordships agree—and to make clearer the range of considerations that the court may take into account. That may include whether or not a parent was involved in the commission of a crime, the health and domestic arrangements of the parents, and the relationship between those the court proposes to require to attend with the offender and with each other.
On Report, I indicated that I would review the element of Clause 5 relating to those cases in which it will be appropriate for a court to require a local authority representative to attend panel meetings. Our original formulation followed Section 34A of the Children and Young Persons Act 1933. On reflection, I am concerned that that may be unduly rigid, restricting, as it may, the role of the local authority to those cases where it has parental responsibility following a care or emergency protection order. I think that it is preferable to use the wider formulation of "looked after" cases, as they are described in the Children Act 1989. That is a broader category, and will include those cases where a young offender is accommodated by the local authority, perhaps temporarily during a family crisis, but where the local authority has not acquired parental responsibility.
I can assure your Lordships that that will not prevent the full involvement of parents in appropriate cases, since the courts already have the power to require more than one appropriate adult to attend panel meetings. That would mean that both the parents or guardians and a local authority representative could be required to attend if the court thinks it appropriate.
On Report, the noble Lord, Lord Cope of Berkeley, tabled an amendment which sought to remove the words "or otherwise" from the provision which precludes the inclusion of electronic monitoring in the contract. I said that I thought that that amendment was technically defective, but that I would look at it again. The phrase "or otherwise" was intended as a catch-all. The noble Lord correctly identified that there is a danger that it might catch more than we intended. Therefore, Amendments Nos. 8 and 9 will reword the subsection, omitting the words "or otherwise", and I hope that they fully meet the point most helpfully raised by the noble Lord.
Finally, Amendment No. 41 seeks to ensure that arrangements in Schedule 1 for bringing the offender before the court for breach proceedings will apply in Scotland, so that a young offender who fails to comply and crosses the Border may be brought back to court to face the consequences. That rectifies a drafting oversight and I hope that your Lordships will accept it. I beg to move.
Lord Windlesham: My Lords, this group of amendments, like those to Clause 1 which we debated before the Statement, relates to another mandatory requirement. We should not let this clause go without drawing attention to that. This time, I refer to attendance by parents, guardians or representatives of local authorities at the meetings of the youth offender panel in those cases where the offender is under the age of 16. Clearly, their supportive role is important and desirable. However, again, does it have to be mandatory?
In this situation, unlike with the making of referral orders which were the subject of the previous debate, a limited discretion is left with the magistrates. Perhaps the Minister could reflect on the fact that there is some discretion here, given that earlier he argued so strongly against the possibility of allowing any discretion. The limited discretion here means that where it would be unreasonable to expect a parent, guardian or representative of a local authority to attend, there is the discretion not to require them to do so.
I note in the Explanatory Notes on page 8 that an example is given of serious ill health. As a ground that seems sensible. I do not know if the Minister is able to give us any further examples of what might pass the test.
I conclude by asking the Minister a specific question. Is it still the case, as indicated on pages 8 and 9 of the Explanatory Notes, that those parents, guardians or representatives who fail to attend a meeting against the order of the court and without good reason, should be brought before the court for contempt?
Lord Cope of Berkeley: My Lords, this is a small group of mainly minor amendments, but nevertheless they have some significance. They are welcome. I particularly welcome Amendments Nos. 8 and 9 as they arose from a suggestion of mine.
With regard to the question of compulsion, I say to my noble friend Lord Windlesham that it is a different matter for the court to be able to compel the parents or
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other people in loco parentis to attend from requiring the magistrates to carry out a specific course of action which is what we were discussing earlier. I believe it is a good thing for parents to be obliged to attend, subject to the court having discretion in the cases set out in the amendment.
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Windlesham, was tempting me to re-traverse the question of discretion and perhaps I should note his observations, which I appreciate were courteously made.
The question was put involving a parent who was perhaps suffering from ill health. The examples I gave included one where perhaps a parent had been involved in the commission of the crime. Attendance in that case would be inappropriate. The domestic arrangements may simply make it impossible for the parents to attend. For instance, one could imagine circumstances where one parent was extremely immobile and the other was simply not able to go to the court.
Though I will research this more carefully, if a court makes a referral order and an order requiring the appropriate person to attend and that person does not attend, then on the face of it the sanction of contempt would be available. I shall research that more carefully. I am reasonably satisfied in my own mind, but if I am wrong I will write to the noble Lord, if I may, and as always put a copy of the letter in the Library.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 6 and 7:
Page 5, line 22, leave out from ("is") to end of line 28 and insert ("(within the meaning of the Children Act 1989) a child who is looked after by a local authority. ").
Page 5, leave out lines 37 and 38.
The noble Lord said: My Lords, with the leave of the House, I shall move Amendments Nos. 6 and 7 en bloc.
On Question, amendments agreed to.
Clause 8 [First meeting: agreement of contract with offender]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 8 and 9:
Page 8, line 5, after first ("the") insert ("electronic").
Page 8, line 5, leave out ("(electronically or otherwise)").
The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 8 and 9 en bloc. I beg to move.
On Question, amendments agreed to.
Clause 24 [Evidence given in private]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 10:
Page 19, leave out lines 6 and 7 and insert—
("( ) A special measures direction providing for representatives of news gathering or reporting organisations to be so excluded shall be expressed not to apply to one named person who—

(a) is a representative of such an organisation, and

(b) has been nominated for the purpose by one or more such organisations,

unless it appears to the court that no such nomination has been made. ").
The noble Lord said: My Lords, in moving Amendment No. 10 I shall speak also to Amendments Nos. 11 to 13. The first three amendments provide that if the court excludes the news media from the court, one representative must be allowed to remain and the media will have to nominate that representative.
We discussed these matters on earlier occasions. The point of Clause 24 is to allow the court to exclude certain individuals who may be upsetting a witness for either the prosecution or the defence; and to allow the court to exclude as many observers as possible so that witnesses who need privacy to encourage them to give their evidence coherently, completely and accurately, may have it
On earlier occasions I indicated, particularly in answer to the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, that I was in continuing discussions with the media. Having listened carefully to what the noble Lord and the representative said, we felt that we could balance that second aim better against the role of the press as representatives of the public. I stress that the press have an extremely important role to play. They are the ones able to disseminate what happens in courts, where the public may not be present, to a wider public.
Therefore my amendments require the court to allow one member of the media to remain, even if all other representatives of the news media are excluded. The court may wish to set a limit on numbers above that, and will be free to do so if—and only if—the justification provided by the clause exists for such a direction. We believe such situations will rarely arise. It will hardly ever be necessary to clear the court so completely that all but one member of the press is excluded. But there might be some circumstances where open justice can be safeguarded if only one member of the press is present.
We require the media to choose their nominee among themselves. It is better for the media to come to that conclusion. I believe, following our discussions, that they will be able to come to a consensus as to how they will nominate such a representative. If they fail to reach consensus and nominate more than one, the court will have to make the choice. It is therefore in the media's interests to choose their own representative rather than have an imposed choice.
Amendment No. 13 ensures that representatives of the broadcast media are covered by the new provisions, so that a broadcast journalist could be allowed to remain and a broadcast organisation could nominate a media representative. With the old wording of "newspapers or news agencies" that might not have been possible. Your Lordships will recall that on Report we agreed a similar amendment to the description used in the Children and Young Persons Act 1933 by agreeing Amendment No. 111B to paragraph 2 of Schedule 4. I beg to move.
Lord Cope of Berkeley: My Lords, this is a helpful response to our earlier discussions. It is also helpful that the Minister emphasised the rarity with which he believes it will be necessary to use these provisions.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 11 to 13:
Page 19, line 8, leave out (". however, ").
Page 19, line 15, leave out subsection (4).
Page 19, line 19, leave out ("newspapers or news agencies)") and insert ("news gathering or reporting organisations)").
The noble Lord said: My Lords, with the leave of the House I shall move these amendments en bloc. I beg to move.
On Question, amendments agreed to.
Clause 27 [Video recorded cross-examination or re-examination]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 14:
Page 21, line 42, at end insert (", or
(b) that for any other reason it is in the interests of justice to give the further direction. ").
The noble Lord said: My Lords, this amendment stands alone and follows an undertaking I gave on Report following an amendment tabled by the noble Viscount, Lord Colville, to Clause 27. I said that I would consider whether an "interests of justice" test was necessary to allow courts to direct that video-recorded cross-examination could be reopened in certain circumstances other than when new issues came up between cross-examination and trial that ware outside the control of the cross-examining party.
I hope that repeated cross-examinations will be rare. The kind of witness likely to be cross-examined on video before trial will be extremely vulnerable and repeated cross-examinations can be extremely distressing. Pre-trial video cross-examination should normally be the only cross-examination. Cross-examining parties will therefore be expected to exercise reasonable diligence to ensure that they cross-examine the witness on all relevant issues the first time round. Then, if something else comes up between that cross-examination and trial (whether through disclosure or in other ways) and they could not with reasonable diligence have ascertained those matters at the time of the original recording, they would be able to cross-examine on the new issue under the existing provisions in subsection (6).
Having thought about the noble Viscount's helpful contribution, I recognise that it is important not to compromise the interests of justice by preventing cross-examination of witnesses on important issues. The amendment therefore ensures that whenever it is in the interests of justice to allow further cross-examination, the judge will be able to allow it. I hope that the new provision will be relied on only occasionally, but it is a necessary safeguard to avoid unjust convictions resulting from witnesses not having been cross-examined on relevant issues at trial. I beg to move.
On Question, amendment agreed to.
Clause 33 [Complainants in proceedings for sexual offences]:
Lord Ackner Lord Ackner moved Amendment No. 15:
Page 24, line 29, at end insert—
("except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine. ").
The noble and learned Lord said: My Lords, Clause 33 is in absolute terms. It is as well to get it on the record straightaway. It is quite short. It states,
"No person charged with a sexual offence"—
I interpose to say it is not limited to rape, but any sexual offence—
"may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a) in connection with that offence, or

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings".

All I seek to do is to add the proviso at the end which reads,
"except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine".
That is not injecting a discretion; that is requiring the judge to apply his mind to the facts and to reach a judgment as to whether it would be unfair to the defendant not to be at liberty so to cross-examine. If he reaches that decision, that is a judgment which can be appealed against, as was pointed out when this matter was discussed on the second day of Report.
The well known aphorism "hard cases make bad law" has been referred to recently in relation to the Lawrence Inquiry. There have been suggestions proposed of an unexpected kind and the initial willingness to adopt all that was in Lawrence has given way to a more careful evaluation and assessment because of the danger that hard cases make bad law.
The reason for this amendment has really arisen out of two high profile cases, both of which occurred some two years ago. One was the case of Ralston Edwards and that was followed, almost by infection, by Milton Brown. In those cases the defendant in person abused his right of cross-examination. This gave rise to the necessity for ground rules to be laid down by the Court of Appeal, which was done by the Court of Appeal, presided over by the Lord Chief Justice, in extensive terms. However, I think I need quote only this paragraph,
"Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions at whatever length the defendant wishes. In a case such as the present it will often be desirable before any question is asked by the defendant of the complainant in cross-examination for the trial judge to discuss the course of the proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant takes issue and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence the substance of their evidence can be elicited so that the complainant's observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant but it should be made clear in advance that the defendant will be
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required, having put a point, to move on and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge's instructions the judge should if necessary, in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his address, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen in addition to controlling questioning in the way we have indicated".
So the matter has been put clearly and fully by the Court of Appeal as to the judge's powers. Interestingly enough, while the first case I referred to was followed by the second case in a copycat type of evolution, none has occurred since the decision in May last year which I have just quoted. Therefore there is no need to feel any present anxiety.
I am not at all satisfied—even though I am sure the noble Lord who is our in-house expert on European law will tell us the contrary—that the embargo which is placed on cross-examining by the defendant in person does not go contrary to the provisions of the European convention. There has been no direct decision on it in which our system, with its great emphasis and reliance on cross-examination—our adversarial system—has been tested. But be that as it were, I ask your Lordships to bear in mind the wise words of the late Lord Lowry, whose memorial service a number of us attended yesterday, when he said in the debate in 1998 on this subject,
"If Parliament introduces the proposed restriction it will be saying, 'You will no longer have a choice of ways of being defended. You must accept counsel even if you conduct your own case'. That statement would reduce the defendant's minimum rights in Article 6, paragraph 3. Even if we are not offending against the convention, why introduce a unique restriction in one type of case just because some trials, and in particular one trial, are not sufficiently controlled by the trial judge? Seminars with advice as to how to conduct a trial are at least as important as seminars on sentencing, and the problem can be easily taken care of".
I invite your Lordships to bear in mind that there may be a number of reasons why a defendant wishes to cross-examine in person. The majority of cases nowadays are what are known as "date rapes", which are allegations of rape between a complainant and a defendant who are husband and wife, or live together, or have known each other for years on intimate terms, and the like. It is by no means being idiosyncratic that the defendant insists on cross-examining. He knows the position intimately and his questions may be much more effective.
I ask your Lordships to take the view that this is an unnecessary, strong reaction to a couple of high-profile cases which have not repeated themselves. I beg to move.
6 p.m.
Earl Russell: My Lords, we had an excellent discussion of this issue in Committee, a discussion that was somewhat truncated by the hour on Report. There are good principles on both sides of this argument. In Committee, the noble and learned Lord, Lord Bingham of Cornhill, said that miscarriages of justice are to be prevented "at all costs". It was argued on the other side that there is a very considerable problem of access to

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justice. Even one case, let alone two, sufficiently highly publicised, as they have been, obviously has a deterrent effect on the bringing forward of complaints. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that it was a case of the interests of justice and access to justice.
We have to consider not only which of these is the more terrible thing. If that was the only question, then the line taken by the noble and learned Lord, Lord Ackner, might possibly prevail. We have to consider also which is the more probable. I am as yet very far from convinced that not being able to cross-examine in person is likely to diminish the accused's chances of acquittal. If members of the Criminal Bar believe that employing the services of a competently qualified advocate makes conviction more likely, then I believe they sell themselves short. The kind of person who might want to conduct his own defence is very likely also to be the kind of person who, by doing it in a clumsy and possibly provocative way, may make an unfortunate impression on the jury and may therefore make his conviction more likely. I am very far from convinced that it is in the interests of the accused to have this facility. Were I to accept the amendment of the noble and learned Lord, that is a point on which I would need to be convinced.
I listened with considerable care to what the noble and learned Lord said about cases where there is a previous relationship between the parties. In a sense—and only a sense—I will grant his point that in these cases the potential cross-examinant knows what happened. In any matter of this kind, recollection is selective. Each party will remember some part of what happened and have a convenient or comfortable amnesia on some of the others. There will also be an inevitable element both of amnesia and of recrimination in the cross-examination. I would be inclined to think that the cases that the noble and learned Lord invokes are precisely those in which the accused should be least encouraged to exercise any right of cross-examination.
Perhaps I may return to the precise words of the noble and learned Lord's amendment, which invokes cases where it is in the interests of justice for the accused to have this right. I cannot at present imagine the kind of case in which it would be in the interests of justice to give the accused this right. I hope that the noble and learned Lord, when he replies, will enlighten me.
Perhaps I may touch on a point made by the noble Baroness, Lady Mallalieu, in Committee.
Lord Ackner: My Lords, I am sorry to interrupt the noble Earl, but the words which I have used in the amendment are,
"that it would be unfair to the defendant not to be at liberty so to cross-examine".
Those words are taken from the current Act which deals with unfairness where evidence which the defendant seeks to put in on the prior sexual activity of the complainant is excluded. So it is a philosophy which is found elsewhere in the legislation on this subject.
Earl Russell: My Lords, I am most grateful to the noble and learned Lord for the correction and I apologise to the House for the error. I have the paper here and I am able to look at it.
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However, the acceptance of the philosophy does not answer the point about its relevance. I cannot envisage in what type of case this philosophy, however acceptable, would be relevant to the point at issue. It is that point on which I should like to be enlightened.
Perhaps I might briefly return to the point made by the noble Baroness, Lady Mallalieu. I quote from memory and, again, I hope that she will put me right if I misquote her. She said that women as a class are not to be treated as suffering from any disabilities. I take her point entirely and I agree with it. That is why I hope that if the Bill goes forward as it is it will deal equally with victims of male rape and female rape. What is in common is the trauma and not the gender, and the Bill accepts that point.
Baroness Mallalieu: My Lords, I rise to support this amendment. I have reminded myself of the lengthy debate that we had on this issue on 1st February in Committee, and in particular of the reasons given by the Minister for rejecting the proposed changes. In that debate he did not seek to argue that abuses of the kind that occurred in the two well-publicised cases which led ultimately to the Court of Appeal's judgment had continued since that judgment in May 1998. Indeed, he accepts that that judgment appears to have cured the problem by giving judges the clearest indication of what to do in these cases and confidence that robustness will be supported by the Court of Appeal. So there has been no repetition and there have been no copy-cat cases.
The Minister said that people who have been attacked are deterred from coming forward to give evidence because they fear that they may be cross-examined by their attacker in the way that the popular press reported in those two cases. He added that withdrawal of a defendant's right to conduct his own case had caused no difficulties in respect of children. What he is therefore proposing by this clause is legislation to correct a public misconception. I am very much in favour of correcting misconceptions and misunderstandings, but I do not believe that it is best done by withdrawing an important right from the defence; nor am I confident that by taking such a step the object which both he and I wish to achieve will be achieved significantly or at all.
The reasons why those who are attacked do not come forward are no doubt many and complex. Many do not want to go through the ordeal of re-living the experience; they want to put it behind them and they want to forget, especially as the trial will inevitably be delayed for some time. They may not want to see the defendant face to face; they may not have told the truth about some aspects of the case and they fear that they may be found out; or they are afraid that they may be asked difficult questions and tied up in knots by a clever lawyer. But, above all, time and time again the reason for not coming forward—one has heard it over and over—is that they fear that they will not be believed. The Bill contains means which will help in some important respects—in relation to delays; in relation to screens; and in relation to the extension of the video link. But there are some things that it is not possible to exclude. When anyone makes an allegation of serious crime, sexual or otherwise, especially when the

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consequence for the person accused is loss of liberty, often for a considerable period, the accused must retain the right to challenge and explore the evidence fairly and, where necessary, firmly, in relation to the relevant issues. That does not mean bullying, embarrassing or insulting the witness'. All those are things that the judge has ample power to prevent.
With child witnesses there are, I accept, good reasons to restrain the right of a defendant to do that himself. A child is always at a disadvantage. By reason of his age, inevitably he will be inexperienced; he is probably inarticulate; he is more easily frightened than an adult, and more easily intimidated. For very good reasons, children are treated differently, whether they are defendants or witnesses, and rightly so. They need special protection. But to apply a blanket ban to all sexual cases, as this clause currently does, is to ignore the wishes not merely of the defendant but also of the complainant. It is ironic that many women's groups say that they would prefer to be cross-examined by an untrained and less effective defendant than by an experienced lawyer.
The present clause may well mean that a defendant is able to appeal to a jury on the ground that he has been unable to present his case as he wished. The noble Lord asked for examples of cases where it might be appropriate for someone to cross-examine in such a case. I can only say, as I did at an earlier stage of the Bill's passage, that I have had personal experience of such a case. I am quite satisfied that no lawyer would have obtained the admission that the defendant himself, cross-examining very briefly and courteously, did from someone with whom he had lived and who had made an allegation following an argument which she then admitted to his face was false.
An advocate who comes into a case, as the Bill proposes, solely for the evidence of one witness has a difficult task to perform. If the defendant who has to instruct him either fails to do so properly—in which case his task is impossible—or tries to do so but does so inadequately, which is highly likely, the result, whatever his abilities, will be unsatisfactory too. If a jury feels that a defendant is not being allowed to present his case fully as he wishes, it is likely to try to redress what it sees as unfairness by its verdict. The procedure that is proposed under this clause may well have the appearance of unfairness to an accused and result in verdicts which will reflect that and not necessarily the evidence.
The Government are rightly worried about acquittal rates in sexual cases, and particularly rape cases. They would do well—indeed, they would do better—to examine the real causes of those acquittals: cases taken to trial on evidence that is not of sufficient strength to sustain a conviction but which, because a sexual offence is concerned and there is a fear of criticism, are pursued instead of being dropped; serious cases of that nature prosecuted by very junior counsel appointed by the Crown Prosecution Service; the knowledge of juries that
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a rape conviction will in every case result in a long prison sentence whatever the circumstances and degree of seriousness in their view, and when they believe that such a sentence may not be merited on the particular facts of the case that they are trying. I urge the House to consider the amendment proposed by the noble and learned Lord, Lord Ackner, with favour. I hope that the Government will do so too.
6.15 p.m.
Baroness Lockwood: My Lords, the noble and learned Lord, Lord Ackner, said in moving the amendment that Clause 33 was written in absolute terms. I hope that my noble friend the Minister will resist the amendment, because in my view the law needs to be stated in absolute terms.
The question of rape is a very difficult one. It is different from all other kinds of crime. The victim of rape, as well as being a victim, often feels some sense of guilt herself. It is important that anyone who has been subjected to a crime of that kind can feel satisfied that the law will protect her and will give her an opportunity to present her case without intimidation and without fear of feeling re-tried and having once again to go through the ordeal of the rape.
The noble and learned Lord referred to the ground rules now laid down by the Court of Appeal. He said that there has been no occurrence of this kind of trial and cross-examination since May 1998. That is less than a year ago, and we do not know whether there will be similar cases in future.
Noble and learned Lords have the benefit of looking at cases from a wide perspective. However, not all their colleagues in charge of cases approach a case with the same impartiality and broad vision and breadth of experience. I should not like to leave this question to the discretion of the judge.
I accept that the noble and learned Lord has gone some way to meeting the criticisms that were made at an earlier stage. However, in an area of this kind, which is so sensitive and difficult, if there is to be a balance in any way it should be towards the victim, not towards the accused.
The Bill as drafted provides the opportunity for the accused to receive a fair trial. He may not have the right to cross-examine. But that is a small price to pay in order to give women the sense of security to come forward and present their case in a way that they would not be prepared to do if the law were less absolute than is now intended by the Bill. Were that to happen, we should not have the same security as we shall have under the Bill as drafted, and there will not be the same sense of fairness to victims of rape. I therefore hope that my noble friend will resist this amendment.
Lord Monson: My Lords, before the noble Baroness sits down, she spoke about the rights of the victim

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versus the rights of the accused? Should she not have said "the rights of the accuser" versus the rights of the accused? The accuser might not necessarily be a victim.
Baroness Lockwood: My Lords, perhaps the noble Lord is right. I meant the balance between the victim of the offence and the defendant who is accused of the offence.
Lord Goodhart: My Lords, on these Benches there are strongly held views on both sides of the matter. We have decided to treat it as a matter of conscience and not to impose a Whip.
I am unable to support the amendment. In saying so, I am fully aware that I am not a criminal lawyer. I do not have the experience of the noble Baroness, Lady Mallalieu, nor that of my noble friend Lord Thomas of Gresford. However, I am encouraged by the fact that an extremely powerful speech was made at the Committee stage by the noble Baroness, Lady Kennedy of The Shaws. I agreed with everything she said. That applies also to the remarks of my noble friends Lord Russell and Lord Lester.
I start from the basic principle that, first, it is wrong for the guilty to go free; secondly, it is wrong for the innocent to be convicted, and thirdly, as between those two, the conviction of the innocent is much the greater wrong. Clause 33 must be tested against those principles. Will it lead to the conviction of the innocent? I believe the answer to that is unequivocally no. No one would be behaving rationally if they chose to defend themselves when accused of a serious sexual offence, even if they were allowed to cross-examine the complainant. That includes cases of date rape as much as any other kind of rape.
The example given by the noble Baroness, Lady Mallalieu, is based on an assumption which can only be subjective. It is that the complainant in the case would not have made the same confession to a lawyer as she did to the defendant. There is no way in which that can be shown to be true. Indeed, it seems to me inherently unlikely. I cannot imagine circumstances in which an innocent defendant, given the opportunity to be represented, would choose not to instruct an advocate or would refuse to co-operate with an advocate instructed under Clause 37 to cross-examine on his behalf. I believe that that decision would be so irrational as to indicate that the accused needed protection from himself. Therefore, I believe that Clause 33 will not lead to the conviction of the innocent in a single case. The amendment is not necessary.
Will Clause 33 as it stands lead to more frequent conviction of the guilty? I believe that it may well do so. It is not certain, but there is a real possibility. The percentage of rapes that are reported and prosecuted is notoriously low. One reason is the reluctance of victims to face the trauma of giving evidence in court. That fear is made much worse by the possibility of being cross-examined by the defendant in person. It is true that in a few cases that has happened. It is also true that the Criminal Division of the Court of Appeal, through the noble and learned Lord the Lord Chief Justice, has given judges greater freedom than perhaps they thought they
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had previously to control any abuse of the right to cross-examination. Despite that, I believe that the mere possibility of cross-examination by the accused, however remote, is likely to deter women from reporting sex offences and giving evidence. The trouble with the amendment is that it opens up that possibility in theory. In practice it will never happen. It is impossible to imagine a case in which a judge will think that the interests of justice require the accused to be given the right to defend in person rather than to be defended by an advocate. Nevertheless, the amendment opens up that possibility. The amendment serves no useful purpose and may do harm. I propose to vote against it.
Lord Lester of Heme Hill: My Lords, I had not intended to participate in the debate. The noble and learned Lord, Lord Ackner, tempted me to do so by, I think, referring to me—I am sure it was not meant sarcastically—as some kind of guru of the European human rights convention. The noble and learned Lord is not noted for sarcasm. I am sure that he did not mean to be sarcastic. He knows that I am not a guru of anything at all, except in my mother's eyes. In no other eyes could I be regarded as a guru.
Lord Ackner: My Lords, I did not use; the word "guru". What I said was intended to be a compliment. I think that when the noble Lord reads Hansard he will find that that is how it reads.
Lord Thomas of Gresford: My Lords, I believe the words in the Independent this morning were "the venerable human rights lawyer".
Lord Lester of Herne Hill: My Lords, I feel rather old as I take part in this debate. Venerable I am not. And a guru? Only to my mother. I cannot claim to be more expert than anyone else in the area since I do not practise in the criminal field. I wish to respond to the temptation to say a word or two about why Clause 33 is not absolute and why it accords perfectly with the contents of the human rights convention. It is not absolute because all it does is forbid the direct personal cross-examination of the accuser by the accused. The Bill as a whole guarantees the right to a fair trial which is enshrined in Article 6 of the convention. The European Court of Human Rights, in a case called Croissant v. Germany, made clear that there was no absolute right to cross-examine in person. The convention as a whole represents a fair balance. All the articles, even the absolute prohibitions, have been interpreted as balanced.
What are the other rights that have to be balanced? They are the right not to be subjected to degrading treatment in a trial and the right to respect for personal privacy. I am satisfied that if we are to preserve those competing public interests and rights, they must be balanced by some body. On this occasion, although I deprecate statutes that interfere with judicial discretion where judicial discretion is necessary I believe that Parliament is right to make it clear that there should be no direct personal cross-examination for the reasons I have given. The judges can normally be

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trusted, but I can think of no circumstances in which it would be permissible, if one is trying to protect personal privacy, avoid degrading treatment and ensure a fair trial, for there to be direct personal cross-examination. That is not the same as saying that there should be no full right of cross-examination by instructing a competent advocate to cross-examine.
This is not an absolutist position; it is a position that fairly balances matters. I am sorry that wise judges have failed in the past to prevent two gross cases of abuse of human rights, the two to which the noble and learned Lord referred. For my part, two are quite enough. It is time to put an end to such cases and to make sure that there is not a third.
The guidelines of the noble and learned Lord the Lord Chief Justice are helpful. However, they give too much latitude—as does the noble and learned Lord's amendment—for a repetition of conduct of that kind. For those reasons, I entirely agree with everyone who has spoken against the amendment.
Lord Richard: My Lords, I have not taken part in any of the proceedings on the Bill although I have listened from time to time to a fair proportion of the discussion. I would find it difficult to support the Government if they were to resist the thrust of the amendment. I shall tell the noble Lord, Lord Lester, why. I have practised at the criminal Bar. I have had the opportunity of appearing in trials which would be caught by this provision. The idea that you can somehow create a proper balance, as he puts it, by imposing an absolute prohibition on the right of the defendant to cross-examine in person is a proposition which I find difficult to understand and even more difficult to accept. What the Government propose here is simply the removal of a right which, at present, exists on the part of the individuals to defend themselves if they so wish and to cross-examine if they so wish. My noble friend Lady Lockwood spoke in very sincere terms, but not in relation to the amendment. The argument seemed almost to be that one should abolish cross-examination altogether in rape trials.
As for the effect on the complainant, one has to take account of the fact that if a defendant wishes to defend himself, why on earth should he not be prepared to defend himself? Once the Court of Appeal, in the person of the Lord Chief Justice—
Lord Lester of Herne Hill: My Lords, I am most grateful to the noble Lord for giving way. Since he asked the question, would he accept that one answers it by saying that it is because it degrades the alleged victim, and therefore should not be permitted?
6.30 p.m.
Lord Richard: My Lords, with great respect, a trial is a trial. The person who is accused of a criminal offence is entitled to a fair trial and in that trial the evidence has to be tested. What this amendment and this discussion is about is the way in which that evidence should be tested in a criminal trial. If a defendant chooses to defend himself—and, with great respect, that
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has been a great tradition in this country over many centuries—he is entitled to do precisely that. Once you have a Court of Appeal judgment which actually regulates the way in which a defendant can cross-examine—because, as I understand that decision, it gives greater power and firmer guidelines to the trial judge to make sure that the cross-examination proceeds in a proper way—I will just finish this sentence, if I may, and then give way in a moment. What this argument is really about is whether proper cross-examination by a defendant in person should be prohibited. I am bound to say I find that an astonishing proposition. I will now give way.
Earl Russell: My Lords, I am most grateful to the noble Lord, Lord Richard. I entirely accept his proposition that the evidence should be tested, but can he give me one circumstance in which the evidence can be properly tested by the accused and cannot be properly tested by counsel?
Lord Richard: My Lords, I cannot invent an example off the top of my head, but I can think of one possibility where the accused, immediately before cross-examining the complainant, finds that his counsel is either unavailable or that he cannot get on with his counsel and the judge says that the trial has to go on. In those circumstances, is it seriously proposed that the defendant should not be able to cross-examine? I find that a very strange proposition indeed. I could imagine circumstances in which a court would say that it was unfair to a defendant not to be permitted to cross-examine, but at the end of the day this is a fairly simple issue. The simplicity of the issue can be summed up in one sentence as follows. Once the judges are prepared to control the way in which a defendant cross-examines in person, is it right for Parliament to take away his right to do it? I am bound to say that I am not convinced of that. I apologise to my noble friend on the Front Bench for doing what I have not done in the course of all these proceedings before, and that is to express my unease with the proposal that the Government are making. I would find it very hard indeed to support the Government if they were to oppose the amendment put forward by the noble and learned Lord, Lord Ackner.
Lord Thomas of Gresford: My Lords, the noble Baroness, Lady Lockwood, said that rape and sexual offences are very different from other crimes. That is true. However, the difference lies not so much in the harm or hurt that is caused to those who are the victims of crime. What really distinguishes rape in particular from other crimes is that in very many cases, although it can be shown that sexual intercourse has taken place, there is no visible injury and by the nature of things there is no corroboration, because sexual intercourse normally takes place in private.
In many cases—indeed in cases in which I have recently been involved—there is no complaint. The complaint may happen, as in the case to which I referred, some 40 years later. Those are some of the distinguishing features of rape trials which make them

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rather different from other cases and rather difficult to deal with. What my noble and venerable friends do not entirely understand, but those of us who have spoken who have practised at the criminal Bar do, is the delicate balance of a criminal trial: the dynamics of a criminal trial under an adversarial system.
What it requires is that there be counsel of reasonably equal standing, that the judge be fair and does not intervene, that witnesses be called on either side and be subject to fair cross-examination controlled by the judge, and that after the summing-up the decision is made by a jury. When people go on about the rate of acquittals in rape cases I think they rather tend to forget that it is 12 ordinary people, selected by lot, who actually make the decision. There is not some kind of lawyers' conspiracy as a result of which rape conviction levels are low. It happens because ordinary people, who understand the witnesses who are brought before them and who have common sense on their side, realise that the charges are not made out.
The Government's proposal introduces into this delicate balance of a criminal trial an entirely novel and strange element: that is to say, that a defendant should no longer be entitled to defend himself but should have somebody appointed to do it for him. Once you introduce a person who appears on behalf of a defendant who is reluctant to have him, who perhaps objects to having him and who gives him no proper instructions and who does not fully understand the case he is putting forward, there is a twist put into the whole procedure which will result in injustice. That does not mean to say it will necessarily result in the acquittal of a defendant— it may very well result in his conviction—but it does twist all the procedures that have developed into safeguards for the individual and in the public interest over many centuries. I really have to disagree with my noble friend Lord Goodhart, who sees nothing wrong with this and thinks that it is possible to introduce this new element into a criminal trial in front of a jury without distorting the result.
The arguments that are advanced against this amendment are that cross-examination by the individual defendant may prevent complaints coming forward from people who are truly victims. It may have a deterrent effect and, as the noble Baroness, Lady Mallalieu, put it, this is legislation to correct a misconception. I believe that where the Government fall down on this topic is that they make no attempt to inform the public of what is happening in the criminal justice system. For example, there is no attempt to point out to the public the training that judges undergo, that no judge can sit on a rape case unless he has what is colloquially called "the rape ticket"—that is to say, that the Lord Chancellor's Department has realised that he is of sufficient weight and experience to conduct cases of this sensitivity. Rather do the Government go along with the press and the headlines, and seek by legislation to cut down the discretion and the control of the judiciary, to put a cap upon what they customarily do.
It is rather ironic that this Bill and the amendments that have been brought forward by the noble Lord, Lord Williams of Mostyn, do a great deal to improve the position of the press. The press cannot be challenged.
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The press has to be supported, and so if the press has headlines which say that rape is rampant and something has to be done about it, then this Government, instead of informing the public about the true situation, take a different view.
In Committee, the noble and learned Lord, Lord Bingham, said that miscarriages of justice must be prevented at all costs. That was challenged by the noble Lord, Lord Williams of Mostyn. He thought that was not necessarily so and that miscarriages of justice should not be prevented at all costs. He thought that there is a balance to be struck which should be in favour of the victim. That is the expression used by the noble Baroness, Lady Lockwood: there has to be a balance in favour of the victim, not the accused. If one looks at the left-hand panel of your Lordships' Chamber one observes the figure of Justice, with the balance evenly held. That is the tradition of this country and of the criminal justice system, which must be preserved at all costs.
The amendment seeks to give to the judge the power to come to an appealable decision on whether it is unfair to the defendant not to allow him to cross-examine. It puts the matter in his hands. At an earlier stage today the noble Lord, Lord Williams, said that those who upheld the role and discretion of judges were deeply conservative. I do not believe that that is true. In the liberal tradition of this country we support judges and oppose the statutory imposition of fetters on their discretion. I support the amendment.
Viscount Brentford: My Lords, it is important to bear in mind that there are two aspects to be considered when debating this amendment. The first is justice in the particular case that is being heard. From all that I have heard from extremely learned counsel and judges I believe that to be fairly evenly balanced on the basis of the Bill as presently drafted. The other aspect that I wish to emphasise is that there is no justice for a woman who has suffered rape but is not prepared to give evidence to lead to a prosecution of the rapist. From my researches a good number of women suffer rape but ask whether there is any danger that they will be brought face to face with their alleged rapists who will then be able to cross-examine them. On the basis of the Bill as presently drafted, the police or solicitor—whoever the woman speaks to—will be able to give the unequivocal answer that there is no possibility of the accused being able to challenge her face to face. That is why I prefer the Bill as drafted without the amendment.
I fully understand the fact that judges are likely to act properly and sensibly. The position is evenly balanced as the Bill is drafted. However, I believe that there will be a lack of justice if the amendment is accepted because some women will not be prepared to give evidence in court against the accused. Therefore, I shall vote against the amendment.
Lord Jacobs: My Lords, I sit among a large number of lawyers, so in the circumstances it is perhaps a little inopportune for a layman to get up to speak. I have listened very carefully to the debate. The main argument in favour of the amendment appears to be that not only

1201
must the defendant be given the opportunity to cross-examine but that reliance can be placed on judges not to let matters go too far. However, so far no lawyer has mentioned the difficulties faced by judges. I refer to the example of the two cases in which cross-examination went on for days on end. In those examples the judges were worried, probably rightly, that if they curtailed the cross-examination the matter might go to appeal. It is difficult to decide how far the cross-examination should proceed. All of us sitting here would probably say that one day's cross-examination would be ample. However, under some circumstances it might go on for very much longer than that. For that reason, having heard all of the arguments, on balance I believe that the amendment should be opposed.
6.45 p.m.
Lord Cope of Berkeley: My Lords, this matter was discussed at an earlier stage of the Bill. I shall not attempt to discuss all of the arguments that have been put forward, even if I were capable of so doing. On earlier occasio0ns I have made clear that this is certainly not a party matter but a matter of conscience. In this matter I speak only for myself. Once again the noble and learned Lord, Lord Ackner, has moved an amendment and explained it with his usual clarity. It has been made clear again that this is a difficult issue on which to strike a balance. In practice, the cases that it covers are rare. Few defendants accused of rape conduct their own defence, and usually it is wise not to do so. The few who do conduct their own defence and cross-examine the complainants often prejudice their cases in the eyes of the jury. As the noble and learned Lord informed us, the Court of Appeal has already limited what can be asked and the way in which cross-examination is conducted.
In spite of all that, and although it is a rare occurrence, whether we like it or not this has a very big effect on the public mind. If somehow or other we could persuade the public to listen to and take account of all these debates, conceivably their minds might be changed, but I do not believe that there is any realistic possibility of that at the moment. The possibility of the complainant being cross-examined by the attacker, remote as it may be, and controlled by the rules of the Court of Appeal as it may be, certainly adds to the pressure on the victim against going into the witness box. I say "victim" because here I refer to the genuine complainant. I realise that there are other cases. I am aware from some constituency cases of which I have knowledge, apart from other reports, how difficult it is to persuade genuine victims to be prepared to go into the witness box. Without them the case fails. If those who try to ensure that justice is done can say to someone whom they believe to be a genuine victim, as they could if the Bill were passed without amendment, that the defendant—usually a man—will not be able by law to cross-examine, that is a much more powerful and persuasive argument than to say, as they would have to say otherwise, that it is very unlikely that he will cross-examine but that if he does he will be constrained
1202
by the rules of the Court of Appeal. That is not nearly so persuasive an argument to use in these very emotional and difficult cases.
I believe that if the Bill is unamended there will be fewer miscarriages of justice resulting from the failure of the victim to give evidence. One may describe that as lack of access to justice rather than a miscarriage of justice. Whatever way one looks at it, it is certainly a failure of justice. I do not claim that this clause by itself, or that the Bill as a whole with the other provisions relating to screens, video and other forms of protection, will completely end the reluctance of victims to give evidence—there are many other reasons for that reluctance—but I believe that it will help. In that way it will reduce the number of miscarriages of justice. For that reason, and speaking only for myself, I shall vote against the amendment.
Lord Williams of Mostyn: My Lords, we have discussed this matter at some length today. I make no criticism of that because this is an important matter. We have also discussed it at significant length on earlier occasions. Perhaps I may focus for a moment on the terms of the amendment. The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, seek to introduce, at page 24, line 29, the entitlement of a judge to give leave for personal cross-examination in rape cases. The criterion that the judge must apply in coming to his judgment is whether he is satisfied that it would be unfair to the defendant not to allow it. There is no reference there to any of the issues which have been spoken of about the anguish caused to genuine complainants.
Several propositions have been put forward which are either inaccurate or unreasonably based. On the last occasion but one the Lord Chief Justice put forward his proposition that one had to prevent miscarriages of justice at all costs. I venture to disagree with that. I give the well known example that in some jurisdictions one cannot achieve a conviction for rape without the evidence of two male witnesses. If one wants to go along the route of "at all costs"—I believe it to be unduly absolutist—one can do so, but I decline to start on that journey. The noble Lord, Lord Thomas of Gresford, said that these were safeguards produced over many centuries. No, my Lords, it was only 100 years ago that a defendant could give evidence in a criminal trial on his own behalf. Over the centuries most defendants were not represented, let alone at public expense.
I do not put these as tendentious points. I simply alert noble Lords that when the argument refers to "over the centuries", occasionally it is important to inform oneself about past history.
Lord Thomas of Gresford: My Lords, surely the Minister will concede that over the centuries a defendant defending himself was entitled to cross-examine.
Lord Williams of Mostyn: My Lords, of course he was entitled to cross-examine, but until 100 years ago

1203
he was not entitled to give evidence. I put it as part of the picture that we need to have clearly and accurately in our minds.
My noble friend Lady Mallalieu said that we should be cautious, indeed very careful, about interfering with the right to challenge and explore accusations. It is specifically preserved in the Bill. Provision is made for representation at public expense. Provision is made for the judge to consider warning the jury that the mere fact that an otherwise self-represented defendant was not able to cross-examine a complainant does not derogate from his case or the value of the cross-examination. There is no question of stopping the challenge and exploration of evidence given by the complainant.
My noble friend Lord Richard asked how it could conceivably be right to prevent a defendant cross-examining on his own behalf if he wished. I can deal with that. He also raised the related point of what happens if the lawyer is not available. The position would be exactly the same as occurs now if the lawyer is not available. The judge dealing judicially with the matter will allow an adjournment; and he will allow a proper adjournment because, if he does not do so and insists on an unrepresented defendant continuing, he will find that the conviction will be overturned (rightly) in the Court of Appeal (Criminal Division).
I turn to the fundamental point raised by my noble friend Lord Richard. In our system of criminal justice, how can it be right to stop a man cross-examining in person if he wishes? I can give the answer immediately. That has been the position in our system of criminal jurisprudence for some years past now. If one is charged with the incestuous rape of one's daughter, or any other sexual offence against one's daughter, one is not allowed to cross-examine her in person.
Let me take that example further forward. We have heard the examples given: that a kind, gentle cross-examination may effectively sometimes bring about the immediate withdrawal of the allegations. That is not the scheme we have with children. I have not heard it contended myself, nor seen any evidence of it, that that has brought about a miscarriage of justice. So sometimes— I put it gently—absolutist propositions of a golden time, or on how things were in principle, simply do not bear even cursory examination.
We must recognise— there is abundant material to bring us to that recognition— that many women who are complainants in rape cases will not submit themselves to the further ordeal of the court process. Frequently a woman officer detailed to deal with them has to tell the complainant that there is a prospect of cross-examination in person. If the complainant asks the CPS representative, he or she has to say that there is that prospect. The complainant might say to the woman officer trained in investigation of rape, "But when?". If by some mischance your Lordships support the amendment the answer would be, "If the judge thinks it is unfair to the defendant not to be at liberty to do so". I cannot imagine many women wanting to continue with their complaint on that basis.
It is true that the Milton Brown and Ralston Edwards cases led to guidelines. That does not cure the mischief. The mere prospect that in some circumstances a judge
1204
may decide that the position would be unfair to the defendant, and that personal cross-examination can be allowed, will stop women making complaints, in particular, I repeat, when the police officer and the CPS representative have to give the truthful answer, let alone if the woman goes to her solicitor for an independent view, as was pointed out earlier by the noble Viscount, Lord Brentford.
There is no suggestion in the Bill that competent cross-examination can be disqualified. There are safeguards to which I have referred. If the Milton Brown and Ralston Edwards cases were never to occur again, there would still be that significant fear that women would be subjected to a cruel and degrading experience which is forbidden by the European convention.
I do not wish to join unnecessarily in the general debate between the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Lester of Heme Hill. But occasionally your Lordships— not myself, I think— are guilty of quotation of previous excerpts from Hansard. I refer to col. 1400 of the Official Report of 1st February 1999. The nobel and learned Lord, Lord Ackner, I agree, did not say "guru". There was reference to "in-house expert" which may or may not be offensive! I take no part in that, except to be deeply helpful! The Lord Chief Justice said:
"I have never suggested in this House or anywhere that the provision is contrary to the European convention. The argument of the noble Lord, Lord Lester, is one that I readily accept".
When the noble Lord's mother regards him as a guru, she is absolutely right and I can prove it by the Lord Chief Justice's unsolicited testimonial.
I have thought carefully about everything that has been said, and have reread all the debates. There will not be a compromise on principled view. On behalf of the Government I do not accept the amendment. I do not say that discourteously. I simply put my position perfectly plainly. I recognise that when professional colleagues whom I have known over the years come to a view, it has to be taken seriously. The noble Lord, Lord Thomas of Gresford, and I in past times have both prosecuted and defended in rape cases. That does not make us necessarily experts in the conclusions to which we come, plainly because we come to different ones. But the arguments that were deployed by a number of my colleagues and judges whom I respect have to be attended to. I believe that they have got it wrong. I do not say that on the basis of absolute certainty but after weighing up the arguments.
If a man is accused of rape, as the noble Lord, Lord Cope of Berkeley, said, not all complaints are genuine; and as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Ackner, said on earlier occasions, the penalties for rape are extremely serious. We say that in these circumstances, which we believe to be genuinely analogous to the prohibition presently in our law, the defendant will have representation; he will have it at public expense; and the judge has duties to give specific warnings to juries. If a defendant says, "I wish to conduct the whole of my trial myself?, the scheme is flexible enough to enable one to say, "You may conduct the whole of the trial yourself, except when the woman complainant"— I use the word

1205
"complainant" because she has not at that stage been demonstrated by the verdict to be a victim—"gives evidence. The female complainant will have to be cross-examined on your behalf by counsel provided by the state. "That is entirely consistent with what the noble Lord, Lord Lester, said is a compliance with our obligations under the European Convention.
I cannot assist your Lordships further. I respectfully dissent from what is being said by those whose opinions I respect. I believe that we have reached the correct conclusion. I do not believe that it has led to miscarriages of justice in children's cases. I believe that the noble Lord, Lord Goodhart, the noble Viscount, Lord Brentford, and others are right when they say that rape is a crime which is in a category different from other grievous crimes. I shall not be able to say to a woman complainant, if she asks me, "Well, you can rely on the guidelines in Brown and Edwards. ", because I do not believe it.
7 p.m.
Lord Ackner: My Lords, we have had a long debate which in many ways has covered the points. Therefore, I shall be brief. The noble Earl, Lord Russell, asked me how on earth it could be unfair to deprive a defendant of the right to cross-examine in person. I find no difficulty in that. If one is dealing with an alleged rape case where for years the parties have lived together as man and wife, as partners or whatever, and the allegation is untrue, the defendant in person is in a far better position to be able to catch the complainant out in the answers she gives because of the way he can remind her of other events which corroborate his point. The dishonest answers to his questions can be quickly followed by further questions which, in the end, may either establish to the jury's satisfaction that it is an untrue bill or cause her, as the noble Baroness indicated in one case, to say, "You are quite right, I have made this up. We had a row and I am trying to get even with you. ".
The noble Lord, Lord Goodhart, was good enough to admit that his practice does not involve dealing with crime. He says that he cannot conceive that the result of this embargo on cross-examination could possibly lead to an innocent person being convicted. Putting it briefly, the noble and learned Lord the Lord Chief Justice said that one of the results could be that innocent people are convicted and guilty people are acquitted. That is in Hansard; it was his view.
It is very easy to see how the guilty person can be convicted because no judge can stop the defendant in his final speech indicating how unfairly he has been treated by his inability to cross-examine, although every other stage of the defence was conducted by him personally. It is very easy to make out a situation of unfairness, the little man being faced by the heavier personalities of the prosecution.
The constant reference to "victim" instead of to "complainant" led the Lord Chief Justice to say, which I quoted in the debate on 22nd June 1998:
"Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the
1206
complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not".
The emotive nature is one of the problems of a rape trial.
I do not know who accepted that under the Bill as now drafted the situation is evenly balanced. I certainly did not. It is unevenly balanced. It was evenly balanced when the defendant had the right to cross-examine personally or leave it to a professional to do so.
I conclude by referring to briefing material sent to me by Women Against Rape to deal with the debate which began when the noble Baroness, Lady Byford, drew attention to a Home Office report on the subject. It reads:
"Re: question from Lady Byford to be debated in the Lords on 22 June [1998] proposing to remove the right of defendants accused of rape from cross-examining the witness.
"We strongly oppose this proposal, which was also put forward in the recent Home Office Report on vulnerable and intimidated witnesses, Speaking Up for Justice.
"This change is not in the victim's interest, nor what most victims have demanded: it would not deal with the pervasive biases and discrimination women and children face in the criminal justice process … Removing the right of men accused of rape to defend themselves would not change the way victims of rape are treated in court by barristers who are routinely allowed to ask irrelevant questions about victims' medical and sexual history … The problem is not who asks the questions but which questions they are allowed to ask.
"Also, removing the right of defendants to conduct their own defence would set a very dangerous precedent for civil rights generally. The Report already recommends extending this ban to other offences, confirming our fears. This fundamental change to the law would not only affect the defendant's right but also the way rape cases are dealt with".
It ends in this genial way:
"The experiences, needs and demands of rape survivors rather than the agenda of opportunistic and populist politicians and the media must frame the public debate and changes in the law".
It does not appear as though the powerful support for the Bill as drafted is the same as the support from outside which was anticipated. This is a serious matter and it is high time that we had the opinion of the House. I therefore commend my amendment to that end.
7.9 p.m.
On Question, Whether the said amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents, 47; Not-Contents, 149.

Division No. 2

CONTENTS

Ackner, L. [Teller.]

Elliott of Morpeth, L.

Aldington, L.

Falkland, V.

Barber, L.

Fookes, B.

Cadman, L.

Fraser of Carmyllie, L.

Campbell of Alloway, L.

Harmar-Nicholls, L.

Carnegy of Lour, B.

Harmsworth, L

Carnock, L.

Harris of Greenwich, L.

Clark of Kempston, L.

Hayhoe, L.

Courtown, E.

Holdemess, L.

Craigavon, V.

Hooson, L.

Cross, V.

Hurd of Westwell, L.

Darcy de Knayth, B.

Ironside, L.

Dundonald, E.

Kintore, E.

1207

Lane, L.

Sharples, B.

Leigh, L.

Stockton, E.

McConnell, L.

Stoddart of Swindon, L.

McNair. L.

Swinfen, L.

Mancroft, L.

Thomas of Gresford, L. [Teller.]

Monson, L.

Thomas of Gwydir, L.

Munster, E.

Vinson, L.

Nunbumholme, L.

Weatherill, L.

Pearson of Rannoch, L.

Wharton, B.

Renton, L.

Windlesham, L.

Wynford, L.

NOT-CONTENTS

Acton, L.

Hollis of Heigham, B.

Addington, L.

Howie of Troon, L.

Alli, L.

Hoyle, L.

Amos, B.

Hughes, L.

Ampthill, L.

Hughes of Woodside, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Ashley of Stoke, L.

Irvine of Lairg, L. [Lord Chancellor.]

Bach, L.

Barnett L.

Islwyn, L.

Blackstone, B.

Jacobs, L.

Blease, L.

Jay of Paddington, B. [Lord Privy Seal.]

Borrie, L.

Bragg, L.

Jeger, B.

Brentford, V.

Jenkins of Putney, L.

Brookman, L.

Kennedy of The Shaws, B.

Brooks of Tremorfa, L.

Kennet, L.

Burlison, L.

Kirkhill, L.

Byford, B.

Lester of Herne Hill, L.

Carlisle. E.

Levy, L.

Carmichael of Kelvingrove, L.

Linklater of Butterstone, B.

Carter, L. [Teller.]

Lockwood, B.

Castle of Blackburn, B.

Lofthouse of Pontefract L.

Christopher, L.

Lovell-Davis, L.

Clarke of Hampstead, L.

Macdonald of Tradeston, L.

Clement-Jones. L.

McIntosh of Haringey, L. [Teller.]

Clinton-Davis, L.

Cocks of Hartcliffe, L.

Mackenzie of Framwellgate, L.

Colwyn. L.

Maddock, B.

Cope of Berkeley, L.

Mar and Kellie, E.

David, B.

Masham of Ilton, B.

Davies of Oldham, L.

Mason of Barnsley, L.

Desai, L.

Merlyn-Rees, L.

Dholakia, L.

Miller of Hendon, B.

Dixon, L.

Milner of Leeds, L.

Donoughue, L.

Molloy, L.

Dormand of Easington, L.

Monkswell, L.

Dubs, L.

Morris of Castle Morris, L.

Eden of Winton, L.

Morris of Manchester, L.

Evans of Parkside, L.

Murray of Epping Forest, L.

Falconer of Thoroton. L.

Newby, L.

Farrington of Ribbleton, B.

Nicol, B.

Fitt, L.

Norton of Louth, L.

Gilbert, L.

Orme, L.

Glenamara, L.

Palmer, L.

Goodhart, L.

Peston, L.

Goudie, B.

Pitkeathley, B.

Gould of Potternewton, B.

Plant of Highfield, L.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L.

Grantchester, L.

Prys-Davies, L.

Gray of Contin, L.

Ramsay of Cartvale. B.

Gregson, L.

Randall of St Budeaux, L.

Grenfell, L.

Razzall, L.

Hacking, L.

Rea, L.

Hampton, L.

Renwick of Clifton, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Hardie, L.

Rowallan. L.

Hardy of Wath, L.

Russell, E.

Harris of Haringey, L.

St. John of Bletso, L.

Haskel, L.

Sandberg, L.

Hayman, B.

Sawyer, L.

Hilton of Eggardon, B.

Sefton of Garston, L.

Hogg of Cumbernauld, L.

Sewel, L.

1208

Sharp of Guildford, B.

Turner of Camden, B.

Shepherd, L.

Uddin, B.

Simon, V.

Ullswater, V.

Simon of Highbury, L.

Walker of Doncaster. L.

Smith of Gilmorehill, B.

Wamer, L.

Steel of Aikwood, L.

Watson of Invergowrie, L.

Stone of Blackheath, L.

Wedderbum of Charlton, L.

Strabolgi, L.

Whitty, L.

Taylor of Blackburn, L.

Wilcox, B.

Thomas of Macclesfield, L.

Williams of Crosby. B.

Thomas of Walliswood, B.

Williams of Elvel, L.

Tomlinson, L.

Williams of Mostyn, L.

Tope, L.

Winchilsea and Nottingham, E.

Trefgame, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 40 [Restriction on evidence or questions about complainant's sexual history]:
Lord Ackner Lord Ackner moved Amendment No. 16:
Page 29, line 2, leave out ("and") and insert ("or").
The noble and learned Lord said: My Lords, this is almost a sister amendment to the one we have just dealt with. What one needs to do is compare the statutory provision as it now is with the statutory provision which the Government wish to put in. The statutory provision is found in the Sexual Offences (Amendment) Act 1976. That Act came into existence as a result of a special committee presided over by Mrs. Justice Heilbron because of anxieties which were being felt in relation to the law on rape. Provision was made with regard to restrictions on evidence in rape cases. The relevant provision is quite short. It is Section 2(1) and 2(2). Section 2(1) states:
"If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant?
and these words are important,
"with a person other than that defendant".
Subsection (2) provides:
"The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
Guidance has been given and I shall not deal with it in detail. However, it is convenient to refer briefly to the case of Viola in 1982. In the words of the then Lord Chief Justice, the noble and learned Lord, Lord Lane, that set out very clearly that the first question which a judge must ask himself is:
"Are the questions proposed to be put relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put? If they are not so relevant, that is the end of the matter".
The second matter which the judge must consider is:
"if the questions are relevant, then whether they should be allowed or not will of course depend on the terms of Section 2",

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which I have read out.
What that comes to is that it would be unfair to a defendant if it was more likely than not that the particular question or line of questions, if allowed, might reasonably lead a jury properly directed in the summing-up to take a different view of the complainant's evidence from that which they might have taken had the question or series of questions not been allowed.
One turns now to what is suggested in its place. I have referred to it as a convoluted piece of drafting and I shall not read the whole of Clause 40. However, I shall read out the opening words because it is important that one has them in mind. Clause 40 states:
"If at a trial a person is charged with a sexual offence, then, except with the leave of the court… no evidence may be adduced, and … no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant…The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied",
and here come the two matters on which the court must be satisfied, and they are cumulative,
"(a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case".
Subsection (3) states:
"This subsection applies if the evidence or question relates to a relevant issue in the case and either…that issue is not an issue of consent; or…it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged …(i) to have taken place at or about the same time as the event which is the subject matter of the charge against the accused, 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".
I then jump to subsection (5) which states:
"This subsection applies if the evidence or question
…relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and…in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused".
It could well occur that the matters required under subsection 2(a)—that subsection (3) or (5) applies—do not apply but the judge, after careful consideration, considers that a refusal of leave might have the result of rendering unsafe a conclusion of the jury as a result of refusing that material.
That is an extremely odd situation to find on the face of a Bill; that a trial is to proceed notwithstanding that the judge has been obliged by Parliament to reach a decision, which,
"might have the result of rendering unsafe a conclusion of the jury".
There will be those on the Bench who may well take the view that if a judge reaches that decision he should stop the case because to continue could have the result of an unsafe conviction which can then be put right only by an appeal.
The Minister was asked to deal specifically with that by my noble friend Lord Bledisloe on the second day of the Report Stage; that is, on 8th March 1999. The noble Viscount said:
"My Lords, before the noble Lord sits down"
referring to the Minister,
"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 evidence would render the conclusion unsafe but, nonetheless, he is debarred from admitting it by subsection (3) or subsection (5)".
That provoked a very short answer in these terms:
"My Lords, we need to turn our minds to the proper analysis of Clause 40". —[Official Report, 8/3/99; cols. 35 and 36.]
That is what I seek to do and I hope, on this occasion, that we shall receive an answer from the Minister.
Perhaps I may show your Lordships how this may work in practice, just to highlight the absurdity. As I see it, if I were the defendant, I could not ask the question of the complainant, "We have lived together for five years, have we not?" because that is not permitted, as I understand it, by the provisions. "I am not asking about something contemporaneous; I am asking about something in the past, but it is immensely relevant because it will be the foundation of my defence that the lady consented".
Imagine a case where a man has been led on to have sexual relations with a woman and, after that experience, she tells him, "I am a prostitute and my fee is £100. If you don't pay me that fee, I shall allege that you raped me". As I see these provisions, I would not be allowed to ask that question. Again, that is not dealing with contemporaneous conduct, as she has been a prostitute for many years. I do not suggest, for one moment, that the fact that a woman has been a prostitute means that she consented to anything; but, where there is a clash between the complainant and the defendant, that is one of the factors that one would expect a jury to take into account.
I have sought to right this by a very simple process of taking the word "and" out of paragraph (a) so that it is not cumulative, and putting in its place "or". So, the material would go to the jury if the court considered that the refusal of that material might have the result of rendering unsafe a conclusion of the jury, or that material would go before the jury if subsections (3) and (5), which I have read out, apply.
I am sorry that our resident expert on European law is not with us but, in my respectful submission, I would have suggested that subsection (2) as it stands, with the word "and", is in breach of the relevant convention because it indicates on the face of the Bill that there can be a situation in which material which is relevant has been refused because it does not come within a couple of categories but the judge, nevertheless, is put in a position where the trial is apparently to proceed although the result may well be an unsafe conviction.
I am sorry that at the moment there is no real prospect of an authoritative contradiction, but I would have submitted that such a provision on the face of a Bill cannot enable the Minister's certificate about

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compliance with European human rights to be valid. In those circumstances, I beg to move my amendment, confident that if it is agreed to we would be complying with the European Convention on Human Rights and there would be no real prospect of an unsafe conviction.
7.30 p.m.
Lord Desai: My Lords, my Amendments Nos. 17 to 20 are grouped with those of the noble and learned Lord, Lord Ackner, and, for the convenience of the House, I shall speak to them together.
As noble Lords are aware, I am not a lawyer but a lay person. In Committee I tried to argue on the side of the complainant about Clause 40. I was unfortunately not present on the second day of Report when the amendments tabled by my noble friend were debated and accepted. However, if one reads Hansard, one sees that much of the debate was not on those two amendments but on others which argued on the side of the lawyers and judges rather than that of the lay complainant, if I may so describe it.
These amendments concern Clause 40(3) which was introduced on Report. I should like to deal with them in turn. In a previous debate, the noble Viscount, Lord Brentford, made an interesting comment which I should like to use as a preface to my speech. It is right that the legal system should ensure that although the guilty may escape conviction, no innocent person shall be convicted. That is quite right.
However, it must be said that although that may be true on a case-by-case basis— and, indeed, it is a vital freedom that we have— the whole system has failed women in rape cases. That can be seen by the lack of complaints. Obstacles are set up, whether legal or psychological, which prevent women from coming to court. The literature, which is now quite extensive, shows that there are bitter complaints about the way the courts deal with such cases. That indicates to me, as a lay person, that something must be done about the system. Certain presumptions in our culture are taken as obvious truths and are not even questioned.
My Amendment No. 17 deals with the first of them, which is all about belief in consent. I remember saying in Committee that, as far as I am concerned, consent is consent, and nothing else. There has to be real consent at the moment when the incident is alleged to have happened. I take an almost existential view of this— that the past and the future do not matter and that all that matters is whether, at the moment in question, there was consent. I remember that in Committee my noble friend Lady Mallalieu introduced the fanciful concept of "the balcony scene". I said that I did not care how many times a woman had staged the balcony scene, or even if it happened four hours before the incident; the point was that if she did not consent at that moment, she did not consent.
The idea that belief in consent can be admitted as a ground of defence can almost be described in the words of the noble Viscount, Lord Tenby, who referred to driving a coach and horses through the provisions. That would damage Clause 40, which was very good when it started out.
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In a largely sexist society, some men believe that all women are there for them to have sexual relations with and they cannot get it into their heads that a woman has a mind of her own and an autonomy of her own and that when she says "No", she may actually mean "No" Regardless of what such men's friends may have told them about the woman or what they may think that they have heard, they must realise that "No" means "No".
That view was taken by the Law Commission. I refer to section 7.19 on page 95 of its Consent and the Criminal Law, which states
"Arguably this should depend on the nature of the defendant's reasons, (if any) for believing that she does consent when she obviously does not. If, for example, he thinks so merely because he has been told by a third party that he can expect her to resist, we consider that it is arguable that such a basis for his conduct should be regarded as simply illegitimate— that, if he chooses to ignore the woman's actual response in favour of what someone else has told him, he must take the consequences, because his conduct involves a denial of her autonomy and a lack of respect for her status as an individual with a will of her own. Similarly, if he thinks that she consents because he thinks that when a woman says "no" she means "yes", it is equally arguable that he is relying on an attitude towards other people (female or male) which is no longer acceptable. The question is whether society should state clearly that a man who ignores a woman's express refusal will not be permitted to claim that he did not think she meant it".
That is a clear statement about belief in consent.
I have tabled Amendment No. 17 because I am worried that, although sexual history cannot be introduced to show sexual consent, it may be brought in by the back door to show something about belief in consent. Belief in consent would then become another spurious ground on which many matters which we did not want to be introduced into a rape trial would be introduced. That is why my Amendment No. 17 seeks to insert the words on the Marshalled List into subsection (3)(a).
Amendments Nos. 18 and 19 are slightly different. They relate to the concept of similar behaviour. Amendment No. 18 is cast much more broadly. Amendment No. 19 is much more narrowly drawn and deals with subsection (3)(b)(ii). Again, the same kind of issues arise. When we speak about "similar behaviour", relations with third parties might be introduced as might previous history. Indeed, all sorts of what I would consider to be irrelevant details would arise, such as those not relating to the moment of the alleged incident.
I do not like the 24-hour provision which has been introduced because I think that 24 hours are a long time in a person's life. A person may change his or her mind in a period of 24 hours. People can get divorced in 24 hours— or even married! Therefore, with regard to the "similar behaviour" statement, we should make quite sure that any evidence being admitted has probative value. The notion of probative value was cited in the Canadian case. I am not a lawyer so I shall not refer to that except generally. If such evidence is introduced, one must be quite sure that it is not cited only to prejudice the jury or to upset the complainant. It must have probative value. As it is now quite late, I rest my case there and commend my amendments to the House.
7.45 p.m.
Lord Monson: My Lords, in introducing his series of amendments, the noble Lord, Lord Desai, suggested that there were two opposing camps, so to speak, in this matter. He referred to a lawyers' and judges' side in opposition to the lay and complainants' side. As a layman myself, and someone who is just as ignorant of the law as the noble Lord, I do not think that it is quite so simple. The noble Lord has forgotten one important group. What about the unjustly accused?
Let us consider the case of a girl student who, from time to time, tends to drink too much, as students often do and as students have always done throughout history. One evening, in an alcoholic haze, she allows herself to be taken advantage of, to use a very old fashioned phrase, and the next morning she wakes up stone cold sober, albeit with a throbbing headache, and notices with horror a male student in bed next to her. She sincerely but mistakenly believes that she never consented and that therefore she has been raped. What is the poor male student, the innocent male student, to do if he is not allowed, for example, to cite previous cases of similar behaviour on the part of the lady in question?
Lord Goodhart: My Lords, I have a good deal of sympathy with what the noble Lord, Lord Desai, suggests, but I think that he may be on the wrong track. The problem is not in the procedure, but in the substantive law. It seems to me that the English law has gone wrong in allowing unreasonable belief as a defence to a charge of rape. To make that change in the law so that belief in consent was only a defence if it was reasonable would involve a change in the substantive law on rape, and that is not something that can be done in this Bill.
The problem with the noble Lord's amendments is that they would exclude relevant evidence not only in cases where belief was unreasonable, but also in cases where the belief was reasonable. That is why I do not feel able to support the noble Lord in his amendments although I have much sympathy with the motivation behind them.
Baroness Mallalieu: My Lords, the noble Lord, Lord Desai, says that questions asked in this area must have probative value. That is one of the tests currently applied under the present law. Questions as to previous history are not permitted by the judge unless they have probative value.
The noble Lord said that the issue is whether the woman consented at that moment and that what happened previously and what happened subsequently are irrelevant. However, the jury has to decide whether the woman consented at that moment. It may well be that in certain circumstances things which have happened before or subsequently may assist members of the jury to reach the right verdict about her view at that time. If a woman says "No" and the defendant then tries to advance the defence that he believes that she consented, he is unlikely in my experience to be believed by a jury. For those reasons, I cannot support the noble Lord's amendment, but I strongly support that tabled by the noble and learned Lord, Lord Ackner.
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The Minister must be aware that there is a profound dismay at the Criminal Bar about the provisions of Clause 40; it is one shared by many of the judges who will have to try the cases. The clause is widely felt to be not only unnecessarily complex, but also draconian in its effects. My best efforts at earlier stages of the Bill and in subsequent correspondence with the Minister, for which I thank him, failed to dissuade him from his belief that he has "got Clause 40 about right". I leave it tonight to others and also to those in another place to try to amend the clause. I have little doubt that should it reach the statute book in its present state without amendment, in common with the noble and learned Lord, Lord Bingham of Cornhill, when he spoke at Committee stage, justice in some cases will not be done.
Lord Thomas of Gresford: My Lords, it is always difficult to comprehend the sort of circumstances that can arise in a rape trial before it happens. But I want to pose a simple situation. Suppose a man and woman are living together happily for a period of time but then another man comes into the woman's life and she runs off with him. He then leaves her and she returns to her original partner. It is not a complicated set of facts; it is something that might frequently happen. Suppose she then has a row with her original partner about having run away with the other man and following that row she goes to the police and complains that her partner raped her.
That is not caught by subsection (3), which says:
"This subsection applies if the evidence or question relates to a relevant issue in the case and either … (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged … (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".
It has nothing to do with that situation; it has nothing to do with subsection (1).
At the trial for rape, counsel for the original partner wishes to put to the complainant that she made the complaint because of a row that she had over her going away with the other man. He cannot do it. Subsection (3) does not apply; subsection (5) does not apply. Indeed, such a question might be caught by subsection (4), which deals with material which impugns the credibility of the complainant as a witness.
So the very essence of the quarrel between the two, which the defendant says caused her to make the complaint of rape, cannot be investigated. It does not appear before the jury at all. The judge hears about it in the absence of the jury and determines that refusal of leave to cross-examine the girl about running away with another man and being left by him— having a relationship with somebody else, the pinpoint of me quarrel between them— might have the result of rendering unsafe the conclusion of the jury. What is the judge then to do? He cannot allow the case to continue. It is not possible that a case can be put right on appeal if the statutory formula has been followed. Appeals do not come into it.

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So the situation arises where the judge says, "I am sorry, under this legislation I cannot permit you to question this girl about the relationship when she ran away with another man before coming back to the defendant; the essence of the quarrel between them. I cannot allow you to ask that question. But I appreciate that if I cannot do that, there is the possibility of a grave injustice in this case. So this case will go no further; I withdraw it from the jury. "That will be the end. It may be that the defendant's defence was true. It may be that it was not true. If it was not true an injustice has been done and a guilty man has got away. But the judge could not permit the matter to proceed.
It is impossible to devise legislation— all this wordy stuff that is so difficult to understand— which can cope with all the possibilities. That is the reason why the Criminal Bar, as a whole, is against these provisions. That is why we perceive the possibility of injustice. I believe that the amendment proposed by the noble and learned Lord, Lord Ackner, which seeks to put the simple word "or" instead of "and" would permit the jury to investigate exactly what went on between those two people and the third person and would result in a proper verdict. It is only by the use of a simple word that a dramatic difference can be made to the possibilities of justice in this case. I support the amendment.
Lord Cope of Berkeley: My Lords, this amendment, like the last one, is not a party matter; it is a matter of conscience. It is something about which each of us must decide and I speak only for myself.
It is a difficult matter to get right, as this short debate and earlier discussion on the Bill have shown. A most ingenious and simple amendment has been moved by the noble and learned Lord, Lord Ackner. I congratulate him on the ingenuity of his drafting, if it is not lèse-majesté to say so to a distinguished lawyer.
The original proposals in the Bill have been improved as a result of amendments made. But the principle remains; that is, that the sexual history of the complainant should only be brought out in court to a veiy limited extent, as set out by the noble and learned Lord in moving the amendment. At the same time, the restrictive effects of the Bill are not as powerful as some would wish; hence the amendments tabled by the noble Lord, Lord Desai.
In relation to the amendments of the noble Lord, Lord Desai, it seems to me that the defendant's belief or otherwise in the consent of the complainant at the time of the alleged offence, will often be highly crucial. The sexual history of the complainant will be very relevant to a decision by the jury on whether or not he, assuming it is a he, believed in her consent. In that way the sexual history can be extremely relevant to the court case. I am not therefore inclined to support the amendment of the noble Lord to limit to an even greater degree the way in which it can be brought out in support of arguments about belief in consent.
But it is a difficult judgment to veer between the proposed amendment of the noble and learned Lord, and the noble Lord, Lord Desai. For myself, I am prepared to support the Government on this amendment. It comes
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back to discussion on the previous amendment; that is to say, to the agonised decision and discussions which take place when a complainant is deciding whether or not she is prepared to support her charges. Everything I said on the previous amendment is relevant here.
I want more rape cases to be decided in court by juries, and not decided by default of the woman not being prepared to pursue the case. I am satisfied that at present women are understandably deterred from so doing. As I said on the previous amendment, I do not believe that this clause— even taken with the other protective provisions in the Bill for screens and so on— will absolutely remedy this difficulty; of course it will not. However, I believe it moves in the right direction. Therefore, on balance I continue to support the Bill as it has been put forward to us by the Government in its amended form. However, as I say, I speak only for myself.
8 p.m.
Lord Williams of Mostyn: My Lords, in this group, apart from the amendments which stand in the names of the noble and learned Lord, Lord Ackner, and my noble friend Lord Desai, is Amendment No. 21 wliich stands in my name. I shall deal with that first. The amendment to Clause 42 brings the rule-making power under that clause into line with those under Clauses 20 and 36. The amendment would allow for rules to be made to govern confidential or sensitive information being withheld from parties to the proceedings.
I now turn to the more fundamental questions. I shall have to speak at a little length, for which I apologise in advance. The amendment of the noble and learned Lord, Lord Ackner, seems to be inspired by the idea that there are relevant pieces of sexual behaviour evidence that Clause 40 as currently drafted excludes, but which ought to be admitted. I do not agree with that proposition. My belief is that Clause 40 allows enough scope for all relevant evidence about a complainant's sexual behaviour to be introduced. Clause 40 provides a statutory framework for determining relevance. The questions that we consider to be appropriate are the following. First, is the evidence relevant; that is, does it fall under subsection (3) or subsection (5)? If it does, is it significant enough that refusing to admit it might render the jury's or the court's conclusion on a relevant issue in the case unsafe? That is the answer that I sought to give to the noble Viscount, Lord Bledisloe, on the previous occasion we discussed this matter. We see this significance test as a modified version of the test in Section 2 of the 1976 Act, to which the noble and learned Lord, Lord Ackner, referred earlier.
There is a difference of approach between that of the noble and learned Lord, Lord Ackner, and mine. The noble and learned Lord, Lord Ackner, considers that previous sexual behaviour can be so strong that it is relevant to the complainant's credibility or consent, despite it being outside the ambit of subsections (3) or (5). That is our point of disagreement. I have to make it plain that as a matter of government policy we have concluded that evidence of a complainant's past attitude to or experience of sexual relations is not material upon which a jury should reasonably rely to conclude that the

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complainant might indeed have consented on the occasion that is the subject of the complaint. Consensual sex does not mean consent to sex in general— it does not even mean consent to sex with a particular person— it means consent to sex with a particular individual on a particular occasion.
I do not think it would be appropriate, as my noble friend Lord Desai suggests, to require judges to warn juries that consent on one occasion does not imply consent on another. I sympathise with the sentiments behind his amendments as outlined in his speech. However, the complainant is not on trial. I do not think there ought to be a statutory requirement in this regard although, of course, judges may sometimes find it appropriate to make exactly the point that my noble friend Lord Desai suggests.
There are only three exceptions to the ban on sexual behaviour evidence in relation to consent. The first exception is where the evidence is needed to rebut specific claims made by the prosecution on behalf of the complainant. The second exception is evidence of the complainant's sexual behaviour at or about the same time as the alleged offence. The amendment that I laid at Report stage is not intended to widen the time limit substantially beyond the 24 hours limit originally suggested. The provision is intended only to catch behaviour that is practically contemporary with the alleged offence. For example, sexual behaviour running up to an alleged rape, where the complainant said she had decided not to consent to full sex at the last minute.
Anything that happened more than 24 hours before or after the alleged offence should only rarely be considered to take place,
"at or about the same time"
as the alleged offence. However, the new formulation in subsection (3)(b)(i) gives more flexibility if something happened a few minutes— or at the very most, a few hours— outside that 24 hour limit. The reverse is also true. If something occurred just within 24 hours of the offence, but the court did not really consider it as having taken place,
"at or about the same time"
as the alleged offence, it could exclude it.
It is not intended to catch evidence of behaviour three or four or five days before the alleged offence. I think particularly of the description in Committee by the noble and learned Lord the Lord Chief Justice of a situation where a complainant had sex with four different men a few days before the alleged offence. If the issue is actual consent itself to the alleged offence I believe it is right that such behaviour should not be admissible.
My noble friend Lord Desai raised questions as to the distinction between consent and belief in consent. That was raised on a more general basis. The Law Commission's views are being examined— as I said on an earlier occasion— under the umbrella of the sexual offences review currently being carried out in the Home Office. The noble Lord, Lord Goodhart, is right in saying that one is dealing with the substance of description of the offence. I agree that this is not the occasion to try to tinker with that.
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I am content to leave it to the courts to decide whether there would be grounds— specific to a particular case and the knowledge the defendant had of the complainant's habits— for finding this relevant to a defence of belief in consent. There is an important distinction which is often elided between the two issues. The fact that a complainant has consented previously does not mean that she will consent again. A woman exercises— and is entitled to exercise— her consent independently on each occasion. The defendant's accumulated knowledge and experience of the complainant may affect his belief in consent at the time of the alleged offence, even though, if he reflects on it later, he may recognise and concede that that belief was mistaken.
I turn to strikingly similar and non-coincidental behaviour. The only other circumstance where earlier sexual behaviour should be admissible in relation to consent is provided for in subsection (3)(b)(ii). That is, where the behaviour was so similar in detail to the defence's version of the event when the offence was alleged to have taken place that there is no way that the similarity between the two occasions can be reasonably explained as a coincidence. That might include something along the lines of the Romeo and Juliet scenario introduced by my noble friend Lady Mallalieu, where the circumstances in which the alleged offence took place were so unusual that the jury should know that the complainant had consented in strikingly similar situations in the past.
The term "strikingly similar" does not include evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display. Behaviour that can be admitted under subsection (3)(b)(ii) must be the sort of behaviour that is so unusual that it would be wholly unreasonable to explain it as coincidental.
For example, supposing a complainant alleged gang rape, and a co-accused in the case claimed consent. If the defence could produce specific, factual evidence that the complainant had previously engaged in consensual group sex under similar circumstances, this might be relevant to the jury's determination of whether she consented to the events that she is now claiming she did not consent to. The complainant's previous involvement in sexual activity of this nature should only be introduced where it is so unusual that it might affect the jury's view of the complainant's behaviour at the time of the events in question.
We have considered other models, as I mentioned briefly on our earlier visits to this territory. We have considered the legislation in Scotland, Canada and New South Wales. The wording of the Scottish legislation places little emphasis on relevance or probative value. Research done for the Scottish Office in 1992 concluded that the "interests of justice" gateway in that

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legislation—which allowed evidence to be introduced without a specific statutory constraint on how it could be considered relevant or its probative value—meant that sexual behaviour evidence was admitted much more often than had been intended. Some practitioners who were questioned said that the inclusion of the gateway made the legislation "a waste of time".
The New South Wales legislation provides a list of circumstances where sexual behaviour evidence can be admitted. We did not consider that an exclusive list of circumstances was appropriate. In Clause 40 we have introduced a framework setting out how sexual behaviour evidence could be considered relevant to an issue in the case.
We briefly discussed Canada on the previous occasion. The noble Lord, Lord Lester of Herne Hill, brought to your Lordships' attention the challenge in the case of Seaboyer. Following that challenge, Canada established a complete ban on the use of the complainant's sexual behaviour to suggest that she would have been "more likely to have consented to the sexual activity that forms the subject matter of the charge" or that she "is less worthy of belief' In other words, a ban on sexual behaviour evidence being used in relation to consent or credibility.
All other sexual behaviour evidence is covered by a relevance test: that it relates to an issue in the trial; it must also be of a specific instance of sexual activity; and it must have significant enough probative value that that value is not substantially outweighed by the danger of prejudicing the jury or the court if it is introduced.
Perhaps I may turn to the amendment of the noble Lord, Lord Desai, and its general approach. We decided not to require the court to weigh probative value against the risk of prejudice and to use the test in subsection (2)(b) of Clause 40—that a refusal of leave to introduce the evidence might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case. We chose deliberately to do that because, having redrawn the law on relevance in Clause 40, it seemed preferable to us to require the courts to consider only the significance of relevant evidence, and to admit it even if there was a risk that it would prejudice the court against the complainant.
Another aspect of our legislation reflecting the Canadian experience is that both cover evidence of sexual behaviour between the complainant and any other person, including the defendant. We believe it is appropriate to put all sexual behaviour on the same footing, whoever it is with. Behaviour with the defendant may sometimes be irrelevant; behaviour with someone other than the defendant may sometimes be relevant.
We believe that the only way to achieve a more consistent application of the law across the board is to create a statutory framework of relevance. I believe that that is what we have done in Clause 40. Under subsections (3) or (5) the relevance test must be passed and then Clause 40(2)(b) introduces the question of the refusal of leave in the way that I discussed earlier.
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A number of examples were mentioned. The noble and learned Lord, Lord Ackner, raised the question of a man who enters into an arrangement with a prostitute, has sex with her, refuses to pay and she cries rape. There is nothing in the Bill to stop the defendant making that clear in his defence.
I believe that if one analyses Clause 40—this is the phrase I used in answer to the noble Viscount, Lord Bledisloe, on the last occasion—one sees that it sets a statutory framework. That statutory framework deals with relevance. We believe that in the past the law has not been sufficiently balanced between respective interests. We believe—I am sorry to say this to my noble friend Lady Mallalieu—that we have got it right in Clause 40. That is why I invite your Lordships not to agree to the amendments put forward by the noble and learned Lord, Lord Ackner, which seek to alter "and" to "or", and, for distinct reasons which I hope I have ventilated sufficiently, I also invite your Lordships not to agree to the different approach put forward by the amendment of my noble friend Lord Desai.
Lord Ackner: My Lords, before my noble friend sits down, can he tell me whether it would have been permissible for a defendant in the light of the: provisions of this Bill to ask the complainant the question: "Until six months ago we were living as man and wife and had been so living for three years"? With regard to the prostitute example which I gave, how is that permissible under the clause? How can a defendant ask the complainant: "Is it not a fact—a fact which I have only recently learnt—that you have been carrying on the profession of a prostitute for the past two years?"?
8.15 p.m.
Lord Williams of Mostyn: My Lords, that was not the example that the noble and learned Lord put earlier. The example he put earlier was of the prostitute having sex with the defendant and then saying, "My fee is £100. If you do not pay I will accuse you of rape"'. I believe that is admissible under Clause 41(l)(c). As to the other point of whether the question could be put that "We have been living together for years or months and we have had a sexual relationship", that depends on the issue to which the evidence is intended to go. Is it a question of consent or is it a question of belief in consent? I believe that the statutory framework in Clause 40 enables the court to distinguish between the two. Too often the issue of consent or belief in consent are hopelessly intermingled. We have tried to point out that these are different aspects of relevance; belief in consent is one; consent is another. They are not the same and they should be approached as conceptually different.
Lord Ackner: My Lords, before my noble friend finally sits down, can he tell us what he considers is the right approach of the judge who says, "The material you want to put in, although relevant, does not qualify under subsections (3) or (5), but I accept that my refusal to allow this material may have the result of rendering unsafe a conclusion of the jury"? Is he to continue with I the trial, or what is his function? Does my noble friend

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accept that a provision on the face of the Bill in these terms cannot justify a certificate that the human rights legislation has been complied with?
Lord Williams of Mostyn: My Lords, I believe that the Bill in its present form complies with our obligations under the European Convention on Human Rights. Secondly, the judge's duty— I am putting it as bluntly as this because I have been asked to— at the end of the day is to apply the law that Parliament passes. He therefore needs to put his judicial eye and mind to the final form of legislation; he then has loyally to put that law into effect. I believe that judges recognise their duties because they take an oath to do that.
Lord Ackner: My Lords, I shall be very brief. Dealing with the last point, the noble Lord seems to have overlooked the inherent obligation of a judge to see that justice is done within his court. If he concludes that a situation has arisen which might well result in an unsafe verdict, he is entitled— and some would say obliged— to stop the trial. That is only one indication of an unfortunate piece of drafting in Clause 40. It also provides a situation which is quite unreal in insisting on contemporaneity as regards the sexual activities of the complainant.
The simplicity of the position at the moment was summed in a case of Brown in 1982:
"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. It was a question of degree in every case".
Your Lordships are invited to exchange that simplicity for the unintelligible (in some respects) complexity of Clause 40. I accordingly invite your Lordships to pass the amendment that I have proposed.
The Deputy Speaker (Baroness Turner of Camden): My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". I think the Not-Contents have it.
Amendment negatived.
Lord Desaihad given notice of his intention to move Amendment No. 17:
Page 29, line 8, after ("consent") insert ("nor of the accused's alleged belief that there was consent").
The noble Lord said: My Lords, I merely wish to thank my noble friend for the long and detailed answer that he gave. I shall not move the amendment.
[Amendment No. 17 not moved.]
[Amendments Nos. 18 and 19 not moved.]
Clause 41 [Interpretation and application of section 40]:
[Amendment No. 20 not moved.]
Clause 42 [Procedure on applications under section 40]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 21:
Page 31, line 6, after second ("to") insert (", or withheld from, ").
On Question, amendment agreed to.
Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 22:
Page 31, line 10, after ("applies") insert ("(subject to subsection (3))").
The noble Lord said: My Lords, this is a substantial group of amendments. It contains Amendments Nos. 22 and 23, 28 to 36, 39 and 44.
Amendments Nos. 22 and 23 are designed to ensure that children who are complainants of sexual offences do not qualify for protection under this clause and so do not lose the stronger anonymity protections under the Sexual Offences (Amendment) Act 1992. That means that there is no public interest defence available to editors who publish information leading to die identification of alleged victims of sexual offences at any age.
The new subsection 48 (7A)(b)(ii) provided in Amendment No. 32, and Amendment No. 44 to the Sexual Offences (Amendment) Act 1992, ensure that there is no waiver defence either for children under 16 who are allegedly victims or for witnesses of sexual offences.
This provision is to close a loophole in the current version of the Sexual Offences (Amendment) Act 1992 which allows a waiver to be granted by a child victim of a sexual offence, even without provision for parental or local authority involvement in the decision. In our discussions, which I have mentioned on a number of occasions, media representatives were confused as to whether a waiver from a child would be valid. We have no record of publishers ever trying to rely on them.
Amendments Nos. 22 and 23, therefore, ensure that the defence of publication being in the public interest is also not available for the identification of children who are witnesses to the commission of a sexual offence. That brings the protections of the pre-charge stage for child witnesses to these offences into line with child victims since the Sexual Offences (Amendment) Act 1992 does not provide a public interest defence for the latter.
The BBC and ITC regulatory codes and the PCC code all expressly provide that information leading to identification should never be published about children who are allegedly victims of, or witnesses to, sexual offences. Therefore, our amendments bring the law into line with the codes.
The next sub-series of amendments begins with Amendment No. 28. Perhaps I may deal with Amendments Nos. 28 and 29 and 32 to 35. Broadly, Amendments Nos. 32 and 33 split existing Clause 48 into two clauses, one dealing with offences and one with defences. The amendments add legislative provision for new defences based on the granting of consent to the

1223
publication of information. Amendment No. 33 splits Clause 48. A number of changes are made to Clause 48 before it is split by Amendment No. 32. They provide a new defence, that of gaining consent to publish from the person involved in the offence but not the person suspected of committing the offence. Amendment No. 32 introduces eight new subsections to Clause 48, subsections (7A) to (7H).
The split that Amendment No. 33 makes to Clause 48 places subsections (1) to (4) and subsections (8) and (9) in the clause under the rubric, "Offences under this chapter", and places subsections (5) to (7H) in one with the rubric "Defences". Amendments Nos. 28, 29, 34 and 35 are purely consequential.
I now turn to Amendment No. 36. This is one of a series of government amendments designed to address some further concerns about the way in which the new provisions restricting reporting apply. The amendment gives a list, neither exclusive nor exhaustive, of matters to which the court must have regard when deciding when something is, or is not, in the public interest. That responds in part to a desire expressed by some sections of the media, and certainly reflected in amendments tabled by the noble Lord, Lord Cope, on Report, to have a list of public interest indicators to guide their decision-making.
We thought that the Opposition amendments were too heavily slanted, as a list, in favour of the right of the press as opposed to the rights of individuals. So the new clause makes it clear that there is an interest in the open reporting of crime and of matters relating to human health and safety. It also emphasises, rightly and deliberately, the importance of the welfare of the individual. The clause also contains mention of the importance of exposing and preventing miscarriages of justice and the consideration of the views of the appropriate and protected persons. We believe, therefore, that the list is more balanced than that previously suggested, trying as it does to indicate the range of issues which publishers and the court should consider in deciding whether publication of the restricted information is justified. I repeat, it is not intended to be an exclusive list.
I shall now deal with Amendment No. 39. This amendment reflects the view of the print media that there is no case for imposing reporting restrictions on the identification of children who are alleged to have been the victims of, or witnesses to, any criminal offence other than sexual offences unless they have been identified as victims or witnesses involved in criminal proceedings. The print media argued that there was no case for pushing back the ban on identification of juvenile offenders beyond the point of arrest.
The print media argued that the imposition of such restrictions is in contravention of Article 10 of the European convention. They cited as part of their argument the case of Gleaves v. Deakin (1979). In Gleaves, the House of Lords came to the view that Article 10 was not contravened where, by reason of its nature or the circumstances in which it was published, suppression of a publication by penal sanctions was necessary in the public interest. That is our justification for introducing the measures in Clause 43.
The policy underlying the clauses is that the public interest is best served by making the interests of the child paramount over the interest in freedom of expression, and that the interests of the child are best served by mandatory privacy from public identification where it is alleged the child has committed an offence, and by a presumption towards that privacy where the child is alleged to have been the victim of, or witness to, an offence, unless those with responsibility for the child are content that the child's welfare will not be harmed by such publicity (Amendment No. 32 and related amendments) and that the only interests paramount over the interests of the child are the interests of justice, or, in the case of victims and witnesses, the wider public interest, having taken all such factors and factors, such as the need to protect public health and safety, into account (Amendment No. 36).
I believe that I have dealt with all the amendments which are extensive in this group. Essentially, we have come to these conclusions following the interventions of the noble Lord, Lord Cope, and the noble: Viscount, Lord Astor. I am happy to repeat my gratitude for the tone and approach that the noble Lord adopted. These provisions also follow lengthy discussions which I promised to have with representatives of the various media.
It is worth repeating that I listened carefully to the Article 10 questions that have been raised. It is important that we put frankly our reasons for the provisions in the clause. I repeat that those measures have been put in place for the reasons which I specified: public interest in the interests of the child; the interests of the child best served by privacy from public identification; the interests of the child best served by presumption towards privacy; and the only interests paramount over the interests of the child are the interests of justice. I have read out those features and factors in full detail and I simply headline them again as the basis for our policy approach.
I have listened to the press. I do not believe that they have persuaded me away from the conclusion that selective decisions about when to publish information are needed from the start of reporting such information; that the need to make such selective decisions should be imposed by statute; or that where such decisions are to be made at all, they should be made by parents or guardians of the child or be subject, if it is thought necessary, to confirmation by the courts. That is what the new Clause 43, as amended, will do.
It is important to bear in mind that the presumption created in Clause 43 does not automatically criminalise all publishers who deliberately or inadvertently make such identifications. Where a publisher has or is recognised by a court as having one or more of the defences, no criminal offence is committed.
The noble Lord, Lord Cope, asked about missing persons investigations and how they might be affected by the new provisions. As I said on that occasion in response to him, a police investigation of a missing person is not usually a criminal investigation in the early stages when appeals for information are made. I believe— and I am confirmed in it by experience—

1225
that the police take pains to make that distinction. That is an observation that the noble Lord had in mind. When the police have concluded that a criminal investigation is necessary, recourse to the court to get restrictions limited would be necessary only if the parents refuse permission or if it was suspected that the report could not be defended as in the public interest. I would be surprised if that were ever thought necessary, if a child's life were seriously in danger.
I hope that I have been able to cover those disparate matters to your Lordships' satisfaction. I beg to move.
8.30 p.m.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for most of the bloc of amendments which he moved, covering a number of different aspects of the restrictions on press freedom which are being imposed under the Bill.
On the question of missing persons, on occasions I have accompanied the police when missing persons have been reported and the hunt for them has started. Although obviously the first effort is directed at finding the missing person, whether a child or an adult, at the back of the minds of the police on the spot is the possibility, particularly in the case of a child, that an offence may have been committed. They would be failing in their duty if they were not alert to possible indicators that an offence may have been committed and that potentially there may even be evidence for future use. The possibility of a crime having been committed is present from more or less the first moment of the incident arising.
Of course, one of the changes to the Bill has been modification of the moment at which the restrictions start. I shall come back to that. My main interest in speaking on this group of amendments is Amendment No. 39 in my name and that of my noble friend Lord Astor. The amendment suggests that Clause 43 should not come into force until the Secretary of State provides, along with the order appointing a day for it to commence, a statement setting out, on the one hand,
"the necessity for the commencement of that section; and"
on the other hand,
"how that section complies with Article 10 of the European Convention on Human Rights"
to which the Minister referred.
I start from the proposition, which I do not think is contentious, that we should not put legal limits on the freedom of the press, except for good, proven reasons. The Minister has not tonight, or very much on previous occasions, attempted to set out the necessity for the commencement of the restrictions on Clause 43. The Government have not produced many examples to your Lordships' House about cases where the restrictions would have prevented mischief of one form or another. As I understand it, they have not produced an explanation or relevant examples to the representatives of the press when they have met them.
1226
It is therefore at best unproven that this restriction is necessary. It is the reason for paragraph (a) in Amendment No. 39: the requirement that the Secretary of State should set out
"the necessity for the commencement of that section".
We are not denying it to the Secretary of State entirely; we are just saying that in order to restrict the press the Secretary of State must set out the necessity. That is made more important by the fact that there are still some difficulties in the drafting of the clause. I believe that the Minister and his colleagues in the Home Office are still in the course of having discussions with representatives of the press. Perhaps the Bill will be further modified or improved in the course of its passage through another place.
I draw attention to the lack of certainty as to the commencement of an investigation. It will sometimes be difficult for representatives of the press and television to know when an investigation has commenced and hence when the restrictions will apply. That is one difficulty which remains in the drafting.
Amendment No. 32 helps, as the Minister set out, by providing for a waiver—I think that is the term—to be given in writing by the victims if they are aged 16 or 17 or by a parent or other responsible adult if the child is under that age. Obviously it may assist in some cases and it is a helpful amendment. However, it will not help in all that many cases because often it will be impossible, from a practical point of view, to obtain written permission in the form suggested.
We should bear in mind that we are dealing at least some of the time with circumstances where there has been a criminal event affecting a young person. That is not an easy moment at which to approach the parents for such a waiver or to expect them to make a considered judgment in a calm way about whether to sign a waiver of that type.
However, sometimes it will also affect even fairly routine coverage. There are often stories about young people who might be the victims or witnesses of offences under investigation often with photographs and so on willingly supplied, describing theft or vandalism or whatever it might be, and media coverage could be to the benefit of those who are affected. It will be difficult sometimes, with these stories, to get the necessary waiver, with the parents in a position of being faced with a lot of representatives of the media—regional and national in some cases—all wanting waivers signed so that they have a defence if the case should later come to court.
The second half of our amendment, that is subsection (b) of our Amendment No. 39, refers to the question of Article 10 of the European Convention on Human Rights. I heard what the noble Lord the Minister said. Of course I would expect him and his legal advisers to believe that this is within the convention, and he would sign a certificate to that effect, I am sure, after careful consideration of the different elements which might apply. Unfortunately at this moment we do not have the benefit of what I think the noble Lord described as our venerable in-house experts on the convention, but I understand that some lawyers advise that Clause 43 fails to comply with the convention.

1227
I shall not enter into the legal arguments—I am not qualified to do so—and this is a case where legal opinion evidently can come down on either side. That should not surprise us because in every court in the land every day half the lawyers are proved wrong when they lose their cases. So it should not surprise us that there is more than one view as far as concerns the European convention. That is why Amendment No. 39 suggests that this clause should not come into force until the Secretary of State has formally set out how the section complies with Article 10 in a statement which should accompany the order allowing it to start.
I would say again that Amendment No. 39 does not attempt to prevent Clause 43 ever coming into force, but it does attempt to make sure that it really is required. Also, I hope it will encourage the noble Lord the Minister and his colleagues in the Home Office to continue their discussions with representatives of the media to make sure that the freedom of the press is safeguarded, as well as the interests of the young persons concerned, which is what we all want to do. I attach considerable importance to Amendment No. 39, although obviously we shall not reach it until later. However, it is down to be discussed with this group.
Lord Williams of Mostyn: My Lords, I wonder if I could respond in the helpful way that the noble Lord has dealt with these matters. I think he had a specific question about police investigations, and one finds the definition of a criminal investigation in Clause 43(12)(b). Dealing particularly with his points on Amendment No. 39, it would probably be helpful if I were to reply immediately. I do not believe that this amendment is necessary because the Secretary of State would have to set out the necessity for commencement. I do not think that would be a proper way to approach it. We have already certified of course that the section is compliant with Article 10, and the Secretary of State himself, introducing this in another place, will have to give his certificate also.
Essentially, I think I can answer the noble Lord in one or two sentences. One concerns the particular nature of childhood. I have not gone into the very helpful speech made by the noble Lord, Lord Windlesham, in Committee on 8th February, because it seemed to me idle simply to repeat what he said, to the general agreement of your Lordships I think, about our international treaty obligations. So I have deliberately not gone into that at this stage. It seems to me that the over-arching answer is that Parliament passed the Children and Young Persons Act in 1933 and our basic approach has not really altered at all since then.
Lord Cope of Berkeley: My Lords, but the approach is being considerably extended by the provisions of the Bill. So far as concerns Article 10 of the convention, yes, as I said in the course of my remarks, I am aware that the noble Lord signed a certificate. The amendment suggests that the Secretary of State should set out how Clause 43 complies with Article 10. I think that in view of the fact that there is more than one legal opinion, that will not be a mere certificate. It would be a statement of how, in the view of the Government and their legal advisers, it actually complied with that clause.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 23:
Page 31, line 22, leave out ("But the restrictions imposed by subsection (2)") and insert ("The restrictions imposed by subsection (2)—

(a) do not apply where the person involved in the offence as mentioned in that subsection is a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence; and

(b) in every case").

The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to. 3
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 24:
Page 31, line 35, leave out from beginning to ("include") in line 36 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").
The noble Lord said: My Lords, in this group are also to be found Amendments Nos. 25, 27, 42 and 43. These amendments are virtually identical in form and certainly in intention. They amend Clauses 43, 44 and 45 and Schedule 2 to the Bill. The changes to Schedule 2 are alterations to the amendments made to the Children and Young Persons Act 1933 and to the Sexual Offences (Amendment) Act 1992.
The effect of all these changes is to clarify the intention behind providing a list of pieces of information about a person which may lead to their identification. Concerns have been expressed about the benefits of including a list and there has also been some confusion about its purpose. The matters referred to in the list contained in the various provisions are only prohibited from publication if they lead to the public identifying one particular person. Name, address and photograph are obvious candidates but, for example, simply naming a school will not necessarily lead to the identification of one particular pupil.
Our intention in these provisions has never been for all such pieces of information to be routinely kept from the public. The intention has always been to protect the most vulnerable members of society from unwarranted publicity, not to restrict the publication of information which should rightly be in the public domain. I beg to move.
On Question, amendment agreed to.
Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 25:
Page 33, line 39, leave out from beginning to ("include") in line 40 and insert ("The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").
The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to.
Clause 45 [Power to restrict reports about certain adult witnesses in criminal proceedings]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 26:
Page 34, line 37, leave out from ("with") to end of line 38 and insert ("being identified by members of the public as a witness in the proceedings. ").
The noble Lord said: My Lords, this amendment is designed to make it clear that reporting restrictions should only be imposed when a witness is particularly frightened or distressed about the public identifying him or her as a witness in a criminal case. If a witness is therefore simply intimidated or distressed about giving evidence in general, that in itself should not be a justification for restricting reporting. The court must be satisfied that media reporting which led to the witness being identified would in itself reduce the quality of the witness's evidence or co-operation; otherwise it should not restrict the reporting. As the media have suggested to me, this is an important safeguard to avoid reporting restrictions being imposed unnecessarily. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 27:
Page 35, line 19, leave out from beginning to ("include") in line 20 and insert ("The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6))").
On Question, amendment agreed to.
Clause 48 [Offences under this Chapter]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 28 to 33:
Page 37, line 37, leave out ("this section") and insert ("section (Offences under this Chapter)").
Page 37, line 42, leave out ("this section") and insert ("section (Offences under this Chapter)").
Page 38, line 8, leave out ("involve") and insert ("relate to either—
(i)")
Page 38, line 10, at end insert ("or
(ii) (where that offence is one in relation to which section 1 of the Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence, ").
Page 38, line 16, at end insert—
("(7A) Subsection (7B) applies where—

(a) paragraphs (a) and (b) of subsection (6) apply, and

(b) the contravention of section 43(2) relates to a person ("the protected person") who is neither—

(i) the person mentioned in subsection (7)(b)(i), nor

(ii) a person within subsection (7)(b)(ii) who is under the age of 16.

(7B) In such a case it shall be a defence, subject to subsection (7C), to prove that written consent to the inclusion of the matter in question in the publication had been given—

(a) by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or

(b) by the protected person, if that person was aged 16 or 17 at that time,

1230
and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.
(7C) The defence provided by subsection (7B) is not available if—

(a) (where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent—

(i) was given to the appropriate recipient by any other appropriate person or by the protected person, and

(ii) was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or

(b) subsection (7E) applies.

(7D) Where—

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

(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45(2),

it shall be a defence, unless subsection (7E) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
(7E) Written consent is not a defence if it is proved that any person interfered—

(a) with the peace or comfort of the person giving the consent, or

(b) (where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,

with intent to obtain the consent.
(7F) In this section "an appropriate person", in relation to the protected person, means a person who is a parent or guardian of the protected person, except that—

(a) where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, it means a person who is—

(i) a representative of that authority, or

(ii) a parent or guardian of the protected person with whom the protected person is allowed to live; and

(b) where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, it means a person who is—

(i) an officer of that authority, or

(ii) a parent or guardian of the protected person with whom the protected person is allowed to live.

(7G) However, no person by whom the offence mentioned in section 43(2) is alleged to have been committed is, by virtue of subsection (7F), an appropriate person for the purposes of this section.
(7H) In this section "the appropriate recipient", in relation to a notice under subsection (7C)(a), means—

(a) the person to whom the notice giving consent was given,

(b) (if different) the person by whom the matter in question was published, or

(c) any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;

and for this purpose "person" includes a body of persons and a partnership. ").
Divide Clause 48 into two clauses, the first (Offences under this Chapter) to consist of subsections (1) to (4) and (8) and (9) and the second (Defences) to consist of subsections (5) to (7H).
On Question, amendments agreed to.
Clause 49 [Offences committed by bodies corporate or Scottish partnerships]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 34 and 35:
Page 38, line 25, leave out ("48") and insert ("(Offences under this Chapter)").
Page 38, line 36, leave out ("48") and insert ("(Offences under this Chapter)").
On Question, amendments agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 36:
After Clause 49, insert the following new clause—
DECISIONS AS TO PUBLIC INTEREST FOR PURPOSES OF CHAPTER IV
(". —(1) Where for the purposes of any provision of this Chapter it falls to a court lo determine whether anything is (or, as the case may be, was) in the public interest, the court must have regard, in particular, to the matters referred to in subsection (2) (so far as relevant).
(2) Those matters are—

(a) the interest in each of the following—

(i) the open reporting of crime,

(ii) the open reporting of matters relating to human health or safety, and

(iii) the prevention and exposure of miscarriages of justice;

(b) the welfare of any person in relation to whom the relevant restrictions imposed by or under this Chapter apply or would apply (or, as the case may be, applied); and

(c) any views expressed—

(i) by an appropriate person on behalf of a person within paragraph (b) who is under the age of 16 ("the protected person"), or

(ii) by a person within that paragraph who has attained that age.

(3) In subsection (2) "an appropriate person", in relation to the protected person, has the meaning given by section 48(7F). ").
On Question, amendment agreed to.
Clause 60 [Regulations and orders]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 37:
Page 43, line 37, after ("order") insert ("made by the Secretary of State").
The noble Lord said: My Lords, this amendment is technical and is designed to ensure that orders made by courts under the Bill, such as referral orders, are not subject to the restrictions in Clause 60(4). Clause 60 is intended to apply only to regulations and orders made by the Secretary of State; in other words, to secondary legislation, not court orders. I beg to move.
On Question, amendment agreed to.
Clause 62 [Corresponding provisions for Northern Ireland]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 38:
Page 44, line 21, after ("II") insert ("(other than section 56)").
The noble Lord said: My Lords, with this amendment are grouped Amendments Nos. 38, 40 and 45 to 59. The essence of the Saunders judgment was that the use made by the prosecution of transcripts of evidence given to an inspector under the Companies Act constituted an infringement of the right to a fair trial by virtue of Article 6(1). Amendments were tabled at an earlier stage to amend similar provisions on the admissibility of answers given under compulsory powers in other enactments in the regulatory sector in Great Britain. The effect of those amendments, which were accepted, is that answers obtained pursuant to a procedure which includes the power to compel answers, whatever the investigative or regulatory regime, cannot be used as part of the prosecution case except for the limited purposes of proceedings for offences that may include, for example, perjury arising out of the giving of evidence. These amendments make the necessary changes to Northern Ireland legislation by identifying trie relevant statutory provision for the "sanction offence" in those UK enactments that are directly applicable to Northern Ireland. They amend the Northern Ireland equivalent to the Companies Act 1985, the Insolvency Act 1986 and the Company Directors Disqualification Act 1986.
Schedule 3 restricts the use that can be made of answers obtained under compulsory powers in legislation that regulates financial and commercial activities. Such answers can be used only in criminal trials in very restricted circumstances. Where the offence being tried is an offence of having failed or refused to answer a question, or failing to disclose a material fact, or for having given an untruthful answer, obviously the answers will need to be used in prosecution evidence. The offences in Section 94 of the Banking Act 1987 are those of having given false and misleading information in answers obtained under compulsory powers. Their omission from the original schedule was an oversight. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Lord Ampthill): My Lords, I believe that Amendments Nos. 39 to 59 have already been spoken to.
Clause 64 [Short title, commencement and extent]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 39:
Page 44, line 34, at end insert ("but any order appointing a day in respect of section 43 shall be accompanied by a statement by the Secretary of State setting out—

(a) the necessity for the commencement of that section; and

(b) how that section complies with Article 10 of the European Convention on Human Rights. ").

The noble Lord said: My Lords, I spoke to Amendment No. 39 earlier. In view of the Minister's reply I seek the opinion of the House. I beg to move.
8.54 p.m.
On Question, Whether the said amendment (No. 39) shall be agreed to?
Their Lordships divided: Contents, 54; Not-Contents, 109.

Division No. 3

CONTENTS>

Aldington, L.

Higgins, L.

Annaly, L.

Hooper, B.

Barber, L.

Jopling, L.

Blaker, L.

Kelvedon, L.

Blatch, B.

Knight of Collingtree, B.

Boardman, L.

Lamont of Lerwick, L.

Brentford, V.

Luke, L.

Bridgeman, V. [Teller.]

Mackay of Ardbrecknish, L.

Burnham, L.

Miller of Hendon, B.

Byford, B.

Monson, L.

Cadman, L.

Montgomery of Alamein, V.

Campbell of Alloway, L

Mountevans, L.

Carnegy of Lour, B.

Northesk, E.

Chesham, L.

Norton of Louth, L.

Cope of Berkeley, L.

Peyton of Yeovil, L.

Courtown, E.

Rees, L.

Dean of Harptree, L.

Renton, L.

Dixon-Smith, L.

Rowallan, L.

Eden of Winton, L.

Seccombe, B. [Teller.]

Elliott of Morpeth, L.

Stewartby, L.

Elton, L.

Stockton, E.

Ferrers, E

Swinfen, L

Fookes, B.

Taylor of Warwick, L.

Glentoran, L

Thomas of Gwydir, L.

Goschen, V.

Wakeham, L

Hayhoe, L.

Wise, L.

Henley, L.

Wynford, L.

NOT-CONTENTS

Acton, L.

Gould of Pottemewton, B.

Addington, L.

Graham of Edmonton, L.

Alli, L.

Grenfell, L.

Amos, B.

Grey, E.

Ampthill, L.

Hacking, L.

Archer of Sandwell, L.

Hampton, L.

Ashley of Stoke, L.

Hardie, L.

Bach, L.

Hardy of Wath, L.

Blackstone, B.

Harris of Greenwich, L.

Blease, L.

Harris of Haringey, L.

Borrie, L.

Haskel, L.

Bragg, L.

Hayman, B.

Brookman, L.

Hilton of Eggardon, B.

Burlison, L.

Hogg of Cumbernauld, L.

Callaghan of Cardiff, L.

Hollis of Heigham, B.

Carlisle, E.

Howie of Troon, L.

Carter, L.

Hoyle, L.

Castle of Blackburn, B.

Hughes of Woodside, L.

Chandos, V.

Hunt of Kings Heath, L. [Teller.]

Christopher, L.

Jeger, B.

Clarke of Hampstead, L.

Judd, L.

Clinton-Davis, L.

Kennet, L.

Craigavon, V.

Kintore, E.

Darcy de Knayth, B.

Kirkhill, L.

David, B.

Linklater of Butterstone, B.

Davies of Oldham, L.

Lockwood, B.

Dholakia, L.

Lofthouse of Pontefract, L.

Dixon, L.

McIntosh of Haringey, L. [Teller.]

Donoughue, L.

Dormand of Easington, L.

Mackenzie of Framwellgate, L.

Dubs, L.

Mackie of Benshie, L.

Evans of Parkside, L.

McNair, L.

Falconer of Thoroton, L.

Mallalieu, B.

Farrington of Ribbleton, B.

Mar and Kellie, E.

Geraint, L.

Molloy, L.

Gilbert, L.

Monkswell, L.

Goodhart, L.

Morris of Castle Morris, L.

Goudie, B.

Morris of Manchester, L.

1234

Murray of Epping Forest, L.

Sharp of Guildford, B.

Nicol, B.

Simon, V.

Palmer, L.

Simon of Highbury, L.

Phillips of Sudbury, L.

Smith of Gilmorehill, B.

Pitkeathley, B.

Steel of Aikwood, L.

Plant of Highfield, L.

Stone of Blackheath, L.

Ponsonby of Shulbrede, L.

Taylor of Blackburn, L.

Prys-Davies, L.

Thomas of Gresford, L.

Ramsay of Cartvale, B.

Thomas of Macclesfield, L.

Randall of St. Budeaux, L.

Thomas of Walliswood, B.

Razzall, L

Turner of Camden, B.

Renwick of Clifton, L.

Uddin, B.

Sainsbury of Turville, L.

Warner, L.

Sawyer, L.

Watson of Invergowrie, L.

Scotland of Asthal, B.

Whitty, L.

Sefton of Garston, L.

Williams of Mostyn, L.

Sewel, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
9.2 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 40 and 41:
Page 45, line 11, after ("sections") insert (" 56, ").
Page 45, line 11, at end insert—
("( ) Paragraph 3(4) of Schedule 1 extends also to Scotland. ").
On Question, amendments agreed to.
Schedule 2 [Reporting restrictions: miscellaneous
amendments]:
Lord Williams Lord Williams moved Amendments Nos. 42 to 44:
Page 51, line 40, leave out from beginning to ("include") in line 41 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").
Page 54, line 22, leave out from beginning to ("include") in line 23 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").
Page 56, line 30, at end insert—
("( ) In subsection (3) (cases where written consent not a defence), at the end insert ", or that person was under the age of 16 at the time when it was given. "").
On Question, amendments agreed to.
Schedule 3 [Restriction on use of answers etc. obtained under compulsion]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendments Nos. 45 to 58:
Page 58, line 11, at end insert ("or
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").
Page 58, line 27, at end insert ("or
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").
Page 60, line 40, at end insert ("or
(c) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "").
Page 61, line 11, at end insert ("or
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").
Page 61, line 28, at end insert ("or
(d) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "
Companies (Northern Ireland) Order 1986 (N. I. 6)
The Companies (Northern Ireland) Order 1986 is amended as follows.
In Article 427 (production of documents and evidence to inspectors conducting investigations into companies), after paragraph (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 paragraph 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) Paragraph (5A) applies to any offence other than an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "
In Article 440 (production of company documents to Department), after paragraph (8) (use of statements made under the Article) insert—
"(8A) However, in criminal proceedings in which that person is charged with an offence to which this paragraph 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) Paragraph (8A) applies to any offence other than—

(a) an offence under paragraph (6) or Article 444; or

(b) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 61, line 42, at end insert ("or section 94(1)(a) below;").
Page 61, line 47, at end insert ("or
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").
Page 62, line 10, at end insert ("or section 94(4) below;").
Page 62, line 15, at end insert ("or
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").
Page 62, line 27, after ("above") insert ("or section 94(l)(a) below;").
Page 62, line 32, at end insert ("or
(d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").
Page 63, line 12, at end insert ("or
(d) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "
Companies (Northern Ireland) Order 1989 (N. I. 18)
—(1) Article 23 of the Companies (Northern Ireland) Order 1989 (admissibility in evidence of statements) is amended as follows.

(2) That Article is renumbered as paragraph (1) of that Article.

(3) After that paragraph insert—

"(2) However, in criminal proceedings in which any such person is charged with an offence to which this paragraph 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) Paragraph (2) applies to any offence other than—

(a) an offence which is—

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

(ii) designated for the purposes of this paragraph by such rules or by regulations; or

(b) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).

(4) Regulations under paragraph (3)(a)(ii) shall after being made be laid before the Assembly. "
Insolvency (Northern Ireland) Order 1989 (N. I. 19)
—(1) Article 375 of the Insolvency (Northern Ireland) Order 1989 (admissibility in evidence of statements of affairs etc.) is amended as follows.

(2) That Article is renumbered as paragraph (1) of that Article.

(3) After that paragraph insert—

"(2) However, in criminal proceedings in which any such person is charged with an offence to which this paragraph 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) Paragraph (2) applies to any offence other than—

(a) an offence under Article 34(6), 57(6), 58(8), 81(7), 84(5), 85(3)(a), 111(7), 162(2), I72(l)(a) or (d) or (2), 174, 199(5), 324(1), 325(l)(b) or (5) or 327(1) or (3)(a) or (b);

(b) an offence which is—

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

(ii) designated for the purposes of this paragraph by such rules or by regulations; or

1237

(c) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).

(4) Regulations under paragraph (3)(b)(ii) shall after being made be laid before the Assembly. "").
Page 63, line 30, at end insert ("or
(c) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "").
Page 63, line 38, at end insert—
("Proceeds of Crime (Northern Ireland) Order 1996 (N. I. 9)
In paragraph 6 of Schedule 2 to the Proceeds of Crime (Northern Ireland) Order 1996 (admissibility of evidence), for sub-paragraph (b) substitute—
"(b) on his prosecution for some other offence where evidence relating to any such answer or information is adduced, or a question relating to it is asked, by or on behalf of that person; or". ").
On Question, amendments agreed to.
Schedule 4 [Minor and consequential amendments]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 59:
Page 67, line 16, at end insert—
("Companies (Northern Ireland) Order 1989 (N. I. 18)
In Article 3(1) of the Companies (Northern Ireland) Order 1989 (interpretation), in the definition of "regulations" after "subject" insert "(except in Article 23(3)(a)(ii))".
Insolvency (Northern Ireland) Order 1989 (N. I. 19)
In Article 2(2) of the Insolvency (Northern Ireland) Order 1989 (interpretation), in the definition of "regulations" for "Article 359(5)" substitute "Articles 359(5) and 375(3)(b)(ii)". ").
On Question, amendment agreed to.
An amendment (privilege) made; Bill passed, and sent to the Commmons.

Disability Rights Commission Bill [H.L.]
9.3 p.m.
Read a third time.
Clause 2 [General functions]:
The Minister of State, Department for Education and Employment (Baroness Blackstone)The Minister of State, Department for Education and Employment (Baroness Blackstone) moved Amendment No. 1:
Page 1, line 16, leave out from ("persons") to end of line 17 and insert—
("(ba) to take such steps as it considers appropriate with a view to encouraging good practice in the treatment of disabled persons; and").
The noble Baroness said: My Lords, in moving Amendment No. 1, I wish to speak to Amendments Nos. 3 and 6. I take account of the comments made by the noble Baroness, Lady Blatch, and other noble Lords who spoke during Committee and Report on the matter. Recognising the strength of feeling on the issue, I am content for the commission's responsibilities with
1238
regard to good practice to be expressed as a duty rather than a power. That is the intention behind Amendment No. 1.
Amendment No. 3 is consequential. The power in Clause 2(2) to encourage good practice is redundant as a result of the duty set out in Amendment No. 1. In preparing the amendments it was helpful, as the noble Baroness suggested, to draw on the suggestion made by the noble Lord, Lord Rix. I am grateful to him. Amendment No. 1 also seeks to remove the words "in all fields of activity" from the commission's duty to promote the equalisation of opportunities. Those words were originally included in the Bill to ensure that it was made clear beyond doubt that promoting equalisation of opportunities was not confined to activities covered by the Disability Discrimination Act.
However, on further consideration the Government have decided that the better legal view is that it would be safe to delete the words. This is merely a tidying up measure. I am happy to place on record that the commission's activities in respect of promoting the equalisation of opportunities and encouraging good practice go wider than those areas covered by the Disability Discrimination Act.
I hope that these amendments meet the concerns raised by the noble Baroness, Lady Blatch, and other noble Lords on the matter. I beg to move.
Lord Swinfen: My Lords, I welcome this group of amendments. I know that the noble Lord, Lord Rix, with whom I worked closely at earlier stages of the Bill, would welcome them. I am delighted that this group of amendments makes it a duty on the commission to encourage good practice in the treatment of people with disabilities rather than just establishing a hope.
However, might the wording of my noble friend's amendment be preferable as I suspect that it is slightly better English, being rather briefer?
Baroness Blatch: My Lords, I thank the noble Baroness most warmly for the letters that I and I suspect other Members have received since the last stage of the Bill. They have been helpful. It is clear that the Minister has moved a long way to meet some of the concerns expressed at that stage. I am deeply grateful to the noble Baroness.
The amendments respond positively to a convincing case put to the Minster at Committee and Report stages. However, even at this late stage and at the risk of sounding churlish—that is not my intention—I should like to recommend that the House accepts Amendments Nos. 2 and 3 rather than Amendments Nos. 1 and 6.
If my Amendment No. 2 were accepted there would be the need for a minor amendment to Schedule 1. That could be tidied up as the Bill moves to another place. The reason given for removing the words "in any field of activity" was not convincing. The Minister said that they appeared in order to make the Bill clear beyond any doubt whatever. I suspect that they have been removed because someone in the back room—probably counsel—said that it is safe to do so, but without giving any intellectual reasons.

1239
I believe that the words "in any field of activity" make clear that the provision goes wider than the Disability Discrimination Act. It gives those who must put the commission's work into practice a feeling that under the Bill they have a right to move into all fields of activity which impact on the lives and work of disabled people. Therefore, I should like a further and deeper explanation of why those words should be removed.
I am grateful to my noble friend Lord Swinfen for supporting my amendment because it provides a straightforward form of words in keeping with the crisp way in which Clause 2 is set out. It provides that:
'The Commission shall have the following duties … to work towards the elimination of discrimination against disabled persons … to promote the equalisation of opportunities"—
and, if my amendment were accepted—
"to encourage good practice regarding the treatment of disabled persons".
It is clear and straightforward. It is not couched around "to take such steps as it considers appropriate". Of course, the commission will only act when appropriate; that goes without saying and does not have to be written into statute. The phrase:
"to take such steps as it considers appropriate with a view to encouraging good practice",
is not as crisp or direct as putting the duty on the commission,
"to encourage good practice regarding the treatment of disabled persons in any field of activity".
In thanking the Minister most warmly for all the help she has given since the previous stage of the Bill, the difference between us is a little more than semantics. It is not only plain English, but a clear statement of duty. I would leave it to the commission to determine when it is appropriate to act. It is highly unlikely that it would act when not appropriate or would take action which was not with a view to encouraging good practice. I hope that the noble Baroness will come a little further along the road.
Baroness Darcy de Knayth: My Lords, I, too, warmly welcome the Minister's amendment in response to that tabled by my noble friend Lord Rix. He is sorry that he cannot be here, but I pay tribute to him and to the Minister for their diligence in pursuit of the matter.
Does not the Minister agree that the amendment tabled by the noble Baroness, Lady Blatch, is wider and firmer than her amendment? When I read that the Minister was removing the words, "in any field of activity" I wondered whether we were losing something.
Lord Addington: My Lords, this short debate addresses the question: what is the best of two good options? It seems churlish to say more than that. However, the noble Baroness has proved again that, in the elegant expression of my noble friend Lord Russell, she has become part of the country party on this. I was thinking of saying something about her being gamekeeper-turned-poacher, but I am afraid that under no circumstances can I see her sneaking across a field with a sackful of dead rabbits and a ferret.
Lord Ashley of Stoke: My Lords, I appreciate what the noble Baroness, Lady Blatch, is trying to do, but I
1240
wish to speak in support of the Minister's amendment. I hope that the noble Baroness, Lady Blatch, will not pursue her request to the House to reject Amendment No. 1.
As my noble friend Lady Blackstone explained, Amendment No. 1 is designed to overcome the controversy of using "shall" or "may" in relation to good practice. It places the encouragement of good practice firmly among the commission's duties and together with other duties. It permits the commission to carry out the task as it wishes, giving it certain flexibilities. It is an issue in respect of which it is best not to tie the hands of the commission on specific methods.
The words in the Bill which precede the amendment of my noble friend Lady Blackstone are so vital to disabled people. They are:
"to promote the equalisation of opportunities".
That is the equalisation which disabled people want. They want to be treated like everybody else. The word "equalisation" is clear, specific and crucial. All action to bring about equalisation is welcome. I believe that the amendment of the noble Baroness, Lady Blackstone, would do just that. I hope the House will support Amendment No. 1.
9.15 p.m.
Baroness Blackstone: I am very grateful for the comments that noble Lords have made in response to these amendments and I am glad that I have been able to meet at least some of the concerns addressed in previous debates. In fact, I think I have met the concerns; it is a question of arguing about the wording.
Perhaps I may respond to the noble Baroness. The amendment seeks to remove the words "in all fields of activity" from the commission's duty to promote the equalisation of opportunities. I have to repeat what I said before: these words were originally included in the Bill to ensure that it was made clear beyond doubt that promoting equalisation of opportunities was not confined to activities covered by the Disability Discrimination Act. I hope that explains why the amendment has been put in the form of words that the Government have brought forward.
Placing a rigid duty on the commission to encourage good practice, which would be the effect of the noble Baroness's amendment, could lead to a conflict with its other main duties. For example, working towards the elimination of discrimination will sometimes involve the commission in doing things other than encouraging good practice, such as supporting individuals taking cases to court or tribunal.
Where the case involves a question of principle there may not be an established body of good practice on which to rely. Moreover, even if there were to be some good practice relevant to the issue under consideration, the commission may judge that the principle should be tested so that the law is clarified for the benefit of all. The government amendment is designed therefore to allow the commission some flexibility while placing on the commission the duty to encourage good practice. In framing such a provision we need to take care not to

1241
constrain the commission too closely. We also have to guard against a provision that is so rigid that it may expose the commission to judicial review for not encouraging good practice where, in the judgment of the commission, another course of action is appropriate.
I hope that with that explanation the noble Baroness is able to accept that the Government's amendments here are very much in the spirit of what she wants to achieve and will avoid some possible disadvantage as regards her formulation.
Baroness Blatch: I certainly will not press my amendment and if I have to concede the other amendment of course I will do so. As the noble Lord, Lord Addington, said, these are two amendments both trying to achieve the same thing. There was a slight difference of emphasis between us. I should like it to be more clear cut, but I do not believe it is.
On the other point of Amendment No. 1, the noble Baroness has given very good reasons why those words should be on the face of the Bill. The noble Baroness has not given good reasons why they should be removed from the face of the Bill. The reason why they should be on the face of the Bill, if I may paraphrase what the noble Baroness said, was to make it absolutely clear beyond any doubt whatever that the commission will have a responsibility that goes wider than the Disability Discrimination Act, and yet those words are being removed. If they were there to put this beyond doubt, they have been removed to introduce a doubt. I find that very strange indeed. I will not press that, but I do leave this debate to be continued in another place. Sadly, of course, the Bill will go to another place without these words in the Bill. I suspect that the disability groups who are outside this Chamber will read this with very great interest and will seek, I suspect, informally to find out from the department why it was that those words were removed. I will not be moving my amendment.
On Question, amendment agreed to.
[Amendment No. 2 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 3:
Page 1, line 20, leave out subsection (2).
On Question, amendment agreed to.
Clause 5 [Agreements in lieu of enforcement action]:
Baroness Blatch Baroness Blatch had given notice of her intention to move Amendment No. 4:
Page 3, line 38, at beginning insert ("to suspend or").
The noble Baroness said: My Lords, in dealing with Amendment No. 4 I refer to the explanation in the very helpful letter of 19th March, although I have to say that it was an extraordinarily technical explanation and did take two or three readings before I managed to understand what it was telling me. It does, I believe, meet my concerns about a stage in the process which allows for a further opportunity to return to the investigation stage in the event that the terms of an agreement were not met. In other words, as I understand it, it gives another chance to delay (or even, we hope,
1242
prevent altogether) the need to resort to court proceedings. I am grateful to the noble Lord for that explanation and I shall not move my amendment.
[Amendment No. 4 not moved.]
Clause 8 [Codes of practice]:
Baroness Blatch Baroness Blatch moved Amendment No. 5:
Page 7, line 6, at end insert—
("(10) An order under subsection (6)(c) shall be made by statutory instrument; and no such statutory instrument shall be made until it has been laid in draft before, and approved by resolution of, each House of Parliament. "").
The noble Baroness said: My Lords, with Amendment No. 5 we are returning to that old parliamentary chestnut of affirmative or negative resolution. In responding to my amendment on Report, the noble Lord, Lord Hunt of Kings Heath, made my case for me and reinforced the argument as to the use of the affirmative rather than negative resolution procedure,
On Report, the noble Lord said:
"subsection (6)(c) allows the Secretary of State to revoke a code of practice",
so that it is not merely an amending regulation,
"by order at the request of the commission. Such orders would be subject to the negative resolution procedure. The purpose of the noble Baroness's amendment is to make these orders subject to the affirmative resolution procedure … it seems that it would be unusual for a code of practice to be revoked rather than simply being revised and reissued". —[Official Report, 11/3/99; col. 411.]
The noble Lord said that any revocation of a code of practice would be an extremely serious issue. Indeed, it would happen only on rare occasions. As I said, I am not talking about a simple amending regulation whereby extremely minor changes are made which update a code of practice. We are talking about revocation of the code itself. That may be linked to European legislation or to major shifts in legislative practice which mean that substantial changes must be made to the code.
It will be a very important code of practice. Given that it will not happen very often, it is a matter which should come before the House to be dealt with. Therefore, I ask the Minister to think again. They have confirmed that it is a serious issue and revocation will happen only rarely. But when it happens it will happen for important reasons. There will be no revocation of the code unless there is good reason for it. It seems to me that on those rare occasions the two Houses of Parliament should be given an opportunity to discuss any changes. I beg to move.
Baroness Darcy de Knayth: My Lords, I firmly support the amendment. Just because something is rare does not mean that it is unnecessary to do something about it. I have read what the noble Lord said in Committee at cols. 411 and 412 when the noble Lord, Lord Hunt, referred to a European directive making such a major difference in the law that it would mean the

1243
withdrawal of the existing code. I felt that that was very much in support of the noble Baroness's amendment. I hope that the Government will accept it.
Lord Swinfen: My Lords, I too support the amendment. As the House knows, I have spent many years fighting for the rights of disabled people. The beginning of the clause refers to,
"employers, service providers or other persons".
The codes of practice referred to in the clause are relevant not only to disabled people. They affect large chunks of the business community and other communities in this country. They may have a considerable effect on them. I think it only fair to them, as well as to disabled people, that the matter should be discussed properly in Parliament. That means that an affirmative rather than a negative resolution procedure should be used. I am sure that Parliament as a whole, with the affirmative resolution, will make certain that the rights of disabled people are looked after and balanced properly with the needs of the business community at the same time.
We must remember that if we make life too onerous for businesses, there will not be employment for anyone, let alone disabled people. There is still a tendency among many people to let disabled employees go before their able-bodied employees. Many able-bodied people still have no understanding of disability or what disabled people are capable of doing. I believe that the amendment is much more important than my noble friend indicated when she moved it.
Lord Addington: My Lords, we on these Benches have had a fairly consistent attitude towards secondary legislation and feel that it should be examined and discussed wherever possible. I feel a considerable degree of sympathy for the amendment and with this general approach and hope that the Government are able to give a reasonably positive response. This is a matter of principle that we should encourage. It must be remembered that disability legislation has a great tradition of being driven into Parliament from pressure groups and that could happen again. Generally speaking, this sort of legislation should be open to the greatest possible level of scrutiny.
Lord Hunt of Kings Heath: My Lords, as the noble Baroness, Lady Blatch, stated, we return again to this Parliamentary chestnut and to the debate on whether orders made by the Secretary of State revoking the code of practice should be subject to the affirmative rather than the negative resolution procedure. I have considered the amendment further, but I have to say that I am not persuaded to change my mind.
I refer to the points that I made both in Committee and on Report. First, the Select Committee on Delegated Powers and Deregulation has given careful consideration to all the regulation-making powers contained in the Bill and indicated that it was content. The Committee was set up with a specific function to consider all forthcoming Government legislation and to advise on whether the regulation-making powers
1244
contained in each Bill allow for sufficient parliamentary scrutiny. I believe that we must have regard to those views.
Secondly, in the majority of cases, revoking of a code of practice would be a tidying-up exercise brought about simply by the fact that the old code was so substantially changed that it would be a new, rather than a revised, code. I accept the point to which the noble; Baroness referred—the point that I made on Report—that there may be unusual circumstances surrounding the revocation of a code of practice where Parliament may have views.
However, that does not suggest that all orders revoking codes of practice should automatically be subject to the affirmative resolution procedure. The really substantive point is that the negative resolution procedure would allow debate to take place if the circumstances of revoking a particular order warranted it. On that basis, I hope that the noble Baroness, Lady Blatch, will not feel it necessary to press her amendment.
Baroness Blatch: My Lords, it is true that we greatly value the work done by the scrutiny committee. I believe that the House has a very fine record of always accepting its views, particularly the recommendations made where it believes that a power is being exceeded. However, we do not have to stop there or hide behind what a committee does not say. Therefore, I do not believe that is an argument for not accepting the amendment.
I believe this to be an important issue, in particular because of the point made by the noble Baroness, Lady Darcy de Knayth. We are now at a time where European directives make substantial differences to the way in which our own legislation works. There has to be modification.
Perhaps I may refer once more to revocation of the whole code rather than amending regulation. Revocation of the whole code is done for substantial reason. That will not be done very often but, where it is, it seems to me that, in the interests of the workings of the Disability Discrimination Act and of the disability rights commission, it is important that both Houses have an opportunity to discuss any substantial changes.
I heard what the Minister said about the House possibly having an opportunity to discuss it, but that is only if the government of the day and the usual channels decide that time would be given for that. What we are talking about—
Lord McIntosh of Haringey: My Lords, I am sorry, but that is simply not the case. If there is a Prayer against a negative resolution instrument, it will be taken, as the noble Baroness knows. She has never had one refused under this Government.
9.30 p.m.
Baroness Blatch: My Lords, that is, of course, true, but perhaps I may also point out that I do not receive regulations from the department as regularly as I receive press notices. I get all the glitzy press notices, but I do

1245
not get the regulations. Several came through during the Summer Recess and I did not receive them. I arrived back here at the end of the Summer Recess to find that by the time that I had discovered those regulations I was out of time and out of date for taking action. This is too hit and miss. Some detective work is required on the part of those of us who are not backed up in the way in which the Minister is backed up in her department. The noble Baroness, Lady Blackstone, shakes her head— and, no, I am not a stupid whatever-it-was, as the noble Lord said in an aside that was less than sotto voce. I am talking of my direct experience of the way in which I am treated by the Department for Education and Employment. As I have said, I receive some things from the department and sometimes I receive several copies of the same thing, but what I do not receive, and what I have never received, are the regulations in draft form—
Baroness Blackstone: My Lords, the Department for Education and Employment sends the noble Baroness many, many documents—far more than I ever received when I was the Opposition spokesman when the noble Baroness was the Minister. I never, ever received regulations from the department when she was the Minister. I expected my Whip to provide information on such matters. I think that the noble Baroness is being wholly unreasonable in castigating the department in this way.
Baroness Blatch: My Lords, I am talking from first-hand experience of the department. As a Minister, my office on my instructions always contacted my opposite numbers, whether I was at the Home Office, the Department of the Environment or the Department for Education, to talk about the business in the pipeline and opportunities to discuss it before it reached Parliament. There was never anything that was not shared with the Opposition when I was a Minister. I do not think that I was a Minister opposite the noble Baroness on the other side of the fence; I am talking about the way in which I operated as a Minister and about my first-hand experience at the department.
Perhaps I may give an example because it seems that the noble Baroness does not believe what I am saying. When the teachers' pay review document was received, in the course of one day I received, one at a time, eight copies of exactly the same document. Indeed, on many occasions I do not receive any copies of a document. All that I am saying is that there is a very schizophrenic system in the department. Some parts of the department operate very efficiently; others do not.
I had to telephone the department this weekend because I had not been aware of the A-level presentation other than from what I had read in the newspapers or heard on the media. That information arrived at my home at 10 o'clock on Saturday night by personal courier. That was as a result of my own request to the office of the noble Baroness. What I am saying is that—
Baroness Blackstone: My Lords, perhaps I may clarify something. I made it absolutely clear to my
1246
officials before there was any request from the noble Baroness that, as the announcement was made on a Friday and the House was not sitting, the press notice about A-levels should be sent to the noble Baroness and that we should make sure that she got it over the weekend.
Baroness Blatch: My Lords, that does not alter the fact that I telephoned the office of the noble Baroness on Thursday about the rumours and the information that was then appearing in public, in the press and on the radio and television media.
I am not happy about this. It is an important point. On Report, I was supported by Members on all sides of the House, including from the Government Benches. I beg to test the opinion of the House.
9.33 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 81.

Division No. 5

CONTENTS

Annaly, L.

Leigh, L.

Blatch, B.

McConnell, L.

Bridgeman, V.

Mackay of Ardbrecknish, L.

Burnham, L. [Teller.]

Masham of Ilton, B.

Byford, B.

Mayhew of Twysden, L.

Colwyn L

Millerof Hendon, B.

Courtown. E.

Mountevans. L

Glentoran, L.

Norton of Louth, L.

Goschen, V.

Palmer, L.

Harmar-Nicholls, L.

Rees, L.

Harmsworth, L.

Rowallan, L.

Henley, L. [Teller.]

Seccombe, B.

Higgins, L.

Stockton, E.

Hooper, B.

Swinfen, L.

Kingsland, L.

Taylor of Warwick, L.

Lamont of Lerwick, L.

Wise, L.

Wynford, L.

NOT-CONTENTS

Acton, L.

Bragg, L.

Addington, L.

Brookman, L.

Alli, L.

Brooks of Tremorfa, L.

Amos, B.

Burlison, L.

Ampthill, L.

Carlisle, E.

Archer of Sandwell, L.

Carter, L. [Teller.]

Bach, L.

Chandos, V.

Blackstone, B.

Christopher, L.

Blease, L.

Clarke of Hampstead, L.

Borrie, L.

Clinton-Davis, L.

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David, B.

Mackenzie of Framwellgate, L.

Davies of Oldham, L.

Mackie of Benshie, L.

Dixon, L..

Mallalieu, B.

Donoughue, L.

Mar and Kellie, E.

Dormand of Easington, L.

Monkswell, L.

Dubs, L.

Morris of Castle Morris, L.

Evans of Parkside, L.

Nicol, B.

Falconer of Thoroton, L.

Orme, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

Geraint, L.

Plant of Highfield, L.

Gilbert, L.

Ponsonby of Shulbrede, L.

Goudie, B.

Prys-Davies, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Grenfell, L.

Razzall, L.

Grey, E.

Renwick of Clifton, L.

Hacking, L.

Sainsbury of Turville, L.

Hardie, L.

Sawyer, L.

Hardy of Wath, L.

Scotland of Asthal, B.

Harris of Greenwich, L.

Sefton of Garston, L.

Harris of Haringey, L.

Sewel, L.

Hilton of Eggardon, B.

Simon, V.

Hogg of Cumbernauld, L.

Simon of Highbury, L.

Hollis of Heigham, B.

Smith of Gilmorehill, B.

Howie of Troon, L.

Steel of Aikwood, L.

Hoyle, L.

Stone of Blackheath, L.

Hughes of Woodside, L.

Taylor of Blackbum, L.

Hunt of Kings Heath, L.

Thomas of Gresford, L.

Judd, L.

Thomas of Macclesfield, L.

Kennet, L.

Thomas of Walliswood, B.

Kintore, E

Uddin, B.

Linklater of Butterstone, B.

Warner, L.

Lockwood, B.

Watson of Invergowrie, L.

Lofthouse of Pontefract, L.

Whitty, L.

McIntosh of Haringey, L. [Teller.]

Williams of Mostyn, L.

Young of Old Scone, B.

On Question, Motion agreed to.

Resolved in the negative, and amendment disagreed to accordingly.
9.41 p.m.
Schedule 1 [Constitution etc.]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 6:
Page 12, line 22, leave out ("and (b) and (2)") and insert ("to (ba)").
On Question, amendment agreed to.
Schedule 3 [Formal investigations and non-discrimination notices]:
Baroness Blatch Baroness Blatch moved Amendment No. 7:
Page 16, line 7, at end insert—
("(5) Where the Commission refuses to receive oral representations under sub-paragraph (4), it shall give reasons for that refusal in writing to the parties concerned. ").
The noble Baroness said: My Lords, in moving Amendment No. 7 I speak also to Amendment No. 8. Again I return to the helpful letter sent by the noble Baroness following the Report stage. Amendment No. 7presumes in favour of giving reasons,
"Where the Commission refuses to receive oral representations under sub-paragraph (4)".
In her letter the noble Baroness said that the Government were prepared to accept the idea behind my amendment. I am grateful for that.
Amendment No. 8 seeks to make provision for the disability rights commission to remove a non-discrimination notice from the public register,
"when the action required by the notice has been complied with".
Again the Government declare themselves sympathetic to this point in the letter from the noble Baroness. I am also pleased about that. However, the noble Baroness suggests that there may be practical issues which need to be addressed. We discussed those at the previous stage of the Bill. I believe it is important that a timescale be considered. There will be a number of practical consequences of such an amendment. I believe those are precisely the kind of matters that need to be dealt within secondary legislation. I believe they should be dealt
1248
with by the negative procedure as they will be relatively straightforward, technical criteria concerning how the provisions work in practice.
The noble Baroness also states in her letter that both of these amendments may have implications for future policy with regard to the powers of the Equal Opportunities Commission and the Commission for Racial Equality. I accept that. The noble Baroness states in her letter:
"I am pleased to confirm that we are currently consulting other relevant departments with a view to bringing forward government amendments in the House of Commons".
I hope that the House will forgive my cynicism about interdepartmental discussions. Time is now short. The Bill goes to the Commons tomorrow. It is a short Bill. I understand from my colleague in another place that it will be dealt with in a short timescale. Therefore I am not confident that there will be discussions with the Equal Opportunities Commission, lawyers, counsel and all the people who need to be consulted in order to obtain an appropriate form of words or for my amendments to be accepted.
I therefore wish to make what I hope is a reasonable plea to the Minister—with their majority in another place the Government are able to do absolutely anything with the amendments—that the Government put something on the face of the Bill. I suggest that both of my amendments should be accepted. The Government agree with the principle behind them; they are negotiating to discover how it can be achieved; and they have promised that there will be an amendment in another place. But if that is not achieved, if the negotiations are not complete, then an amendment cannot be tabled in another place. That means that the Bill will return to this House and there will be no opportunity for this House to take a view as to whether it should treat the disability rights commission as a separate entity from the Equal Opportunities Commission and the Commission for Racial Equality.
Each amendment stands alone. Amendment No. 7 seeks to establish that there should be a presumption in favour of giving reasons why someone should not make an oral presentation. There should also be a provision for exceptions where there are good reasons why someone should not make an oral presentation.
Amendment No. 8 deals with the removal of a non-discrimination notice from the register. A company may have genuinely complied with absolutely everything but may be unwittingly in breach of the Disability Discrimination Act. The commission has come along and persuaded it to make changes. The company makes changes—it has complied—but the non-discrimination notice is on the register. Just as criminals have records removed from registers after a certain period of time, it is important for the reputation of companies that have done the decent thing that there should be an opportunity for them to have their names removed from the register. It is a reasonable request.
If the Government do not like my amendments they can simply remove them completely. If they want to amend them they can do so in a way that meets the objectives. They can do almost anything. It would be

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hugely helpful to give this House an opportunity to have the last say on whether we need to come back and do something quite specific and free-standing for the disabled community. I beg to move.
9.45 p.m.
Baroness Darcy de Knayth: My Lords, I strongly support the amendments, particularly Amendment No. 8. In Committee, the noble Lord, Lord Hunt of Kings Heath, made some very valid points about time and timing. It struck me that this would not be a matter for primary legislation, but that the detail could be worked out later. I hope that the Minister will be able to accept the amendment or at least give a strong assurance that something will be done in another place.
Lord Swinfen: My Lords, I support both amendments. Amendment No. 7 provides that the commission shall give reasons in writing for a refusal to accept an oral submission. It is an important amendment. In paragraph 10 of the schedule we come to appeals against a non-discrimination notice. It may well be that part of the appeal will be the objection to receiving oral representations from someone that the commission considers to be unsuitable. It might be unusual, but it is possible that that could form part of the appeal. Therefore it is right that my noble friend's first amendment should be accepted. It may need to be improved in another place. I am quite happy with that.
Amendment No. 8 provides that the removal of a non-discrimination notice from the register should happen when it has been complied with. Again, it may be right and proper that the non-discrimination notice should remain on the register for a time—perhaps months or several years. But it should be removed eventually; otherwise, a young person starting a company in his or her early twenties who unwittingly makes mistakes will cause the name of the company and himself or herself to be on the register; and they can still be there 40 years later. Some unpleasant individual can raise the matter against that person when he or she is in their sixties. I strongly support both amendments.
Baroness Blackstone: My Lords, I am grateful to the noble Baroness, Lady Blatch, for tabling Amendments Nos. 7 and 8. It gives me an opportunity to confirm the Government's intentions with regard to them.
Amendment No. 7 seeks to make provision in the Bill for the commission to give reasons in writing why it has refused to receive oral representations from a person to whom it reasonably objects as being unsuitable.
My noble friend Lord Hunt argued on Report that we should leave it to the commission to exercise its judgment in a fair and balanced manner. However, in view of the concerns expressed by the noble Baroness, I am prepared to accept the principle behind the amendment and can confirm that we shall be bringing forward a government amendment at the next stage. I hope that that commitment is one that noble Lords can accept and that the noble Baroness will feel able to withdraw her amendment.
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Amendment No. 8 seeks to make provision for the commission to arrange for the removal of a non-discrimination notice from the public register when the action required by the notice has been complied with. As my noble friend Lord Hunt indicated, we are sympathetic to the idea behind the amendment, although it raises a number of practical issues which need to be addressed. The noble Baroness, Lady Blatch, referred to them. For example, as the noble Baroness said, we need to be clear about the period after which a non-discrimination notice should be removed from the register and when the period should be calculated as starting.
I am pleased to confirm the statement in my letter. We are currently considering the practical issues raised by this amendment with ministerial colleagues. We need to consult them as it has implications for future policy on the powers of the EOC and CRE, as I think the noble Baroness recognised.
I give the noble Baroness an absolute assurance that there can be no question of inadequate time being allowed for the interdepartmental discussion before the Bill is considered in another place. There will be plenty of time. While I hope that it will be possible to bring forward a government amendment at the next stage, I am sure the noble Baroness will understand that I cannot give an absolutely firm commitment at this point until that interdepartmental discussion has taken place.
Noble Lords will also be aware that we are seeking cross-government agreement for a proposal defining the scope of non-discrimination notices on the face of the Bill. I have already made clear that, given cross-government agreement, we shall bring forward an amendment providing for that too.
I hope that the noble Baroness is reassured by our intentions on both amendments and will therefore agree to withdraw them.
Baroness Blatch: My Lords, I would like to say I was but the noble Baroness made two totally conflicting statements. At one stage she said—and I wrote it down verbatim—we will bring forward an amendment. However, a little later she said that she could not guarantee it because the negotiations might not be complete in time. Perhaps she will be able to do two things. First, can she explain to the House what negotiations are taking place and what is the timescale? Secondly, if the negotiations are not complete before the Bill proceeds through another place, does it mean that there will not be an amendment to the Bill? The answers to those questions are important. Unless something goes on the face of the Bill as it leaves this House, this House will have no further opportunity to return to those important matters. We all know—it happens with all governments—that once a piece of legislation is passed it is many years before we return to it in order to amend it.
Perhaps I may also ask for clarification of another point the noble Baroness made. She appeared to make a

1251
distinction between the two amendments. As I read her letter, it says, referring to Amendments Nos. 7 and 8:
"Both these amendments may have implications for future policy on the powers of the Equal Opportunities Commission and the Commission for Racial Equality. I am pleased to confirm that we are currently consulting other relevant Departments with a view to bringing forward Government amendments in the House of Commons".
The noble Baroness referred to that, relating to the second amendment and not the first. I should like clarification that it refers to both amendments and that, irrespective of whether negotiations are completed or not, amendments will be put on the face of the Bill in another place.
Baroness Blackstone: My Lords, there is absolutely nothing conflicting in what I said. I thought I made it clear that we would be bringing forward a government amendment on the noble Baroness's amendment, Amendment No. 7. I thought I made that clear. What I said was, as concerns Amendment No. 8, that we were still consulting ministerial colleagues. Until that consultation was complete, I could not give her an absolute guarantee that the Government would be able to bring forward an amendment in another place in relation to the second issue covered by Amendment No. 8.
The reason I can make a commitment with respect to the noble Baroness's Amendment No. 7 is that there is already intergovernmental agreement about it. However, the more complicated issue covered by Amendment No. 8 has as yet not had the intergovernmental discussion necessary. I hope that that clarifies the position and that in the light of it the noble Baroness is able to withdraw her amendment.
Baroness Blatch: My Lords, with the leave of the House, I am grateful for that clarification, but it is different from the letter. The letter refers to both amendments in the same sentence. I will read the letter again. It states:
"I am pleased to confirm that we are currently consulting other relevant Departments with a view to bringing forward Government amendments in the House of Commons".
That refers to both amendments.
Baroness Blackstone: My Lords, I am sorry if I did not make myself clear. As concerns the first amendment, the consultations are complete and there is agreement. That is why I can give the absolute guarantee that we will bring forward a government amendment. On the second amendment, those consultations are not yet complete.
Baroness Blatch: My Lords, I am grateful for that, but the explanation I am getting now is not the explanation that came in the letter. All I was saying is that the letter I received was different.
I do not see the problem with the second amendment. If a company is found in breach of its obligations under the Act and a discrimination notice is put on the public register and the company quite willingly and without delay remedies that, it seems to me only fair that at some
1252
stage the name should be removed from the register; that is, given the practical difficulties about what the time-lag should be.
The noble Baroness cannot give a timescale, she cannot even guarantee now that there will be an amendment in another place. That means that companies' names will go on the register; good will will be lost and the reputation of the company will remain tainted. As long as it is on the register for having been in breach and is never removed, even though it has conformed quickly, it will be on the register with the names of people who have been laggardly about conforming. They will be on the same register as people who have conformed without delay. That is unfortunate. It would destroy a great deal of good will from the very people for whom the disability rights commission will be in business, to work with them and encourage them. I am deeply disappointed in what the noble Baroness said about Amendment No. 8. I beg leave to withdraw Amendment No. 7.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 8:
Page 17, line 6, at end insert—
("( ) The Commission shall arrange for the removal of a non-discrimination notice from the register when the action required by the notice has been complied with. ").
9.58 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contends, 33; Not-Contents, 91.
An amendment (privilege) made; Bill passed, and sent to the Commons.

Criminal Cases Review (Insanity) Bill [H.L.]
10.8 p.m.
Lord Ackner: My Lords, I beg to move that this Bill be now read a second time. I moved that the Bill be read a second time in July of last year without any hope that it would get through in time. However, we were anxious to see the reaction of the Government who have at all times proved most helpful and sympathetic.
The case of Ian Hay Gordon is the stimulus behind the Bill. He was tried on indictment in Northern Ireland in 1953 for the crime of murder. The jury returned a special verdict under the Trial of Lunatics Act 1883 that he was guilty of the act charged against him but was insane when he did that act. He was in consequence committed to an institution from which he was released in 1960. He made an application to the Criminal Cases Review Commission set up under the provisions of the Criminal Appeal Act 1995 seeking to have his case referred to the Court of Appeal of Northern Ireland with the object of having the jury's verdict reviewed. After giving consideration to its jurisdiction, the commission took the view that it did not have the power to refer such a case to the Northern Ireland Court of Appeal
1254
under Section 10 of the 1995 Act, but decided to seek the assistance of the Court of Appeal in order to get its view on the issue of jurisdiction. The Court of Appeal of Northern Ireland decided that the commission's decision was correct.
Your Lordships may recall that Section 3 of the 1995 Act abolished the power of the Secretary of State previously exercised under Section 12 of the Criminal Appeal (Northern Ireland) Act 1980 to refer cases to the Court of Appeal. The Criminal Cases Review Commission was established by Section 8. Its powers to refer matters to the Court of Appeal were set out in Section 10. Section 10(l)(a) provides that,
"Where a person has been convicted of an offence on indictment in Northern Ireland, the Commission may at any time refer the conviction to the Court of Appeal".
The commission's powers in respect of cases involving insanity are contained in Section 10(6) which states:
"Where a finding of not guilty on the ground of insanity has been recorded in Northern Ireland in the case of a person, the Commission may at any time refer the finding to the Court of Appeal; and a reference under this subsection shall be treated for all purposes as an appeal under section 12 of the 1980 Act against the finding".
Mr. Gordon submitted to the commission that he had had power to consider and refer his case since the wording of Section 10 was sufficient to cover a case in which the verdict was one of guilty but insane. The subsequent issue therefore was whether a specific verdict under the 1883 Act is a conviction of a nature which comes within the scope of Section 7 of the Act so empowering the commission to refer it to the Court of Appeal of Northern Ireland for review.
I can take the reference to the historical situation of the legislation quite shortly. Where a defendant is of unsound mind, he is regarded by the common law as unable to form the guilty mind required to found a conviction. Before 1880, when the jury found that the defendant had committed the act but was insane, it could either return a general verdict of not guilty or a special verdict that he had committed the act but was non compos mentis in which event the court would enter a verdict and judgment of acquittal. The judges had power to order him to be detained in custody as a dangerous person although it appears that this practice was not always followed.
The practice was made mandatory by the Criminal Lunatics Act 1880 under which, if a defendant were found not guilty of a felony by reason of insanity, the jury had to return a special verdict to that effect. Then the court was obliged to order the defendant to be detained during Her Majesty's pleasure. The terms of the special verdict were changed by Section 2(1) of the Trial of Lunatics Act 1883, which prescribed that it was to be:
"to the effect that the accused was guilty of the act or omission charged against him, but was insane… at the time when he did the act or made the omission".
The special verdict under the 1883 Act was no different in substance from that given under the 1880 Act. There was of course no right of appeal. The general law governing mental health was modernised in Northern Ireland by the Mental Health Act (Northern Ireland) 1961, which brought into law a range of powers

1255
for dealing with persons suffering from mental disorder. Section 56 enacted new provisions for persons found to be insane. Paragraph (2) of subsection (4) of Section 56 is close to the provisions of the 1883 Act, which was repealed in its application to Northern Ireland in the following terms:
"(2) whereupon the trial on indictment or on an information of any person charged with the commission of an offence (a) evidence is given that the person charged was insane at the time the offence was committed and (b) the jury find that although the person charged did the act or made the omission charged he was insane so as not to be responsible according to law for his actions at the time, the court shall direct a finding to be recorded to the effect that the person is not guilty of the offence charged on die grounds of insanity".
The special verdict under the 1883 Act was accordingly replaced by a "finding", a term echoed in Section 10(6) of the 1995 Act to which I referred. The current provision relating to findings of insanity is contained in Article 50 of the Mental Health (Northern Ireland) Order 1986 as amended by Article 50 of the Criminal Justice (Northern Ireland) Order 1997. It is basically similar in terms to that contained in the Mental Health Act (Northern Ireland) 1961 and provides for a finding to the effect that a person is not guilty of the offence on the ground of insanity. Thus the primary submission advanced by Sir Louis Blom-Cooper on behalf of Mr. Gordon was that Parliament, in enacting the words of Section 10(6) of the 1995 Act—"was not guilty by reason of insanity"—intended to include the phrase "guilty but insane". His thesis was that the two phrases are interchangeable in essence and intent and that the change from the first to the second and back again was no more than terminological.
However, the Court of Appeal Northern Ireland concluded that the wording of Section 10(6) of the 1995 Act is, on the face of it, clear enough; that only a finding of not guilty on the ground of insanity recorded in Northern Ireland may be referred by the commission to the Court of Appeal.
The Court of Appeal considers that there is not a sufficient reason to depart from the plain meaning of the words in Section 10(6) of the 1995 Act, that a reference can be made in respect of the finding of not guilty for cause of insanity which applies only to cases decided under the 1966 Act and not in respect of cases where the special verdict under the 1883 Act was "guilty but insane".
In my submission the omission of the verdict of "guilty but insane" is a simple error in drafting, but it has created the long-standing and tragic absurdity that Mr. Gordon cannot have his case investigated. That outcome was never intended by the Runciman Commission, the work of which established the commission. I understand that the commission has expressed a wish for the law to be changed. Mr. Gordon's is not only a "guilty but insane" case. It is generally recognised that it would be absurd for "guilty but insane" verdicts to be excluded. Their effect was the same. Only the nomenclature of the verdict changed. Not to include them and not to amend the Act would be to perpetuate in those cases the lack of
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appellate rights and to perpetuate what could be a violation in that respect of Article 6 of the European Convention on Human Rights. It would certainly be to obstruct justice in the particular case to which I returned.
I commend the Bill to the House.
Moved, That the Bill be now read a second time. —(Lord Ackner.)
10.22 p.m.
Lord Thomas of Gresford: My Lords, I am sorely tempted to say that I have heard everything that the noble and learned Lord, Lord Ackner, has said and I have nothing to add, but it would be discourteous if I did not congratulate him on his persistence in presenting this Bill and also thank those from the Home Office who have produced some very informative and helpful explanatory notes to which the noble and learned Lord has consented.
I recall in practice that cases of this nature, where there is a disability of the mind, present very considerable difficulties. This is particularly true when there is an issue as to whether the defendant committed the act which caused the death. I recall in one case for example listening to the prosecution evidence and cross-examining on it, submitting "no case to answer" unsuccessfully, and then having to switch to establish the insanity, resulting in a verdict of "not guilty but insane", which was almost impossible to appeal.
There was another case from Rhyl about 15 years ago where I recall the defendant went to the police station saying that he had gone home and discovered his girlfriend dead. He was a paranoid schizophrenic and after two days of questioning, during which he denied the offence of murder, he was questioned about his religion. A number of questions were put by new police officers who had not previously questioned him which, in the words of the Court of Appeal, enabled them to enter the defendant's closed and bizarre world and caused him to experience an episode of schizophrenic terror during which he made a statement which contained a mixture of obviously unreliable, questionably reliable and obviously reliable matter. That included his saying:
"Arbitrised humans and small molecular people were screaming at me. My body has been breaking up for the last year. Our relationship was broken. People in my head were yelling out and telling me to kill her, she heard them as well. My birthday came and a little town was telling me for their sake to kill her, millions of lives depended on it. There was trouble in the town and I turned and said I couldn't take it no longer. I pulled the knife our and killed her and lay her on the bed".
He was found guilty of manslaughter by reason of diminished responsibility but the Court of Appeal found that the jury would have had no difficulty in distinguishing between the rational and irrational parts of his confession and that his statement had been correctly introduced in evidence.
I refer to that case simply to illustrate the problems which may arise where there is a disability of mind. It is my hope that the Bill will have an effect on a number of cases so that the question of whether the defendant

1257
did what he was said to have done can be brought before the commission and justice may be effected in the end. I welcome the Bill.
10.25 p.m.
Lord Taylor of Warwick: My Lords, I too support the Bill introduced by the noble and learned Lord, Lord Ackner. I extend my gratitude to him and to the Home Office for their assistance.
There appears to be a gap in the law in this regard. As I understand it, the Bill merely enables the Criminal Cases Review Commission to refer to the Court of Appeal a verdict of guilty but insane and gives the Court of Appeal powers to hear and dispose of an appeal on such a reference.
Although the verdict of guilty but insane was abolished in the 1960s, it had the same practical effect as its replacement; namely, not guilty by reason of insanity. As I understand it, there may still be a small number of people who were the subject of such a verdict and who would like to have it reconsidered by the Court of Appeal. Indeed, we have heard of the particular case of Iain Hay Gordon from the noble and learned Lord, Lord Ackner. Because of the present situation, Mr. Gordon cannot even have his case investigated. That cannot be justice.
It seems an injustice that someone who has been found guilty but insane should have no possibility of an appeal. It is a long-standing injustice which should be rectified as soon as possible.
10.27 p.m.
Viscount Bridgeman: My Lords, from these Benches, I thank the noble and learned Lord, Lord Ackner, for piloting this Bill. In particular I congratulate him on his persistence because he has had to introduce the Bill twice. I associate myself with the thanks given to the Home Office for the extremely helpful explanatory notes. They are particularly helpful to the layman. I thank the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Taylor of Warwick for their helpful comments as noble Lords who have experience of the courts. On this side of the House, we welcome the Bill and support it.
10.28p.m.
Lord Williams of Mostyn: My Lords, I thank the noble and learned Lord, Lord Ackner, and pay willing tribute to the noble Earl, Lord Portsmouth, who, for many months, has pressed vigorously but always courteously for the law to be changed.
At Second Reading last year, I said that the Government support the purpose of the Bill. I repeat that and I accept that there is a gap in the law.
Since the last Session, my officials and I have kept in touch with the noble and learned Lord and with the noble Earl. I am grateful for the remarks of the noble Lord, Lord Thomas, about the quality of the officials' work. It is extremely clear guidance and it is pleasing to have that work recognised publicly. I am grateful to him.
10.29 p.m.
Lord Ackner: My Lords, I am grateful to the Minister for his assistance throughout our attempts to have this Bill introduced and supported. I am grateful to all those who have spoken in support of it. I commend the Bill to the House and respectfully ask that it be given a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Railways (Rateable Values) (Amendment) Order 1999
10.30 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty)The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty) rose to move, That the draft order laid before the House on 24th February be approved [11th Report from the Joint Committee].
The noble Lord said: My Lords, this order amends the rateable value of the British Railways Board in England and Wales to ensure that it does not pay rates on property which it no longer owns.
The rateable value of the board is prescribed by the Secretary of State. It was last set on 1st April 1995, at the start of the 1995 rating list, at about £11 million. That was done by the Railways (Rateable Value) Order 1994 and is known as prescribed assessment.
Since that date, as your Lordships will know, the board has sold a lot of its property including its rail freight and maintenance operations to Railtrack, among others. A recalculation mechanism contained in the 1994 order has reduced its rateable value from £11 million to about £7.5 million. This recalculation was intended to reflect the property disposals of the board but, in reality, the reduction has been too small. The Valuation Office Agency, which is responsible for rating valuations, now estimates that the board has overpaid in excess of £3 million in rates since 1995 and that a more accurate rateable value would be about £6.5 million.
It is, of course, necessary for the Government to correct this rateable value and compensate the board for the overpayment. The order would achieve this by reducing the Board's rateable value for the next year to £100, 000. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 24th February be approved [11th Report from the Joint Committee]. —(Lord Whitty.)
Baroness Thomas of Walliswood: My Lords, I must apologise to the House and to the Minister. The debate, having been extremely long-winded all through the afternoon, speeded up to such an extent that I was caught napping.
As far as I have been able to hear from the noble Lord's introduction, the order corresponds precisely to what I had partly worked out for myself and partly been informed about through the kind offices of a member of his department.

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My only slight worry is the very sharp down valuation of the BRB arrangements. The Minister told us a good deal about that. Now is not the moment to go into detail as to what the £5 million—I think it is—of diminution comprises. That will be for another day. At the moment, I am content with the order as presented.
The Earl of Courtown: My Lords, I thank the Minister for his explanation of the order which, as usual, was concise and to the point. It raises a number of issues and I quite understand if the Minister wishes to reply by letter at a later stage.
I understand that the Secretary of State prescribes the rateable value in these issues. However, could the Minister tell the House how Railtrack properties and the railway lines are evaluated for rateable purposes?
In addition, an issue was raised in another place which I do not think was covered by the Minister. I refer to shops on platforms or on property covered by the order and how they are dealt with. Are they rated by the valuation office or under the jurisdiction of the Secretary of State?
Another issue relating to Scotland has become apparent. I refer to the intention to phase out the system there. Is there the same intention about the future of the system for England and Wales?
Lord Whitty: My Lords, I believe that, by and large, the noble Earl was referring to Railtrack's rateable value rather than that of the British Railways Board, and, in so far as I understood his intervention from a sedentary position, no, it is not the same thing. Immediately on privatisation Railtrack invested in certain properties. The British Railways Board has sold on some other properties, but Railtrack is the organisation which, by and large, runs the stations and owns the land which is there for transport and railway purposes.
The British Railways Board is a residual organisation which retained certain land from the old British Rail and hence disposed over the period since privatisation of certain areas of land. As noble Lords will know, the present Government imposed a restriction on such sales. Prior to that—effectively, prior to the election—35 sites had been exchanged since the last rateable value figure and sales of 65 to 70 were so advanced that it was necessary to continue those sales. Another 40 sites have been sold on for transport purposes, in line with the present Government's policy. We have disposed of substantial parts of British Rail's residual land. However, the properties to which the noble Earl referred are Railtrack's and have been so since privatisation. Their rateability and rateable value are therefore determined with Railtrack as the operator and in line with business rates elsewhere and are not really relevant to this order. If the noble Earl would like further details, I can give them to him, but that is not relevant to this debate.
The noble Baroness alluded to the fact that British Rail had dramatically reduced its assets over the period since privatisation in line with the past policy and, to some extent, in line with present policy in terms of disposing of land for transport purposes. What remains
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of British Rail's assets will, as I understand it, in the future be subject to rateable value in the normal sense, whereas previously both nationalised and post-nationalised organisations, if I may put it that way, had a prescribed rate laid down by the Secretary of State. That proved too high over a period of four years. In order to compensate for that, we have reduced it to the notional £100, 000 this year. Next year, and for as long as British Rail continues in existence, it will be subject to the normal rateable value assessments and not to prescribed rates. As noble Lords know, the Government intend to introduce legislation to bring the British Railways Board into a strategic rail authority. Within a couple of years, that matter will therefore be resolved differently.
However, for the moment, this order compensates for overpayments in a mechanism which the Secretary of State lays down. That will not have any knock-on effect on other organisations. I commend the order to the House.

Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1999
  Advice and Assistance (Financial Conditions) (Scotland) Regulations 1999

    Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999
    10.38 p.m.
    The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel) rose to move, That the draft regulations laid before the House on 22nd February and the draft order laid before the House on 8th March be approved [11th and 12th Reports from the Joint Committee].
    The noble Lord said: My Lords, I beg to move en bloc the three draft orders standing in my name of the Order Paper. I am conscious of the lateness of the hour, so perhaps it may be convenient for the House if I first briefly describe the main terms of the three orders. I shall then be happy subsequently to answer any questions.
    The Advice and Assistance (Financial Conditions) (Scotland) Regulations provide for the uprating of financial eligibility limits in relation to advice and assistance. The regulations raise the lower weekly disposable income limit from £72 to £75 and the upper limit from £172 to £178. The regulations also revise the bands which determine the level of contribution payable by those who receive advice and assistance.
    The eligibility limit uprating represents an increase of 3.2 per cent, on the previous year's limits. This is consistent with increases proposed in the level of

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    income-related social security benefits. More importantly, the uprating ensures that people on low and modest incomes will continue to have access to advice and assistance when they need it.
    The Civil Legal Aid (Financial Conditions) (Scotland) Regulations uprate the financial eligibility limits for civil legal aid. The regulations increase the lower disposable income limit, below which civil legal aid is available without contribution by the assisted person, from £2, 625 to £2, 680 a year; and increases the upper limit, above which civil legal aid is not available, from £8, 571 to £8, 751 a year. The changes represent an increase of 2.1 per cent, on the previous year's eligibility limits. As with advice and assistance, the uprating is consistent with social security benefit increases.
    The Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999 extends the Scottish Criminal Cases Review Commission's remit to include convictions, sentences and findings in summary proceedings from 1st April 1999. I am aware that this has been a matter of discussion within legal circles in Scotland—whether there ought to be the extension to summary proceedings. The law as it stands would limit the review procedures to solemn proceedings. We thought it appropriate, through this order, to extend them to summary proceedings. The advice we have is that this would not unduly burden the legal system and believe it to be totally appropriate at this stage to match the two together.
    On that basis, I hope your Lordships' House will accept the reasoning behind the order. The present order will also enable summary cases to be referred to the High Court for determination, where there is evidence of a miscarriage of justice. That is a significant innovation in terms of our present procedures. At the moment it is basically left with the Secretary of State or what would be the First Minister. It is always preferable to have a route through the courts rather than a route through the Secretary of State or First Minister in this type of case. I hope that these are wholly acceptable provisions and I commend them to the House.
    Moved, That the draft regulations laid before the House on 22nd February and the draft order laid before the House on 8th March be approved. [11th and 12th Reports from the Joint Committee]. —(Lord Sewel.)
    The Earl of Mar and Kellie: My Lords, with regard to the two legal aid orders, the uprating of the income levels is to be welcomed. There has to remain a major concern about the range of the legal aid system. Although the definition of "disposable income" is more generous than "gross income", it remains that these uprating enfranchise only one-third of the Scottish population, if that, and leave two-thirds excluded. We are therefore left where we started, with justice difficult to access by medium earners and only available to the well-off and lowest income groups.
    I am advised by the Law Society of Scotland that it has concerns—as do I—about eligibility for legal aid and, in particular, the way that the eligibility criteria
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    affects single women with children on low incomes. The pilot modifications for the recovery of contributions over 10 months must be welcomed. But there are still difficulties for people on low incomes who need to take legal action quickly—for example, to protect themselves from violence. The Scottish Legal Aid Board still needs to take substantial contributions, reputedly up to £1, 200, making the legal process an impossible one in those speedy circumstances.
    I move on. With regard to the extension to summary proceedings of the work of the Scottish criminal cases review commission, this extension of activities can certainly be welcomed. The commencement of this commission on 1st April definitely has to be welcomed. There has been an increase in the number of cases in the Scottish jurisdiction where there is some nagging doubt about the safety of convictions. It is worth mentioning, as examples, the cases of Thomas Campbell and Joseph Steele—the so-called Glasgow two—and, indeed, the case of Andrew Smith, which was highlighted in today's Scotsman newspaper. Will the Secretary of State refer these cases and others to the commission, or are the individuals themselves required to refer themselves to the commission?
    I appreciate that there has always been a presumption of confidence in the Scottish criminal justice system, but now there are questions and these must be answered. I hope that the Scottish criminal justice system will be restored to full confidence, but only if it really deserves to be so. The order wisely extends the commission's work to cases arising in the sheriff courts. This is a sensible extension. I predict that this kind of work will be sparse, but that would be no reason not to make the extension. One miscarriage is, of course, one too many at any level.
    The Earl of Courtown: My Lords, I thank the Minister for his explanation of this order which helped me to understand it. I also thank the noble Earl, Lord Mar and Kellie, for mentioning the points which have been made by the Law Society of Scotland, with which I entirely agree. While we have no objection to the Scottish criminal cases review commission order, can the Minister tell me what additional resources will be required by the commission to handle summary cases without delaying the handling of solemn cases?
    Lord Sewel: My Lords, I thank the noble Earls who have participated in this brief but, I believe, significant debate. I shall deal with the specific points made by the noble Earl, Lord Mar and Kellie. I believe he has concerns with regard to the extension of legal aid. The orders before us today do not deal with the extension of legal aid; they deal with the matter of uprating. I recognise that there is a perfectly legitimate argument to be made as regards the extension of legal aid, but that really is a matter for another time and perhaps another place.
    As regards the specific cases the noble Earl mentioned, some specific cases are before the Secretary of State at this time. If they cannot be resolved before 1st April—I believe that as regards the specific cases the noble Earl mentioned, it is unlikely that they will be

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    resolved before 1st April—they will be transferred to the Scottish criminal cases review commission. I anticipate that it would give a degree of priority and urgency to those cases.
    As regards the matter raised by the noble Earl, Lord Courtown, of resources and solemn and summary cases, our advice is that the number of summary cases at present falling before the Secretary of State are few indeed. It is a matter of two or three a year. Therefore we do not expect that this will represent a significant drain or charge upon existing resources. We hope that they would easily be able to be dealt with within the existing provision. On that basis, I hope that noble Lords will feel able to support the orders.

Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999

  Scottish Adjacent Waters Boundaries Order 1999
  10.50 p.m.
  Lord Sewel Lord Sewel rose to move, That the draft orders laid before the House on 25th February and 8th March be approved [11th and 12th Reports from the Joint Committee].
  The noble Lord said: My Lords, I am even more conscious of the lateness of the hour. If it is convenient I shall take the two orders standing in my name together and briefly refer to them. I shall first talk to the adjacent waters boundary order before turning to the consequential modifications order. Both orders have been debated in another place. In view of our previous debates I am slightly hesitant to use the word "technical", but the orders are essentially technical in nature.
  The Scottish Adjacent Waters Boundaries Order is needed to implement the devolution settlement for Scotland in relation to certain maritime matters, most notably in relation to sea fisheries. It does so by establishing a boundary between the waters within the British fishery limits that are adjacent to Scotland and those that are adjacent to other parts of the United Kingdom. In this way it creates a Scottish zone within British fishery limits. In general terms, Scots law for sea fisheries will apply within that zone. I hope that it will be helpful if I set out the relevant provisions of the Scotland Act a little more fully to explain the significance of this Scottish zone and of the maritime boundary.
  Under Schedule 5, the regulation of sea fishing outside the Scottish zone, except in relation to Scottish fishing boats, is reserved. Section 126 provides a definition of such a Scottish zone to mean the sea within British fishery limits which is adjacent to Scotland. At
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  Section 126(2), Her Majesty is enabled by Order in Council to determine a boundary to distinguish between waters which are adjacent to Scotland and those which are adjacent to other parts of the United Kingdom. The draft order sets out such a boundary by listing the necessary co-ordinates in the schedule to the order. An illustrative map has been attached to the draft order so that your Lordships can see where the boundary will run.
  The boundary follows the normal convention for determining similar international boundaries, that is, a median line between the nearest points of land on either side using the "baselines" which have been established around the coast of the United Kingdom in accordance with international law.
  Within the Scottish zone the Scottish Parliament will have competence to make law for sea fisheries and Scottish Ministers will exercise functions in relation to the regulation of sea fisheries. In both cases, of course, the Parliament and Scottish Ministers will have to act in accordance with our international obligations, notably with EU law for fisheries and the common fisheries policy. In practice, therefore, the Scottish zone marks the sea area where the EU law on fisheries, as well as Scots law, will be enforced by Scottish Ministers and their officials and by Scottish courts.
  The boundary provided by the draft order has particular significance for sea fisheries. I wish to make it clear—though it should be self-evident—that the boundary has no significance for other matters at sea which are reserved. In particular, it has no relevance to the regulation of oil and gas exploration and production at sea since these are reserved matters.
  In addition, noble Lords will see from Section 126 of the Scotland Act that "Scotland" does extend to include the territorial sea around Scotland, and that is relevant to certain provisions of the Scotland Act. One example is Section 75 of the Act, which defines a Scottish taxpayer with regard to the number of days spent by a person in Scotland. In that respect, the boundary provided within the territorial sea will also be relevant for those purposes of the Act. Put briefly, if you have a boat and moor it outside Aberdeen harbour, you do not escape being a Scottish taxpayer.
  I now turn to the Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999. The order is made under Section 105 of the Scotland Act 1998. It makes a variety of amendments to legislation to take account of the Act.
  This order contains the amendments which are required to come into force on 6th May and 20th May in connection with the creation of the parliament and the transfer of the Lord Advocate from the United Kingdom Government to the Scottish Executive. It also contains a small number of amendments that come into force on 1st July. A second consequential modifications order will be laid in May to cover the main bulk of the amendments which will come into force on lst July. So, my Lords, we shall meet again.
  The order only makes amendments which are considered necessary or expedient as a consequence of the Scotland Act. As I said, this is essentially a technical instrument. I beg to move.
  Moved, That the draft orders laid before the House on 25th February and 8th March be approved [11th and 12th Reports from the Joint Committee]. —(Lord Sewel.)
  Lord Steel of Aikwood: My Lords, I could be mischievous and ask what happens if I moor my boat outside Berwick harbour, but I shall not be, as I do not have a boat.
  I wish to ask one question on Article 2 of the Scottish Adjacent Waters Boundaries Order. It helpfully tells us under the heading, "Interpretation", that a "line",
  "in relation to any list of co-ordinates in this Order, means a loxodromic line"
  My simple question is: what is a loxodromic line?
  Lord Sewel: My Lords, I was prepared for that question. The world is round; but when we draw a line on a map it is a straight line on a flat map. That is a loxodromic line.
  The Earl of Courtown: Well, my Lords, we learn something every night!
  My noble and learned friend Lord Mackay of Drumadoon told me that the Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999 was a purely technical order. I shall go no further than that.
  A point raised by one of my noble friends in relation to the Scottish Adjacent Waters Boundaries Order was whether it would help to resolve the ongoing difficulty of jurisdiction in the Solway. I hope the Minister can help me on that matter. If he cannot, I shall be happy to receive his reply in writing.
  Lord Sewel: My Lords, this is a significant question. The problem of the Solway boundary has befuddled and bewitched us for some time. It is quite difficult to ensure that one can prosecute successfully because of the nature of the boundary being, to put it in common terms, the mid-point of a channel which itself moves from time to time and which is submerged at high tide. In those circumstances it has been somewhat difficult to know under which jurisdictions prosecutions should take place.
  The best that I can offer the noble Earl is that, although this order does not affect the common law boundary, it is our hope and intention that we can move to a situation where the rights, particularly in regard to salmon fishing, are brought into consistency with the new boundary that we are proposing.

Social Security and Child Support (Decisions and Appeals) Regulations 1999
  Child Support (Miscellaneous Amendments) Regulations 1999

    Child Support (Miscellaneous Amendments) (No. 2) Regulations 1999
    11 p.m.
    The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis ofHeigham)The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis ofHeigham) rose to move, That the draft regulations laid before the House on 4th and 8th March be approved [12th Report from the Joint Committee].
    The noble Baroness said: My Lords, the regulations provide for the new arrangements that will be introduced from the second half of this year. The draft Miscellaneous (Amendments) (No. 2) Regulations contain some consequential amendments to the child support regulations. All these regulations are derived from the powers provided in the Social Security Act 1998.
    The Child Support Miscellaneous (Amendments) Regulations make a small number of amendments to the secondary legislation which provides the structure of the child support scheme. For the most part, they correct minor errors and clarify the intention of the legislation in cases of doubt.
    The current system of determining claims and resolving disputes in social security is too long and too complex. People have a right to expect their claims and applications to be dealt with correctly and speedily. When they wish to dispute a decision, they expect to see it resolved swiftly wherever possible or progressed rapidly to the appeal stage.
    The draft regulations provide for an improved decision-making and dispute resolution system, a simplified appeal system where five different types of tribunals are replaced with a single jurisdiction and the introduction of a modern, accountable appeals service.
    Noble Lords will recall that one of the main provisions of last year's Act was to provide that all initial benefit and child support decisions will be made by officers acting on behalf of the Secretary of State. This replaces the current system where there are a variety of different types of decision-maker.
    The current inflexible system for reviewing decisions often forces people into a frustrating and time-consuming appeals process. Clients often appeal against a decision simply because they are not aware of any other way, in practice, to get their decision checked. In future, where decisions are clearly wrong, the agencies will put them right quickly with the minimum of fuss. The same straightforward and simple rules on how and when decisions can be changed will apply across all benefits and business areas.
    Regulations 3 to 24 contain the detail of the changes to the decision-making process. Regulation 3 allows decisions to be revised and replaced with a new decision, for any reason, where a dispute or appeal is made within one month of the decision being notified. This regulation further provides that some decisions may be revised after the one-month time limit in order that we may be sure that any errors are corrected. Regulation 30 allows an appeal to lapse where someone appeals against a decision at the outset and the decision is revised in their favour. There will, however, be fresh rights to dispute and appeal the revised decision which Regulation 31 confers.
    Even where errors are identified outside the one-month time limit and the decision cannot be revised, a decision may be superseded under Regulation 6. Superseding decisions, as Regulation 7 details, will generally take effect from when the decision is made or when the application was made.
    In planning for the introduction of these new arrangements the agencies have taken the opportunity to begin to improve their notifications. The notification will invite clients to contact the agency if they are not satisfied with the decision or if they have a query. They will be given the opportunity to discuss it and to present any new relevant information. The agency will then reconsider the case and either confirm the original decision or issue a new one. In either case their right of appeal is protected.
    I will now deal with the provisions on appeals. This is covered by Regulations 25 to 59. Current delays in the handling of appeals are unacceptable. Noble Lords will be aware that appeals take, on average, seven months to be heard. Many people wait a year or more. That is unacceptable and this Government are committed to delivering significant improvements in performance.
    These regulations introduce a number of important changes. First, they simplify the confusing jumble of time limits that currently operate. At the moment where appeals are lodged out of time, we have different rules governing their acceptance or rejection and the period during which such applications may be admitted. The arrangements are a mess and we propose to replace them with a single one-month limit for each stage of the process. Various regulations—for example Regulation 3 for revisions and Regulation 31 for tribunal appeals— achieve that.
    Secondly, Regulation 36 ensures that tribunals have the necessary expertise to deal with the range of issues that may come before them. A disability benefit appeal, for example, will be heard by a three-person tribunal (lawyer, doctor, disability expert) while a retirement pension appeal raising questions of fact and law would normally be heard by a lawyer sitting alone. Such an approach will allow the appeals service to concentrate expertise on the cases that need it and speed the service it offers to all appellants. For the most part it is these regulations that will determine the composition of any particular tribunal. However, where the exercise of discretion is involved I would like to make clear that it will be the president or his judicial staff who will decide
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    how a tribunal will be composed. While on the subject of tribunal composition, I would like to clarify the position on appeals relating to incapacity for work. All such appeals will be heard by a lawyer and a doctor and we are looking again at the wording of Regulation 36 to ensure that that is made clear.
    Thirdly, 10 per cent, or more of appeals received by ITS (Independent Tribunal Service) have no prospect of success. For example, child benefit is not payable for children over the age of 19 and an appeal in those circumstances simply cannot succeed because the law is explicit. The same is true in the case of the disability living allowance mobility component in relation to a child under the age of two. It is essential that we build in arrangements to ensure that such cases (10 per cent, of the whole) do not undermine the ability of the appeals service to handle other appeals speedily and effectively. But there will be safeguards to ensure that appeals are handled properly. People will still have the opportunity to argue in front of a tribunal that their appeal is not misconceived if they wish to do so.
    Fourthly, I want to make clear to the House that the Government are expanding the role of tribunal clerks from that we envisaged when the Bill was debated. We have done this following discussions with Judge Harris, to whose helpfulness and co-operation I should like to pay tribute. At present tribunal chairmen must spend time dealing with clear-cut interlocutory matters including the disposal of certain appeals. That time would be better spent hearing appeals and helping to ensure that the delays and backlogs in the system are reduced. That will mean a speedier service for all appellants. So we have decided that clerks may handle matters involving a simple assessment of straightforward facts. Regulation 46 gives effect to that. Of course, the clerks will be properly trained to perform these duties and Judge Harris has kindly agreed to assist in both the training and guidance provided for clerks. Clerks will not strike out appeals in any other circumstances. I particularly want to draw the House's attention to these changes both because of their importance and because they represent a change from our earlier proposals.
    Lord Higgins: My Lords, perhaps it might save time if I just intervene at this moment. Will these clerks be legally qualified?
    Baroness Hollis of Heigham: My Lords, no; but they will be trained. The kind of things they will be looking at, for example, are striking out a claim where someone is seeking to challenge a pay date when that is laid down by legislation: it is a clear fact and no discretion is involved. Another example might be whether they turn up on a fortnightly basis or otherwise to get their JSA: the law is unambiguous. They will also be handling matters like renewals, deferments and so on. They will not be legally trained, but the kinds of decisions they will make will not require legal training. I hope that has addressed the noble Lord's point.
    I turn now to the Child Support Miscellaneous (Amendments) Regulations 1999. As I said earlier, these make a small number of amendments to the secondary

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    legislation, which provides the structure of the child support scheme. For the most part, they correct minor errors and clarify the intention of the legislation in cases of doubt.
    This package of regulations marks a step along the way of improving the CSA. We all know the difficulty that the CSA has is particularly marked in obtaining maintenance from self-employed non-resident parents. Regulation 6 introduces provisions which self-employed parents should find helpful, enabling them to provide the figures which they use for self-assessment of their earnings for tax purposes, for use in calculating maintenance. Only where they are unable to provide them, for example, if the business is a new one, will the agency have to continue to use the old cumbersome arrangements.
    The package also includes a regulation, Regulation 3, to defer the re-introduction of fees until April 2001. That was originally provided for in legislation. It was subsequently deferred on a couple of occasions, and until the service is of sufficient quality we do not think it is appropriate to talk about fees. Therefore we are proposing not to re-introduce fees for at least another two years.
    A further measure in Regulation 6(7) restores the policy intention in respect of the valuation of property transferred before 1993 in lieu of child maintenance, where a decision by a child support commissioner has resulted in that value being less than was originally intended.
    These are the most significant of the changes contained in the package. Your Lordships will be relieved to hear that I do not intend to go over the regulations one by one since they are very extensive; but I will do my best to answer any questions that may arise before us today. I hope that your Lordships will accept the regulations. I beg to move.
    Moved, That the draft regulations laid before the House on 4th and 8th March be approved. [12th Report from the Joint Committee]. —(Baroness Hollis of Heigham.)
    Lord Higgins: My Lords, the House will be grateful to the noble Baroness for her explanations of these three orders. I believe that it is convenient to deal with the orders en bloc, although the first one deals with very important issues relating to appeals whereas the second and third are rather more detailed and relate to the Child Support Agency.
    In the light of the debates last year on the Social Security Bill I have some serious concerns about these orders. We complained at that time that if the implementation of the Act took the form of statutory instruments, we would not be able to amend them. In relation to a number of points arising on the orders had it been possible to amend them I would have wished to do so.
    Before turning to the points of substance, I thank the noble Baroness for writing to me explaining some of the points dealt with in the orders. Obviously, the orders are very complex and require detailed examination. In that context I make one particular point.
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    In the course of considering these matters I came across the various documents produced for the Joint Committee on Statutory Instruments. Those appeared to me to be a vast improvement on the Explanatory Notes on the back of the orders. Given that a number of these issues will be of great concern to outside bodies like the Child Support Agency, Citizens Advice Bureaux and so on, perhaps the noble Baroness and her department—I do not ask that it be dealt with this evening—will consider whether the documents produced for the Joint Committee should be more widely distributed to general advantage. To a large extent, these complex matters must be explained by the various bodies to the people whom they seriously affect. The more information that can be provided, and the simpler the explanation, the better. It seems to me that the documents to which I have referred achieve that end.
    Next, perhaps the Government Chief Whip could say what determines the order in which these measures come before the House as opposed to the other place. Some have come ahead of these and some after. I understand that one of the orders is to go before the other place tomorrow. The other place will not have the benefit that we have had of hearing the debates in the other place. Perhaps that is also a point that can be considered.
    I turn to the substance of the matter. Some of these issues have been raised with a number of outside bodies which have expressed very considerable concern about the way in which the orders operate. The Explanatory Notes provided to the Joint Committee point out that the orders will not be referred to the Social Security Advisory Committee. Given their importance, I was not clear precisely why that was so. Apparently, it was based on the fact that there was a short time lag between the Act on the one hand and the making of the orders on the other. But I am not sure why we have not had the advantage of the Social Security Advisory Committee's comments on these orders.
    Essentially, what we have here is a simplification in the sense that a number of different jurisdictions are to be amalgamated. But one feels that the simplification is not by and large to the advantage of the people affected by these orders. The tendency has been to take the lowest common denominator in terms of time limits and so on. In addition, the situation now is one in which the Secretary of State is said to take the decisions. Perhaps the Minister can say who in practice will make the decisions. I doubt whether Mr. Darling will see each of them individually. It appears that provision is made whereby, if the officials concerned discover that they have made a mistake, they can take immediate or very rapid action to put it right.
    Having said that, there are a number of points about which the outside bodies make complaint, in particular the composition of tribunals. As I understand it, the fact is that a number of them selected by the president will in the light of these orders be single-member tribunals. Can the Minister confirm that if they are single member tribunals he or she will be a lawyer? That would be helpful to know.

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    I have received two separate sets of representations regarding the situation which may arise if there is a single member tribunal. In a specific case there was no presenting officer. Apparently it is now common for presenting officers not to turn up. The appellant was not represented, as is commonly the case. During the hearing the appellant had a psychotic fit. If a single member tribunal is sitting with no presenting officer, considerable problems may arise if some appellants are unhappy or indeed disturbed by the situation. It is a genuine point which needs to be considered.
    Having thought that that was a one-off example, somewhat to my surprise a similar case was brought to my attention. Apparently, not satisfied with the decision, the appellant tried to jump out of the window and had to be restrained. I raise the point because I was surprised to hear of the first case and even more surprised to hear of the second; and as a result of the Bill and these orders we shall have single member tribunals.
    In addition, I have had representations pointing out that the chairman, sitting alone, has to take a note, keep the questioning going, observe the appellant, and does not have the advantage of the experience of colleagues if a larger number of individuals were to be involved in the tribunal. I hope that these points can be clarified.
    The noble Baroness will know that there is concern regarding the reduced time limits. It is difficult not to receive the impression that the time limits to lodge an appeal are being reduced on the ground that it will reduce the period before the appeal can be heard. As the noble Baroness pointed out, on average appeals take something like seven months, and perhaps significantly longer, to be heard. A month seems a somewhat short period when people may have to assimilate the decision against which they wish to appeal. Two weeks also seems extraordinarily brief. People may be on holiday. Mail may not be received as swiftly as it might, and so on. Those time limits seem very tight indeed.
    The third cause for concern is the wide powers to strike out a specific application. I was not greatly reassured by the Minister's response to my intervention. The striking out provisions may be made by an individual who is not legally qualified. If we were able to amend the order we would wish to examine that provision in detail and perhaps vote upon it.
    As regards the time limit to appeal to the commissioners—it can only be on a point of law and is effectively to a body the equivalent of the High Court— it is a shorter period than would be the case if there were an appeal to the High Court. The time limit for appeals to commissioners on a point of law should be the same as that which applies for appeals to the High Court.
    All those matters give considerable cause for concern, as does the fact that a legally qualified panel member can reinstate an appeal. However, I understand from the Minister that all tribunals will have a legally qualified member who can reinstate an appeal if appropriate.
    I turn rapidly to the second and third orders. I am puzzled that we should suddenly have new child support regulations when, as I understand it, the Government are making progress with their proposals for changing the law with regard to the agency and expect to produce a
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    White Paper fairly soon. I have only one or two relatively minor points on the orders. First, there are provisions in the orders for people who happen to be serving in the reserve forces. That seems an extraordinary sledgehammer to crack a. nut. 1 am not in the least clear how many members of the reserve forces are likely to be engaged with the Child Support Agency—
    Baroness Hollis of Heigham: Too many!
    Lord Higgins: Too many perhaps, my Lords, but I wish to ask the noble Baroness how many. We are legislating here for probably a small number of people. There are other problems, particularly with regard to disclosure of information. As the noble Baroness knows, I am concerned about the confidentiality of information within government, particularly with regard to information held by the Inland Revenue and so on. There are provisions in the orders for the transfer of information from one party to another which has been obtained from a third party. For example, if in a specific case the CSA has information which it has obtained from a third party—perhaps the Inland Revenue—it can then transfer that information, which may well be private and confidential, to the other person involved in the child support case, whether the parent with care or whoever it may be. That seems to be a sudden relaxation of the rule which previously existed.
    Those are most of the points which one might appropriately raise at this stage. We look forward to hearing what the noble Baroness says. Having said that, it is unfortunate that on some of these important points, which are of concern both to the individuals who are affected by the orders and also to the various organisations outside which seek to help them in relation to this legislation, we do not have a better chance to amend the measures. We can either accept the orders or reject them.
    Lord Addington: My Lords, on these Benches we support the principle of making appeals work more smoothly and more speedily. However, we have some misgivings about the idea of efficiency as very often "efficiency" means in Treasury-speak "cheap". The Treasury's shadow is always cast over regulations. Whenever we consider a measure which mentions efficiency we should bear that point in mind.
    We have some misgivings about the reduction in the number of people on tribunals, not because someone has had a fit, as the noble Lord, Lord Higgins, suggested. The idea that there is a difficulty in someone having a psychotic fit is an understatement of which we should all be proud. Such a reduction may lead to there being a lack of expertise on a tribunal. For instance, in a case that involved allegations of domestic violence, it might be appropriate to have at least two members on the tribunal, one of each gender.
    We are concerned about the time limits that are applied to the lodging of material for appeals. We are particularly concerned that the clock should not start

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    running until the appellant, or potential appellant, knows that it is running. That would be a step in the right direction.
    We are also concerned about the wholly exceptional circumstances in which the detail might be extended. I believe that those few noble Lords present—I believe we are just quorate—would benefit from having a better idea of what the wholly exceptional circumstances might be. The Child Support (Miscellaneous Amendments) Regulations give effect to some provisions in the context of the CSA but do not call for separate comment. The other CSA regulations allow for the use of the income tax data of the self-employed who, while enjoying apparently considerable means, nevertheless appear to be stating that they are incapable of supporting their children. The idea of allowing the argument for civil liberties to stand in the way of someone being required to give full support to his children is one that my colleagues and I would find totally inappropriate. Having civil liberties does not give you the right to starve your own children.
    We welcome the further postponement of the levying of fees by the CSA as it is far from clear that it has yet achieved a level of service that would justify the fees. It has been a consistent line from these Benches that the agency is not to blame; it is the complexity of the legislation. It is to be hoped that the efficiency I mentioned before will allow the agency to do its job.
    Baroness Hollis of Heigham: My Lords, this has been, to use a word much favoured by the Civil Service, although I am not sure it really exists, a "timeous" debate. By that I mean not a fearful debate but one that is expeditious and on time. I congratulate your Lordships on helping us to extend the English language.
    I shall do my best to answer the points that were raised. The noble Lord, Lord Higgins, referred to the opaqueness of the explanatory note compared with that produced by the Joint Committee. I have two responses to that point. First, any individual will be able to ask the agency for a full explanation of its decision. Any individual affected will have rights that currently do not exist. I am happy to follow up the noble Lord's more general point and see whether that is a helpful way of proceeding. I entirely accept that these are technical matters and that one would not expect people who seek to represent themselves fully to understand their import. I am happy to follow that point through.
    The noble Lord's second point concerned the relationship of the regulations and the role of the Social Security Advisory Committee. The regulations have not been referred because regulations made within six months of the relevant commencement order do not need to be referred to the Social Security Advisory Committee. However, we will be writing to the Social Security Advisory Committee about the regulations and their effects.
    The noble Lord asked about the appearance of presenting officers at tribunals. This is an important issue. The president is discussing with the Benefits
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    Agency when presenting officers will be present at appeals. The noble Lord was right to draw our attention to that point.
    The noble Lords, Lord Higgins and Lord Addington, asked about the composition of tribunals—single member tribunals, and so on. I am happy to confirm that the single member of a tribunal will be a qualified lawyer. The case raised by the noble Lord, Lord Higgins, seemed to be a mental health case, which would involve a two-member tribunal. We will be discussing with Judge Harris the question of security, in so far as that was presented, and I am happy to say again that where there is a single member tribunal, as in other tribunals, a clerk will be present to handle the paperwork and administration. There will be other people, so to speak, in the room.
    It is worth reminding ourselves that 50 per cent, of all tribunals are expected to have two members, 25 per cent, to have three members and 25 per cent, to have one member. Though this matter will be laid down in regulations, it will be open to Judge Harris to come back to us if he feels that any of these composition balances are inappropriate.
    The next point raised by the noble Lord, Lord Higgins, which was a concern shared by the noble Lord, Lord Addington, was the general point about time limits. Two sets of time limits apply: the first concerns the appeal to the tribunal from the decision of the agency; the second is the appeal from the tribunal to the commissioners. The regulations propose two different sets of arrangements for each of those.
    First, there is a limit of 14 days in which to get a full explanation for the decision from the agency. There is then a one month period for that person to be involved in discussion, dispute or negotiation with the agency. There is then a further one month following that for the appeal to be registered. Therefore, in practice, that person has a minimum of two months, almost two-and-a-half months, for that appeal to be made from the original decision of the agency through to the tribunal.
    The time limits are extended further for an appeal from the tribunal to the commission. In reality, there is a three-month time limit in relation to such an appeal. There is one month in which to request a full statement; one month from the issue of the full statement in which to apply for leave to appeal; and there is one month after that for the appeal to be lodged. Therefore, effectively, there is a time limit of three months for the appellant to go from the tribunal to the commissioners.
    In addition there is an absolute time limit of 12 months which applies in cases of somebody facing illness—and that may be what the noble Lord, Lord Addington had in mind—bereavement, absence abroad, postal strikes and other exceptional circumstances to be determined by the commissioners. There can be an absolute limit of up to 12 months.
    Those arrangements are perfectly decent and proper. I hope that they will ensure that we deal with appeals as expeditiously as possible. That is why I believe your Lordships accept the point about striking out misconceived appeals. A time limit of seven months in

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    which to go to the tribunal and up to a year in which to go on to the commissioners is far too long. Throughout that time, a person's benefit status is uncertain and it is right that we should speed up that process as far as possible.
    Lord Higgins: My Lords, it is extremely helpful to hear that explanation. However, is it not the case, under the current regulations, that if a claimant does not apply within 14 days for a request for an oral hearing, that may be struck out, as I understand it, by a clerk with no legal training?
    Baroness Hollis of Heigham: My Lords, as I understand it, a person may request either an oral or a paper hearing. He certainly needs to give due notice of the fact that he wishes to appeal. He has 14 days in which to ask for an explanation of the decision and one month in which to go into dispute. I take it that the noble Lord is talking about appeals to the tribunal rather than to the commissioners?
    Lord Higgins: My Lords, my understanding is that if a claimant does not reply within 14 days in relation to whether or not he wants an oral hearing, it will be struck out and that is it.
    Baroness Hollis of Heigham: My Lords, an appellant has the right to receive a full decision from the agency, which takes 14 days. He has a month in which to go into dispute and a month in which to appeal. If he does not reply to the request as to whether he wishes an oral hearing, there would normally be a paper hearing. Perhaps we should follow up that matter through correspondence because it may be that there is a misunderstanding.
    The other issues raised by both noble Lords were about the proposals for the Child Support Agency. We are expecting to issue a White Paper fairly soon. If parliamentary time permits, we hope to see legislation in due course, but not in this parliamentary Session. However, it will take a couple of years, starting from scratch now, to get the IT system in place on which any reform of the Child Support Agency will depend. Without such an accurate, reliable and robust IT system, it will simply implode on us.
    Therefore, because we are several years away from seeing the improvements which we all wish to see, we need to make interim improvements. Part of that is to ensure that where people are self-employed, the basis of the information which is submitted to the Inland Revenue for tax purposes, is the same set of accounts as is produced for the agency. I believe that that has been welcomed.
    The noble Lord asked me a question which I certainly cannot answer, and I do not think that anybody in the Chamber tonight could either. I do not know how many people in the reserve forces are affected by this regulation.
    I have noticed in the caseload of letters received that there is sometimes what appears to be a disproportionate problem of people in the Armed Forces. This is partly
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    because they feel aggrieved that, as members of a disciplined force, they are obviously vulnerable if payments are not made regularly. There is often a dispute as to the appropriate payment. We are determined to ensure that all people, including those in the reserve forces and the Armed Forces, contribute as they should. However, I will write to the noble Lord on the particular point concerning the Armed Forces.
    Given the lateness of the hour, I hope that I have answered the questions raised. However, if there is any point which either noble Lord would wish, upon reflection, to follow up in correspondence—these are typically complex regulations—we shall obviously do our best to answer questions and to be helpful. I commend the regulations to the House.

Social Security (New Deal Pilot) Amendment Regulations 1999
11.35 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham rose to move, That the draft regulations laid before the House on 22nd February be approved [11th Report from the Joint Committee].
The noble Baroness said: My Lords, these regulations support the New Deal pilot schemes introduced at the end of November to help people aged over 25, who have been unemployed for at least 12 or 18 months, back into work. Building on the New Deal for people aged 25 and over, introduced in June, the purpose of the pilots is to find new and effective ways of helping unemployed people in this age group back into work. The regulations we are debating today enable the pilot providers to try out additional ways of encouraging and supporting people in moving back into work.
We propose that in 10 pilots, those unemployed for 12 months or more are included. In the other 18 pilots, those unemployed 18 months or more are being targeted. We wish to look at this to see what is the most effective point of intervention.
Such pilots will include a gateway period of up to 13 weeks, and exceptionally up to 17 weeks, to offer extra intensive help to assist people in their job search, based on the lessons learnt from the 18 to 24 New Deal. A period of intensive activity, which will usually last 13 weeks, will tackle barriers to work and help job-related training or assistance into self-employment.
In consulting widely on the content of the pilot schemes, partnership and private sector providers expressed a desire for additional flexibilities. That is why we seek to build on the regulations we made last November.
Two consistent requests which emerged from those working with "New Deal people" and which have emerged in consultation were the facility to help people who wish to start their own businesses and wider scope to use top-up payments to assist participants into work. The proposed regulations will enable us to respond positively to both such requests.

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Perhaps I may briefly skim through what is a limited number of regulations. Regulation 1 sets out the coming into force date of the amendment regulations and their duration. Regulation 2(3) to (5) introduces further disregards in the treatment of income and capital to allow top-up payments funded from sources other than those by ES, such as the European Social Fund, to be ignored in the calculation of JSA. Such new disregards will allow partnerships, who wish to extend the period of intensive activity for some people, to continue to pay top-up grants beyond 13 weeks.
Regulation 2(4) contains a technical amendment to the New Deal Pilot Regulations 1998 which corrects a minor drafting error. This amendment will ensure that payments made to participants by the Employment Service in respect of childcare costs are disregarded as intended.
Regulation 2(6), which is substantive, extends the rules for self-employment that already exist in the New Deal for young people, to participants—that is, the over 25s—in these pilots. Where agreed by the participant and the New Deal adviser, the participant will be able to trade as a self-employed person. However, as that person will remain on JSA, special arrangements will apply.
Perhaps I may describe them briefly. The gross receipts and expenses relating to their business will be handled through a special account which will be administered by the New Deal provider. This capital may be held separately from the special account if it comprises additional grants from organisations such as the Prince's Trust.
This "test trading" may continue for a period of up to six months or until participants have accrued £2, 000 in their special account after the payment of expenses. The agreements made with the pilot providers will ensure that the proceeds of special accounts—the trading funds—will be payable immediately to people who leave JSA or IS to go into work. If people remain on JSA or IS, the proceeds of the account will be payable 13 weeks after they cease test trading (or immediately if they leave JSA or IS before the end of the 13-week period). If people move off JSA and claim an in-work benefit, the funds in the special account will be treated as capital. These measures are designed to provide people with an extra incentive to leave JSA and go into work.
The focus is firmly on moving people from welfare into work. We need this framework and we are giving those concerned that £2, 000 limit which we think mimics realistic self-employment conditions.
Participants will be supported throughout the test trading period by a New Deal adviser. As the enterprise develops, the adviser will be on hand to discuss the viability of the business and, where the business is showing signs of success, to discuss the point at which it is sensible for the participant to leave benefit, possibly before the expiry of the normal JSA period. If, after 26 weeks, a participant has still not achieved a £2, 000 profit the participant will need to discuss with the adviser his or her future chances of success. The limit
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also ensures that people do not build up large profits while receiving benefits designed for those unable to sustain themselves from employment. That is why we have provided the £2, 000 limit. We want the New Deal to offer the maximum choice possible to people. The self-employment route, which these regulations introduce, adds to this choice.
In asking for briefing, I found a number of heart-warming examples of the success of self-employment for 18 to 24 year-olds. Some people had set up, for example, a removals business or a double-glazing repairs business. That immediate self-employment would not have been open to them in terms of employment capacity. We are seeking to expand the same opportunities for those over 25 for whom this would be even more appropriate, given that they are already more likely to have appropriate skills under their belts, but who, because of what happened to a previous employer, may not now have the opportunity of traditional, employed work. For many, we think that this will be a more promising route than working for an employer. With the introduction of the regulations, people will be able to try out self-employment with the safety net of continuing with JSA.
I hope that your Lordships' House will welcome these regulations which amend, and give added flexibility to, the regulations laid before the House last November. They will offer those 25 and over the same opportunities. We do not expect it to help many— perhaps 5 per cent.; we do not know—but we think that the notion of a trading account and the ability to receive advice from a New Deal adviser, together with the ability to remain on benefit while undertaking this, will produce not only an appropriate safety net, but also an appropriate springboard. I commend the regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 22nd February be approved [11th Report from the Joint Committee]. —(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, as was the case with the previous regulations, I found the note prepared for the Joint Committee extremely helpful. As a result, I have very few points to make. I am grateful to the Minister for responding earlier to my points about those documents. I was slightly surprised that they did not appear to be in the Printed Paper Office, as I would have expected.
This is an optimistic and ambitious project, involving stimulating people to set up their own business, which is clearly a much more risky operation than simply finding a job. I understand why the Minister said that it may not affect many people. If I may express a personal view, the idea of test trading has something to commend it. However, what, roughly, does the Minister expect the cost to be per job, given that the risks involved are considerable? If the Minister does not have that figure, perhaps she can tell me the likely total expenditure on the operation.
Lord Addington: My Lords, I too have few points to make on these regulations. One concerns the incapacity pilot regulations. We welcome the

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recognition that there is an intermediate state between people who are totally incapable of working and those who are able to work. We thank the Government for that.
However, we feel that the IS limit on earnings which allows earnings without loss of benefit is far too low. The limit has not been updated since 1988; if it had been, it would be nearly £28. I hope that the Minister will bear that in mind for the future.
The Government said that they are determined to help people avoid the poverty trap. However, it would appear that the person who earns £15 while on incapacity benefit keeps it; but if that person earns £16 a week, they keep none of it. Surely that is an error in the nature of the regulations. I hope the Minister will be able to assist with an explanation.
Baroness Hollis of Heigham: My Lords, again I shall do my best to reply to the points raised. First, we are talking about the New Deal pilots for those over 25, not the IB regulations. Perhaps I have misunderstood the point of the noble Lord, Lord Addington.
Lord Addington: My Lords, I shall make a small admission. I am speaking on behalf of my noble friend Lord Russell. I may well have got that point wrong, and if so I shall withdraw it.
Baroness Hollis of Heigham: My Lords, it is an easy mistake to make at this time of the night when there are so many regulations. But the noble Lord's points were pertinent to the set of regulations rather than to specific ones.
The noble Lord, Lord Higgins, made the point—as we all accept—that self-employment is risky. As I say, some of the examples coming from young people—one became a tree surgeon—are very impressive. But my statistics indicate that 2 per cent, of the young people on the New Deal have gone into self-employment. I was asked what we might expect to see in similar circumstances. It may be double that, given the extra human capital of skills that older people, by definition, would employ. But the noble Lord is right; it is the niche market. However, for those for whom it is appropriate, it can be extremely rewarding.
We therefore do not have workings as costs per job as different people will be working for different periods. They will come off benefit earlier. Some will springboard off benefit for ever by going into work; others will come back in. We have allocated £129 million on die New Deal pilots for those over 25, but we will only be able to work out effective cost for a person in employment, without them going back on to benefit, when the scheme is well under way.
I believe those were the points raised. Again, if I have missed any, I shall write to noble Lords. I commend the regulations to the House.

Social Security (Incapacity, Earnings and Work Trials) Pilot Schemes Regulations 1999
11.47 p.m.
Baroness Hollis of Heigham Baroness Hollis of Heigham rose to move, That the draft regulations laid before the House on 10th March be approved [12th Report from the Joint Committee].
The noble Baroness said: My Lords, the purpose of these regulations is to test two measures aimed at helping people with a disability or a long-term illness to try out work while remaining entitled to benefit payable on the grounds of incapacity.
These are the first regulations to be made using Section 77 of me Social Security Act 1998. This power allows beneficial changes to be made on a pilot basis which will give us the ability to test different measures to determine which are the most effective in helping people with a disability or long-term illness who wish to move towards the world of work. It allows us to learn from pilots what works and what does not and therefore offers us a learning loop which is denied us when we start out with the roll-out of the national scheme.
The regulations form part of a package of pilot changes which includes a £200 Jobfinders Grant and a £50 a week jobmatch payment—independent research suggested that those were two of the most effective measures in helping people back to work in terms of value for money. They were brought in using powers in me Employment and Training Act 1973.
Regulation 1 provides for the way in which the regulations are to be described and the period for which, subject to parliamentary approval, they are to have effect— namely, from April 1999 to April 2000—and interpretation of terms used in die regulations. I could describe what is meant by "pilot scheme", "pilot scheme period" or "pilot scheme area", but bearing in mind die lateness of the hour I shall not do so unless your Lordships request it.
Regulation 2 provides that the regulations will apply to people living in a pilot scheme who are receiving a benefit on grounds of incapacity from one of die pilot offices. Regulation 3 sets out the people to whom the regulations apply. Regulation 4 sets out die conditions for die first pilot we wish to test, the incapacity earnings provision. The current benefits system has been built on the principle that a person is entitled to benefit on the grounds of incapacity if they are, or are treated as, incapable of work. At die moment someone on incapacity benefit is not allowed to do any work at all unless it falls within one of die exceptional permitted work categories such as therapeutic earnings. This creates a considerable barrier to re-entering die labour market, making it a very big step for people to take up work. We want to test allowing people to do a small amount of work while receiving an incapacity benefit, so that they can take a more modest first step if they wish.
Under this pilot a person receiving an incapacity benefit will be able to do any work subject to a limit of £ 15 a week without losing benefit. The kind of situation we have in mind is where someone with a substantial learning difficulty may only want, or be able to work, two or three hours a week. As a result of this regulation such a person

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would be able to keep all of the earnings—unless he or she is paid extremely generously—up to £15 without it affecting their benefit. Whereas DWA rules kick in at, say, the 16-hour limit, we are talking about people who may be working for small periods of time and therefore for quite modest sums which nonetheless they will be allowed to keep under the £15 a week rule.
Regulation 5 provides for the second change to the benefit system that we wish to test. Under this proposal, a person will be able to undertake a work trial without losing benefit. Work trials are run under an existing Employment Service programme that allows employers to offer vacancies to clients on an unpaid basis for up to three weeks. This allows a client to see whether the job is suitable and allows the employer to evaluate the suitability of the jobseeker. During the trial the client remains on benefit and both they and the employer take part without obligation. Work trials are used for real, full-time vacancies where the job is expected to last at least six months. We know that there is a rather high success rate with these trials and that people are kept on.
Regulation 6 makes provision for people who, for whatever reason, move out of a pilot scheme area but who continue to do the work started under the pilot. In some cases it would have been unfair if they were forced to give up the work they had started. This regulation therefore allows for geographical mobility.
Regulation 7 provides that on expiry of these regulations a person can continue to benefit from the pilot measures for six more months. That allows for sensible planning of an end to the work if a person decides not to continue with it.
These two measures which I believe are entirely beneficial and which I believe will be widely welcomed are designed to give people claiming an incapacity benefit the opportunity to try out work without risking their position. We hope that for some people with a disability these measures will represent a real opportunity to take the first steps in moving from benefit into work. I hope your Lordships will support these regulations. I beg to move.
Moved, That the draft regulations laid before the House on 10th March be approved [12th Report from the Joint Committee]. —(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, I have only one point to make as there is something I do not quite understand. As I understand it, the programme allows employers to offer vacancies to jobseekers on an unpaid basis for up to 15 working days. I say 15, but the noble Baroness mentioned three weeks, and I am not sure which is the correct figure. No doubt she will tell us.
Baroness Hollis of Heigham: My Lords, me technical language is 15 working days, but that is three times five which makes three weeks.
Lord Higgins: My Lords, given the weight of the programme we have this evening I shall not go into that. But be that as it may, I am slightly puzzled about the work on an unpaid basis for up to 15 working days. However, it also appears that the jobseeker remains on benefit during the work trial and both the employer and the jobseeker take part
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in it without obligation. It appears that the work trials are used for full-time vacancies of at least 16 hours where the job is expected to last six months. I am not clear what the relationship is—no doubt it is due to the lateness of the hour—between the 15 working days, or three weeks, on the one hand, and the idea that the jobseeker will have a job that lasts six months. No doubt the noble Baroness can explain that. Further, given that this is a niche market, I am not clear why this has to be full-time employment rather than part-time.
Lord Addington: My Lords, I briefly and humbly refer the noble Baroness to the points I made when I spoke to the wrong order.
Baroness Hollis of Heigham: My Lords, I had hoped that in my introduction to these regulations I had, to some extent, addressed the noble Lord's point. I accept the point I think he was seeking to make that £15 is a modest sum, but it is modest because it is parallel, for example, to the amount that a lone parent can retain if she is on income support and is working. There are perfectly decent and proper "reads across", but the group for whom we think it may be particularly appropriate are those working very short hours indeed—for instance, someone with severe learning difficulties who may nonetheless be working in a retail outlet, but supported. They will be able to keep that money, and it seems right that they should.
This brings me to the second point made by the noble Lord, Lord Higgins, who was baffled about the relationship between the 15 days and the work vacancy. This may have been because I was cutting corners when trying to explain the scheme, being mindful of the time. Basically, the work trial is not work experience but a trial in a real job. The trial means that for three weeks a person can do a real job and continue to receive benefit. At the end of the trial the client and the employer can decide whether they wish to continue the employment. To qualify for that three weeks, the job must be a real job in the sense that it is full time. By full time we mean over 16 hours; not necessarily 30 or 35 hours but the point at which family credit, working family tax credit or DWA would kick in.
Secondly, the job must be one that is not temporary; in other words, it must be a job that lasts at least six months so that, if the work trial is successful, the person will go into a real and worthwhile job. The definition of that real and worthwhile job is that it is full time—more than 16 hours— and it will last a minimum of six months. As I say, there appears to be an attractively high success rate as a result.
With a disabled person, for example, an employer may not be aware of the disabled person's capacity; in turn, the disabled person may not be fully aware of how much staying power, physical fitness or aptitude he may need for a particular job. It is a no risk, no obligation situation. In practice it has turned out to be very successful. Both parties come in and, as a result, a person goes on to gain a job. With that explanation I hope that your Lordships will accept the regulations.

National Minimum Wage (Offshore Employment) Order 1999
11.56 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville)The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville) rose to move, That the draft order laid before the House on 10th March be approved [12th Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move the order standing in the name of the noble Baroness, Lady Hollis of Heigham.
On 2nd March we had a useful debate on the two sets of draft regulations which implement the minimum wage. I now present a draft Order in Council which will extend the provisions of the National Minimum Wage Act, as well as the implementing regulations, to people who work offshore.
The employers of these workers will be subject to the same obligations as other employers under the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999. They will be required to pay the workers at least the national minimum wage and to comply with the other requirements relating to the calculation of minimum wage pay and hours and the need to keep sufficient records.
Such workers will also have a right of access to their relevant records if they believe they are not receiving the national minimum wage and will be entitled to bring a claim for failure to pay the national minimum wage before an employment tribunal or other civil court. The draft order provides that tribunal claims will be heard before tribunals in England and Wales, Scotland and Northern Ireland according to the offshore area where the relevant act or failure to act took place.
Noble Lords may ask why it is necessary to extend the Act at all to offshore workers. The oil and gas industry is not one which would normally be associated with low pay. Instead, at least until recent months when the price of crude oil dropped significantly, it has usually been described in terms of bonanza, boom and oil riches. The workers who have been employed offshore have generally done very well from the exploitation of North Sea oil and gas. I believe that this remains true of the general picture and probably for 99 percent, of cases.
But even in the richest sectors there may be pockets of low pay. Not everyone is an oil or gas engineer or a construction worker. Someone has to do the less well-rewarded jobs such as cleaning, general maintenance or refurbishment. That may also be the case in the oil and gas sector. If one believes what is reported in the press, there are stories that some workers who paint North Sea rigs are paid as little as 81p an hour. If such stories are true, 81p an hour is as unacceptable in United Kingdom waters as it is on dry land. It is right that workers should receive the minimum wage whether they are on dry land or offshore. It is therefore right to extend the provisions of the Act in this way to offshore employment.
I trust that your Lordships will find this draft order straightforward. We have had the arguments of principle about the national minimum wage. It will shortly become a reality for workers on die mainland. It must be right to extend the protection of the Act to offshore workers. It is logical to do so, and it complies with standard practice. It means that the national minimum wage picture will be complete from 1st May, when this order will come into force.
Moved, That the draft order laid before the House on 10th March be approved [12th Report from the Joint Committee]. —(Lord Sainsbury of Turville).
Lord Higgins: My Lords, die Minister rightly says that the matter of principle involved in the National Minimum Wage Act has been debated at considerable length. He is fully aware of the views of those of us on this side of the House.
The Minister referred to the level of pay of those working offshore but seemed a little uncertain, although the figure he quoted was very precise. He seemed to believe that there were people who were paid as little as 81p an hour. Given the precision of that figure, he presumably has some evidence. If that is so, perhaps he will tell us how he sees the Act operating as regards those people.
Secondly, how are the number of hours worked calculated when employees are on board a ship or a rig when there is no means of getting them off during the course of a tour of duty? Finally, how is the time spent on board counted for the purposes of the Working Time Directive?
Midnight
Lord Razzall: My Lords, we share the objectives of the Government with regard to the national minimum wage. We welcome the implementation of the legislation and the regulations laid under it.
I wish to make just one point to the Minister. These regulations are aimed at the offshore oil and gas industry. In the light of publicity over the past 24 to 48 hours in relation to the road haulage industry, does the Minister have any plans to extend the regulations to that industry?
Lord Sainsbury of Turville: My Lords, I shall take those points in order. Regarding the figure of 81p, I was referring to a case that appeared in the press. My caution in confirming that is that I do not always believe everything that I read in the press, particularly these days.
On the question of hours, the provision applies in the same way as on land; that is, whenever people are working. The Working Time Directive does not at this point apply to offshore workers, who were one of die excluded categories. That is now being looked at as a further extension of the provision. So far as concerns its application elsewhere, I shall leave that for another occasion. I commend the order to the House
House adjourned at two minutes past midnight.