Lords Sitting of 30 April 2001

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.

Child Poverty, East and Central Europe
Baroness Massey of Darwen Baroness Massey of Darwen asked Her Majesty's Government:
How the Department for International Development programmes are helping to alleviate child poverty in central and eastern Europe.
Baroness Amos: My Lords, the Department for International Development's policy in central and eastern Europe, as elsewhere, is focused on the reduction of poverty. We are determined to do all we can to mobilise the international system to meet the international development targets by 2015 in order that today's poor children do not become the parents of larger numbers of children living in extreme poverty in the next generation. In those countries of central and eastern Europe where the problems are most acute we are supporting specific children's welfare and social assistance reform programmes.
Baroness Massey of Darwen: My Lords, I thank the Minister for that encouraging reply. However, is she aware that some countries of eastern Europe have worse levels of child poverty than many developing countries? Does she agree that unless western governments are vigorously active in this area the situation will create more distress and instability in the region?
Baroness Amos: My Lords, I agree with my noble friend. The transition to a market economy in central and eastern Europe is producing rising levels of child poverty, which is a cause of great concern. It has had an impact on the provision of child services.
The Department for International Development increasingly focuses its bilateral assistance on the poorer countries in the region. We are supporting specific children's welfare and social programmes, for example, in Romania, Bulgaria, Kosovo and Serbia. We are also working with the multilateral organisations because we feel that the leverage we can generate from working with those organisations is important. I agree with my noble friend. We need vigorously to tackle the problem.
Baroness Williams of Crosby: My Lords, where European Union or World Bank funds are made available to central and eastern Europe, can the Minister assure the House that primary education and public health will be protected along the lines promised
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by the Chancellor of the Exchequer? Can the noble Baroness tell the House whether that aim is working in practice?
Baroness Amos: My Lords, the noble Baroness refers to the European Union and the World Bank. A number of organisations are working in the area of health, including the Department for International Development. For example, in Bosnia we are supporting healthcare reform. In Kosovo we give management support to Pristina University Hospital. In Serbia we support the Ministry of Health
I am aware that the European Union and the World Bank have a number of programmes in the region. However, the Department for International Development is not supporting primary education projects in the region.
Baroness Cox: My Lords, does the Minister agree that the many economic and social problems in eastern and central Europe, highlighted by the excellent report of the European Children's Trust, The Silent Crisis, are often associated with large numbers of orphans and abandoned children. Is DfID supporting any programmes to help orphaned and abandoned children? The policy has tended to be to put them in often unsatisfactory institutional care. Is DfID helping to promote a preferable form of foster family care?
Baroness Amos: My Lords, Romania in particular has suffered from a legacy of inadequate government financing and poor use of resources in relation to children's welfare. We have a major £3 million, three-year programme of assistance to the national authority for child protection and adoption. The money is being used in a variety of ways. For example, a consultant has advised on options to improve current adoption practices. With the authority, we have looked at management structures. We have considered training and development, and other areas about which I am happy to write to the noble Baroness in more detail.
Baroness Whitaker: My Lords, now that the United Kingdom has become the fourth largest donor to poor countries, a near 40 cent rise having been achieved over previous years, can we not do more for this very needy area?
Baroness Amos: My Lords, it was announced last week that the United Kingdom has become the world's fourth largest donor. We are focusing more on poorer countries in central and eastern Europe. However, at the end of March 2003 we shall no longer have programmes in the better-off countries of the region—for example, Poland, the Czech Republic, the Baltics, Slovakia and Slovenia. But we shall be focusing on the two candidate countries, Bulgaria and Romania, and on the Balkans.
Baroness Rawlings: My Lords, are not the two charities—the Free and Democratic Bulgaria (Children) Foundation works with Britain's Childhope—exactly

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the kind of children's charities which DfID can support, especially as they are being forced to close this year because of an EU reduction of funds? Does the Minister know that they have applied to DfID for funds but to no avail? What can Her Majesty's Government do for these worthy causes?
Baroness Amos: My Lords, the noble Baroness has asked a number of questions in this House on specific charities which have approached the Department for International Development for funding. As the noble Baroness is aware, we have clear criteria against which we assess those applications. I am happy to consider the two organisations to which she refers and write to her with more information.
Lord Watson of Richmond: My Lords, will the Minister acknowledge the clear determination that the new Government of Romania have shown to come to grips with the problems of child poverty and, in particular, with the scandal of children's homes and orphanages? Given the symbolic as well as the actual importance of that, will she assure the House that Romania will be given a high priority in the programmes, not just financially, but also in terms of know-how? If we can succeed in Romania, it will be a guide to the rest of eastern and central Europe.
Baroness Amos: My Lords, as I said in answer to the noble Baroness, Lady Cox, we have a £3 million programme in Romania that covers a number of areas. The international community is working very hard. I agree that the Government of Romania are working hard to develop alternatives for children in institutions. The EC has been foremost in support of that effort and has allocated £15 million for spending in 2001. The noble Lord is right to stress the importance not only of giving financial support but of developing the skills and capacity of people in those countries so that we build for the long term.

Swinfen Hall Young Offender Institution
2.44 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
What is their response to the Chief Inspector of Prisons' report on young offender institution Swinfen Hall, published on 3rd April.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, the Chief Inspector described Swinfen Hall as a centre of excellence and a healthy prison in which young prisoners can mature as people and are given the opportunity to address both their offending behaviour and their educational, work and social skills shortcomings. There is an excellent "Moving Out" course to prepare young prisoners for their release. The Chief Inspector's excellent report is a great credit to the governor and her staff.
Lord Quirk: My Lords, I am grateful to the Minister for that reply. As Swinfen Hall is in general a welcome example of good practice—unlike Stoke Heath, for example, on which Sir David also recently reported—would it not be a good idea for this report to be required reading at every institution in the Prison Service? Might not that result in a bit more focused attention on education issues, which some of us have grown old reiterating, such as the point made in paragraph 5.09 about the transfer of education records?
Lord Bassam of Brighton: My Lords, the noble Lord has made a number of useful points. I am sure that the report ought to be required reading. I know that inspection reports are widely circulated in the Prison Service. They are certainly filleted for good practice. The inspector drew attention to 14 areas of good practice. There is much sense in recommendation 5.09. No doubt it will be dwelt on. It is essential when planning educational courses for young individuals that their educational records are easily transferred. Let us hope that we can do that using the best of new technology in the future.
Lord Campbell of Alloway: My Lords, may I ask the Leader of the House why the Front Benches should pre-empt the Back Benches, contrary to the erstwhile traditions of this House?
Lord Acton: My Lords, reverting to the Question, does my noble friend agree that we read a great deal about reports on prisons and offender institutions where things are far from well? Are the Government making any great effort to publicise this report and good reports in general?
Lord Bassam of Brighton: My Lords, we always make strenuous efforts to publicise good reports, but unfortunately good reports attract far less attention. This one deserves to attract a great deal of attention. Sir David Ramsbotham said that he was taking a unique step in his time as Chief Inspector of Prisons by declaring Her Majesty's Young Offender Institution Swinfen Hall to be a centre of excellence. We should be proud and celebrate that fact and congratulate the staff at Swinfen Hall, who are obviously doing a very good job. Their work on improving the establishment over the past five or six years should be more widely known about publicly, particularly in the Prison Service.
Lord Carlisle of Bucklow: My Lords, does the Minister agree that Sir David's report on Swinfen Hall shows his willingness to be critical when prisons are bad and to praise when they are good? Is it not another example of what an excellent Chief Inspector of Prisons he has been? Has a decision been made about his future?
Lord Bassam of Brighton: My Lords, as I am sure that the noble Lord knows, we are in the process of appointing a new Chief Inspector of Prisons. Sir David

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has done an excellent job. I met him and his inspection team last week. They assured me that Swinfen Hall was not the only establishment that they had praised over their years of looking—quite rightly critically—at the prison estate. They said that there is much good practice across the prison estate. We need to draw more from that to ensure that standards generally are raised.

Kyoto Agreement and United States
2.49 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
Following the rejection by the United States Government of the Kyoto Agreement on climate change, 'whether they will propose to the World Trade Organisation that it should authorise sanctions against United States industries that benefit from not having to pay the climate change levy.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the Government have made clear our deep concern about President Bush's remarks on Kyoto. However, we do not believe that trade sanctions would be a helpful way of engaging the United States on climate change. We will continue to work towards our aim of ratification and entry into force of the Kyoto protocol by 2002. The climate change levy is a key part of the UK's climate change programme. It is intended to ensure that industry and other parts of the UK non-domestic sector play their part in helping the UK to meet its Kyoto commitments.
Lord Berkeley: My Lords, I am grateful to my noble friend for that very full Answer. However, does he agree that UK manufacturers, who are liable for the climate change levy, are competing unfairly with US companies, which make no such contribution? Does that not justify a levy such as, I believe, the US Government imposed on cashmere because it did not like the solution to the banana dispute with the European Union a couple of years ago? Is it not the case that, if such action is good for them, it is good for us?
Lord Whitty: My Lords, although one has a certain sympathy with what my noble friend says, we do not believe that that is a sensible way in which to conduct trade negotiations. The WTO process has an integrity of its own. The US tried to put pressure on the WTO arrangements when they were going in its favour. However, we believe that the environmental dimension of international trade arrangements needs to be addressed. Indeed, the EU is anxious that the next WTO round addresses that. However, discussions on that aspect should be kept separate from those on Kyoto.
Lord Waddington: My Lords, what European countries, EU and non-EU, have ratified Kyoto? Is it
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not correct that the 15 EU countries have not begun to get close to the 8 per cent cut in carbon dioxide emissions target, and are they not all agreed on one thing—that is, that Germany has no hope of ever meeting the Kyoto target and honouring its promise to do away with nuclear energy?
Lord Whitty: My Lords, the last part of what the noble Lord said is definitely not true. The Germans, along with the British, are most on course for meeting their Kyoto commitments under the European bubble. Other European Union members are not as on course. We are anxious that they take measures which the British and German Governments have taken to ensure that we meet those commitments. It is hoped that the EU as a whole will aim for ratification by our target date of 2002.
Baroness Williams of Crosby: My Lords, will the Minister confirm that the European Union is far ahead of the United States in respect of energy conservation and the attempt to use cars which use fewer fossil fuels in order to maintain a rate of mileage? Will he consider putting across to the United States good practice such as reducing the use of energy, which would enable the US not to open the Alaskan nature reserve for the purpose of acquiring oil?
Lord Whitty: My Lords, it is certainly true that the European Union, EU countries individually and European-based manufacturers have made substantial changes which limit the use of fuel, particularly in the area of transport. The commitment of European car manufacturers to improve fuel efficiency will save 4 million tonnes of carbon equivalent by the year 2010. Hopeful signs are being seen in the United States that manufacturers there are picking up the message. Indeed, politically within the United States—for example, in California—that message has also begun to be taken on board. Other voices have also been heard in relation to President Bush's remarks.
Lord Davies of Coity: My Lords, although I recognise the genuine level of criticism registered against the United States Government, does my noble friend agree that, if the British Government followed the terms of this Question, not only would it make a difficult situation that much worse, it would be counter-productive?
Lord Whitty: Yes, my Lords. As I indicated, the use of World Trade Organisation mechanisms for achieving changes in the American Government's stance on Kyoto does not seem sensible and would lead to infraction proceedings against us under WTO rules.
Lord Tanlaw: My Lords, can the noble Lord tell the House what the scientists have been saying? What level of global warming is due to the sun and what level is due to industrial activity? Until that is made clear, is it not the case that many industrial countries will wonder

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why they should cut back on their emissions if many of them are due to natural causes? I believe that such statistics would be most helpful in putting forward this argument.
Lord Whitty: My Lords, the basic science of climate change, which effectively identifies the degree of human activity contribution to the step change in the rate of warming, is now fairly well understood and shared by the vast majority of scientists across the world. The latest International Panel on Climate Change report represents over 3,000 scientists from countries of all persuasions, including the United States and others. Therefore, I do not believe that the science surrounding this issue is now disputed by the vast majority of scientists. However, it is necessary for governments and industrialists to adapt to the facts.
Lord Lamont of Lerwick: My Lords, given the precariousness of the United States economy and the risks to the world economy of a United States recession, does the Minister agree that the imposition of sanctions on United States industries would merely lessen world trade, which the WTO exists to promote?
Lord Whitty: My Lords, yes. I have not advocated sanctions against the United States. However, we have advocated that, in terms of its own responsibilities, the United States should recognise the advantages to itself and to the world of addressing the problems which are causing 25 per cent of the world's carbon emissions. Were the United States to address those problems, the long-term benefits, not only ecologically but also to its economy and people, would become more evident. We hope that within its administration the voices which already recognise that come to prevail and that we can get down to constructive talks at Bonn in July and beyond in order to bring the Americans back into the discussions on climate change.
The Lord Bishop of Hereford: My Lords, will the noble Lord tell us what he believes to be available to European countries by way of bringing pressure to bear on the United States? If sanctions are not the way, what can we do to persuade that country? Does he believe that there is any chance of a change of heart on the part of the United States?
Lord Whitty: My Lords, I believe that there is indeed a chance for a change of heart. Clearly the Europeans will have to be flexible in negotiations. The American position has been made clear, but there will have to be some adjustment to that position. Nevertheless, I believe that the universal view of the European nations, which has been conveyed to the American administration by various means, industrial and private, will bring about a desire on behalf of the Americans to engage constructively in future negotiations. As I said, we shall see the beginning of that in Bonn in July and it is hoped that we shall then be back on course. This is probably the most important issue to face world leaders and I believe that President Bush recognises that.
Lord Stoddart of Swindon: My Lords, does my noble friend agree that, although the majority of scientists may well be in agreement about global warming and CO2, a group of scientists, led by the distinguished Professor Fred Hoyle, believes that, far from needing less CO2 in the atmosphere, we need more if we are to avoid a second Ice Age?
Lord Whitty: My Lords, I read the report of that view in those terms in the newspapers a few weeks ago. I do not believe that that is quite the position of Professor Hoyle. The conclusions that he draws reflect very much a minority of scientific opinion not only in this country and in Europe but throughout the world.

Marriage and Family Policy
2.59 p.m.
Baroness Young Baroness Young asked Her Majesty's Government:
Whether support for marriage remains one of the Government's aims for family policy.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, yes. There has been no change whatever in the Government's support for marriage. I repeat what I said in your Lordships' House on 17th January in a debate promoted by the noble Baroness:
"A loving marriage between two parties of the opposite sex provides, for the overwhelming majority in our country, the best assurance of a happy personal life and provides the surest foundation upon which to rear a successful family".—[Official Report, 17/1/01; col. 1162.]
Baroness Young: My Lords, I thank the noble and learned Lord for that reply and remind him of other parts of his speech in that debate. He made it clear that government policy was primarily to support single mothers and children. Does he agree that every single piece of research evidence shows that what is best for children is to be brought up within the framework of a married couple and that marriage should be promoted as a better lifestyle than any other?
The Lord Chancellor: My Lords, in my view, the Government ought not to, and could not, force people to marry; nor could we prevent people who are not married from living together. Moreover, we cannot prevent people from divorcing if they have made up their minds to do so. We live in a free society and we must respect the choices that people make; we must not condemn them. We could not be—we should not be—condemnatory of cohabiting relationships outside marriage.
Baroness Billingham: My Lords, surely it is always the case that children must come first. They should not be discriminated against by the state on the basis of the status of their parents or their parent.
The Lord Chancellor: My Lords, I completely agree with that; our primary concern must be the welfare of children. We are committed to the provision of a safe,

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secure and loving environment for the upbringing of children. That does not mean criticising or penalising people who choose not to marry; nor does it mean that the Government do not recognise the validity of or the stability provided by other relationships, such as one-parent families. Many lone parents and unmarried couples raise their children just as successfully as do married parents.
In my view, the role of the state is to encourage, not to compel, and to provide practical help, not to preach. Children of unmarried couples are not outsiders in society; they are as much insiders and worthy of support as are the children of couples who have chosen to marry. I could not begin to contemplate an apartheid of preferred children and non-preferred children that was dependent on the status of their parents.
Lord Boardman: My Lords, how does the noble and learned Lord reconcile his policy with the Government's taxation policy, which jeopardises many of the tax advantages once enjoyed—they existed for a long time—by married couples?
The Lord Chancellor: My Lords, our fiscal priority is to put children first. We concentrate resources where they are most needed: on families bringing up children, especially those on lower incomes. I repeat that it is wrong to discriminate against children on the basis of their parents' status. By October 2001, families with children will on the average be £1,000 per year better off as a result of measures introduced during this Parliament and 1.2 million children will be lifted out of poverty.
Baroness Carnegy of Lour: My Lords, does the noble and learned Lord see any connection between the decline in the number of parents who are married and the increase in so-called yob culture among, in particular, boys and young men?
The Lord Chancellor: My Lords, I find it difficult to draw a connection.
Baroness Buscombe: My Lords, we are told that this year the Law Commission will propose giving legal rights to live-in couples. Will the noble and learned Lord define for us the term, "live-in couple"? Would live-in couples have to be having a sexual relationship in order to have those legal rights or would those rights also pertain to other couples, such as two sisters or two other relatives living together in the same home?
The Lord Chancellor: My Lords, I doubt whether the Law Commission is as concerned with the sexual relations of people who live together as are some others. However, it is currently undertaking a review of the law as it relates to the property rights of home sharers. The Government will of course consider what it proposes. The working paper is currently expected later this year and it will be followed by a report in due course. The Government have taken no decisions whatever in this area.

Business
3.5 p.m.
Lord Carter: My Lords, it may be for the convenience of the House if I say a few words about today's proceedings relating to the Chinook helicopter debate. Although there are Motions on the Order Paper in the names of the noble Lords, Lord Tordoff, Lord Chalfont and Lord Rodgers of Quarry Bank, it has been agreed that there will be one debate. The noble Lord, Lord Tordoff, will speak first and move the Motion standing in his name. The noble Lord, Lord Chalfont, will speak next and move his amendment. A debate will then take place on that amendment. That will provide an opportunity for the noble Lord, Lord Rodgers, and any other noble Lord who wishes to take part, to speak. At the end of the debate, it may be helpful if the noble Lord, Lord Tordoff, responds to any points that have been addressed to him. The noble Lord, Lord Chalfont, will have the right to reply. The business will then be disposed of without any further debate in the following order: first, the amendment of the noble Lord, Lord Chalfont; secondly, the Motion standing in the name of the noble Lord, Lord Tordoff; and, thirdly, the Motion standing in the name of the noble Lord, Lord Rodgers.

Liaison: Select Committee Report
3.6 p.m.
The Chairman of Committees (Lord Tordoff): My Lords, I beg to move the Motion standing in my name on the Order Paper.
This report follows from a resolution that was moved by the noble Lord, Lord Chalfont, on 5th March after debate. It stated:
"whilst recognising that the final decision will be a decision for the whole House, it is desirable that the Liaison Committee should consider the appointment of a Select Committee to consider all the circumstances surrounding the crash of Chinook helicopter ZD 576 on the Mull of Kintyre on 2nd June 1994".—[Official Report, 5/3/01; col. 91.]
I am aware that many noble Lords will he disappointed by the fact that the report from the Liaison Committee recommends that the House should not appoint a Select Committee. I shall try to explain how the committee came to that conclusion.
First, the matter was not in any way treated lightly by the Liaison Committee. There were three meetings, which were called at very short notice. After the first meeting it was decided to ask the noble Baroness, Lady Symons, to give evidence. We were very grateful to her for giving a clear explanation of the Government's and the MoD's position and for her assessment of the likely attitude of the two Air Marshals to appearing before the Select Committee. Her evidence is of course published as part of the report. The noble Baroness's position can best be described as that of agnosticism to the idea of a House of Lords Select Committee on this subject. We understand that.

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Secondly, as a result of that meeting, we asked the noble Lord, Lord Chalfont, to appear before us, which he did. We are extremely grateful to him because he enabled us to assess his interpretation of the phrase in his original Motion,
"to consider all the circumstances surrounding the crash".
At first sight, that appears to be very wide indeed. However, if noble Lords examine the evidence that he gave in answer to question 39 on page 18 of the report, it is clear that he believed that the inquiry could be quite tightly drawn and that it would not be necessary to go into the "technical details" and background.
After considerable discussion, certain opinions emerged in the Liaison Committee. I trust that members of that committee will join in this afternoon's debate and set out their views in more detail than I can. It is important to say that a large majority of the committee—this was not a unanimous opinion—felt a degree of unease about the board of inquiry's findings. They also felt—this appears in paragraph 7 on page 6 of the report—that:
"It may well be that the conclusions of the Board of Inquiry could usefully be reviewed by a suitable body".
Why could that not be done by a Select Committee of the House of Lords? Careful reading of the questioning by members of the committee reveals the answer to that question. First, some members were worried that however much we attempted to limit the scope of a committee of inquiry, it would be necessary to consider a substantial amount of existing evidence in order to decide whether or not the Air Marshals were justified in coming to the conclusions that they did.
With the best will in the world, an injustice to the board of inquiry may arise in those circumstances. First, there may not be sufficient technical expertise available to test the evidence. Secondly, there may not be sufficient time to give attention to the weight of the evidence and the committee may have considerably to extend its timespan in order to cope.
Some members felt that that was not a suitable matter for a House of Lords Select Committee because of its quasi-judicial character and that to embark upon such an enterprise might set unfortunate precedents for similar attempts to query legitimately constituted boards of inquiry in other fields. One thinks perhaps of a noble Lord having doubts about the Paddington inquiry, the "Marchioness" inquiry or the Kings Cross fire inquiry, and seeking to set up a Select Committee to look into those.
Also, some members of the Liaison Committee believed that it would be possible to have a small, focused, tightly timetabled Select Committee. To that end a Motion was tabled by the noble Lord, Lord Strathclyde, which, in the event, was defeated by four votes to two.
I repeat that this is a matter for the whole House, as was said in the original resolution. I look forward to hearing your Lordships' views from all sides of the House this afternoon, bearing in mind that this report
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is not an inquiry into the findings of the board of inquiry, but simply looks at the appropriateness of your Lordships setting up a Select Committee.
Finally, I can do no better than summarise by quoting paragraph 7 of the report, which states:
"It may well be that the conclusions of the Board of Inquiry could usefully be reviewed by a suitable body. But we do not believe that a select committee [of this House] is such a body".
I commend the report to the House.
Moved, That the Second Report from the Select Committee (HL Paper 67) be agreed to.—(Lord Tordoff.)
3.15 p.m.
Lord Chalfont Lord Chalfont rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House rejects the recommendations of the Liaison Committee and appoints a Select Committee of five members to consider the justification for the finding of those reviewing the conclusions of the RAF board of inquiry that both pilots of the Chinook helicopter ZD576 which crashed on the Mull of Kintyre on 2nd June 1994 were negligent".
The noble Lord said: My Lords, I realise that it is no small matter to ask this House to reject a recommendation by one of its Select Committees. However, on this occasion I feel obliged to do so and should like to take a few moments of your Lordships' time to explain why.
I begin by saying that there is nothing confrontational about this amendment. It is not in conflict with the Government. This is a story in which Ministers, both of this administration and their predecessors, followed almost exactly the same line on the advice of their officials. Nor is it in conflict with the Liaison Committee, which is quite entitled, and indeed required, to make its recommendation to the House. However, I confess to being somewhat surprised that the recommendation should have gone so clearly against the clearly expressed will of your Lordships' House and especially that the committee should have rejected the Motion put to it by the noble Lord, Lord Strathclyde, which proposed a Select Committee based upon the concept of narrowing the terms of reference to address only a review of the conclusions of the Royal Air Force board of inquiry.
I make a point here which has been the subject of confusion not only in your Lordships' House but also between the board of inquiry and the reviewing officers; that is, that the technical position is that the reviewing officers are part of the board of inquiry, so they should not be separated from it. What is at question here is the verdict of the board of inquiry, including its senior reviewing officers.
My amendment is designed to take account of the concept advanced by the noble Lord, Lord Strathclyde, in the Liaison Committee. There is no need—perhaps I worded my original Motion badly in this respect—for the Select Committee to examine hundreds of witnesses, to go through thousands of pages of evidence, or assess arcane technical matters of

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great complexity. But a Select Committee of some kind, perhaps with narrower terms of reference, is the only way now in which this matter can be resolved; the only way in which we can have a fair hearing about the verdict of the RAF board of inquiry.
In the course of the evidence given to the Liaison Committee your Lordships will notice that the Minister, the noble Baroness, Lady Symons, made it abundantly clear that any other course which had been suggested was unacceptable to the Government; in other words, there was no point in suggesting to the Government that they should set up an independent board of inquiry. I tried to suggest that on many occasions. It was rejected and the noble Baroness made it clear in the Liaison Committee that it would be rejected again. The Government will not set up an inquiry which they believe may cast doubt on the verdict of their Air Marshals.
So the inquiry has to come from somewhere else. I hope therefore that the House will now agree—and perhaps the Chairman of Committees will accept—that a Select Committee should be set up (in spite of the findings of the second report) possibly of a slightly different kind and perhaps under the chairmanship of a senior legal figure. Its remit would confine its deliberations to the sole question of the review of the findings of the Royal Air Force board, based—this is perhaps the most important sentence I shall utter in the course of m y few remarks—firmly on the Royal Air Force regulations at the time of the accident; namely, that a deceased air crew should not be found guilty of negligence unless there is no doubt whatsoever about the causes of the accident.
If the committee were to examine that aspect and come to a conclusion on it, it could well be expected to report back to this House before the end of this year. Indeed, if the Chairman of Committees would undertake to refer back the second report, which has been a matter of careful consideration, to the Liaison Committee and to the Committee of Selection and ask them to appoint a Select Committee in those terms, preferably before the dissolution of Parliament, there would be no need for my amendment and I would ask the leave of the House to withdraw it.
When I tabled my original Motion on 5th March, it was at first framed to ask the House to agree to the establishment of a Select Committee without any further formalities. However, I was persuaded, understandably, to change the wording of the Motion to refer the matter to a Liaison Committee for procedural reasons relating to the proper requirements of your Lordships' House. However, I hoped I had made it clear to the House on that occasion that I regarded this as a matter for the whole House. Your Lordships may recall that the Minister intervened to say that the Government would not oppose my Motion and, that they would co-operate with any Select Committee set up. The House then agreed to my Motion with out a Division.
It seemed clear to me that it was the will of the House that a Select Committee should be set up. I assumed therefore—being nave in all these matters—that the
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reference to the Liaison Committee was a purely procedural formality and that the Select Committee would be set up. I was wrong.
As noble Lords will see from the report of the Liaison Committee—this was mentioned to some extent by the Chairman of Committees—three separate pieces of evidence were laid before them. The first, which was not mentioned by the noble Lord, was an extremely strongly worded memorandum from the chairman of the Select Committee on Public Accounts in another place which examined the process for the convening and conducting of Royal Air Force boards of inquiry. I shall not go into that now other than to say that it specifically called into question the sustainability of the findings of the Royal Air Force board of inquiry in this case.
The second piece of evidence—not in chronological order but I place it next—was my own. I suggested that there was no need for any long, drawn-out examination of all the technical aspects of the controversy, but that it would be reasonable to proceed on terms of reference which focus entirely upon the conclusions of the Royal Air Force board of inquiry, including the verdict of the reviewing Air Marshals.
Finally, there was an extremely clear, unequivocal proposition from the Minister that the Government would find it difficult, if not impossible, to put a question mark against the judgment of the two Air Marshals by setting up a government inquiry. However, in her evidence she went on to state:
"I think, frankly, your Lordships' House is one of the more sensible fora in which that could happen".
One could not have a clearer endorsement from the Minister for the idea of appointing a Select Committee.
The view of the Liaison Committee was that it would be undesirable to substitute the decision of a Select Committee for that of the Air Marshals. That seems somewhat surprising, at the very least. It seems to imply that once a Royal Air Force board of inquiry has arrived at a verdict, that is the end of the matter and there can be no question of an appeal of any kind against that verdict. I need hardly remind a body such as your Lordships' House that in a democratic society military law is always subordinate to the civil authority.
Also in a democratic society Parliament is, or should be, sovereign. It seems extraordinary that we should now suggest that the House of Lords is neither competent nor properly equipped to examine an alleged miscarriage of justice of this seriousness. What has happened to the doctrine of the sovereignty of Parliament? The suggestion that this would set a precedent is no argument. To mention the "Marchioness" and other possibilities is a non-argument. All these cases can well be decided upon their merits, as I think this case should be.
The other reasons given by the Liaison Committee for recommending that the House should not appoint a Select Committee also seem to be somewhat lacking in substance. Whatever might be said, this is not a

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matter of professional judgment by Air Marshals or technical expertise. This is largely a matter of common sense and partly a matter of law and natural justice. It calls for an examination of the evidence which was available to the original Royal Air Force board of inquiry and ultimately a decision by a committee of this House as to whether that evidence could justifiably lead to the conclusion that there has been gross negligence beyond any possible doubt.
The sanctity of the chain of command in the Armed Forces does not take precedence over natural justice. I served long enough in the Armed Forces to recognise the importance of the chain of command in normal circumstances. However, these are not normal circumstances. For years, the Ministry of Defence declined to review this verdict on the grounds that it would do so only if there was new evidence. That is totally misleading and disingenuous. There is no new evidence and there never will be. The Ministry of Defence officials know that perfectly well. The aircraft was totally destroyed when it landed. There were no survivors. There will never be any new evidence. However, much is known now which was not known then. That may not be exactly new evidence, but at least it casts doubt upon the cause of the accident, or increases already existing doubts.
Everything which has emerged since the verdict (which may not be new evidence but is an accumulation of considerations, some of which were known to the Ministry of Defence but to no one else) confirms that there is much doubt about the causes of the accident (that can be seen from the findings and evidence of the original board of inquiry) and that the verdict of gross negligence is unsafe and unsustainable. In the debate on 5th March the Minister stated that the Government would co-operate with any Select Committee of your Lordships' House which is set up. As I have said, she also stated that any other form of inquiry would be unacceptable.
I apologise for detaining your Lordships. However, as noble Lords will have gathered over the years, I am passionately involved in this case. Perhaps I may conclude by reminding your Lordships of the sombre, unadorned facts of the case, leaving aside legal, technical and other arguments. First, someone authorised the transportation to Scotland in one helicopter of 25 senior members of the Northern Ireland intelligence community. Secondly, the helicopter was of a type with which test pilots had expressed dissatisfaction up to the day before the accident. That aircraft carried no accident data recorder and no cockpit voice recorder. Thirdly—the most sombre fact of all—the helicopter crashed on the Mull of Kintyre killing all passengers and crew.
Fourthly, the initial finding of the subsequent Royal Air Force board of inquiry, before it went to the reviewing officers, was that there was no evidence which led them to attribute human failings to the air crew. Fifthly, as I have said before, at that time Royal Air Force regulations stipulated that deceased air crew should not be found guilty of negligence unless there was no doubt whatever about the causes of the
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accident. Sixthly, and finally, as they were entitled to do, the reviewing officers reversed that finding and concluded that the two pilots had been grossly negligent. Two young officers were therefore found guilty of what was the equivalent of manslaughter, without legal representation and without any right of appeal. Perhaps it is relevant to remind your Lordships that since 1998 boards of inquiry have not been allowed to allocate blame. That was one of the lessons of the Chinook disaster on the Mull of Kintyre. That came a little late for Flight Lieutenants Tapper and Cook.
Before the Select Committee which I hope will be established gets down to discussion and the arguments, those are the basic facts of the case. If your Lordships decide not to support my amendment today, you will be closing finally the only remaining door which could lead to a review of the verdict, which would then remain as a permanent stain on the memory and reputation of these two young men. As I said earlier, if at the end of our discussion the conclusion of any Select Committee which is set up upholds the findings of the Royal Air Force board of inquiry and its reviewing officers, that would be an end of the matter as far as I am concerned. I would pursue it no further. However, equally, if a Select Committee is established and finds that the verdict is unsustainable, I suggest that that too should be an end of the matter and the verdict of gross negligence should be set aside. I beg to move.
Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House rejects the recommendation of the Liaison Committee and appoints a Select Committee of five members to consider the justification for the finding of those reviewing the conclusions of the RAF board of inquiry that both pilots of the Chinook helicopter ZD576 which crashed on the Mull of Kintyre on 2nd June 1994 were negligent".—(Lord Chalfont.)
3.30 p.m.
Lord Rodgers of Quarry Bank: My Lords, I speak from these Benches but I do not speak on behalf of these Benches. My noble friends are free to speak and vote as they choose on the Motion in the name of the Chairman of Committees, the amendment of the noble Lord. Lord Chalfont, and, indeed, on the Motion standing in my name.
I take the view that this is a House of Lords matter. We must make up our own minds on these matters across party in the light of the issues which have been presented to the House by the Liaison Committee and which no doubt will be referred to in our discussions today.
Perhaps I make the matter plain to the House. In doing so, I shall use an expression used in a different context by the Chairman of Committees. As regards the issue which provoked the debate, the finding of gross negligence against the two pilots of Chinook helicopter ZD576—the matters which were raised by the noble Lord, Lord Chalfont—towards the end of his speech, I am an agnostic. I have taken no view whatever of the merits of the issue.

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I wholly understand, as must the whole House, the feelings of the families of the young officers who died on that occasion. I respect the tenacity and passion of the noble Lord and of members of all parties and of none who have campaigned so that justice will be seen to be done. But that is not the issue before the House. The issue before the House is a simple but extremely important one both for the role of this House and for the future. Is a Select Committee an appropriate way to seek to carry forward and to resolve this dispute? I believe that it is not. Whatever the merits of the issue, however convenient it may be for the Ministry of Defence, a Select Committee does not fit this case.
It follows that I shall vote for the report of the Liaison Committee and vote against the amendment tabled by the noble Lord, Lord Chalfont. As for my own Motion, I tabled it as an alternative to the noble Lord's proposal in recognition of the strength of feeling expressed in this House on 5th March, of strong views held in another place and of public disquiet, which I fully acknowledge, especially in Scotland. I have no wish to close down further campaigning on the issue if that is what others want.
It will be said—it was said by the noble Lord, Lord Chalfont, today and no doubt it will be said by the Minister in reply—that the Ministry of Defence is not prepared to set up an independent inquiry of the kind referred to in my Motion and that the Prime Minister has endorsed that position. It was the view expressed by the noble Baroness, Lady Symons, in her evidence before the Liaison Committee.
That must be the position of the Government until the Government change their mind. Governments always say no until circumstances persuade them that they should be saying yes. It is no surprise to me that the Ministry of Defence wants to put the matter to rest and that it believes that one way of doing so is to push it on to your Lordships' House. I make no complaint at all.
However, governments change their minds. They change their minds on the eve of general elections. They change their minds in new Parliaments. Prime Ministers change their minds and the Prime Minister could certainly set up an inquiry if he so wished, either now or later—or for that matter, as referred to in discussions with the Liaison Committee, invite the noble and learned Lord the Lord Chancellor to do so. There is no constitutional impropriety in the Prime Minister saying no now and saying yes later. For those who are doubtful, to put it at its least, about the procedure for setting up a Select Committee, that option exists and I have placed my Motion on the Order Paper so that that will be plain.
The report of the Liaison Committee sets out the powerful reasons why the committee, by a majority, felt that it was not right to proceed with a Select Committee. The Chairman of Committees referred to those issues today. First, a Select Committee is not equipped to second guess the professional judgment and technical expertise of the RAF board of inquiry. That is probably true, but it is not the heart of the matter. Secondly, a Select Committee is unlikely to
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end the controversy. Again, that is true, but it is not the heart of the matter either. The heart of the matter, and the issue for the House today, is that this House should not adopt a quasi-judicial role for which it is unfit and which could be regarded as an encroachment on the separation of power.
We now have a Constitutional Committee of this House and perhaps it might have deliberated and reported on that matter. Be that as it may, it would be very unwise for your Lordships' House, in its lay capacity, to go down the road to becoming a court of appeal for those with a grievance, however legitimate, against the finding of some other body. Would we see other Select Committees when disciplinary decisions in the Armed Forces are similarly found to be unacceptable and legitimate grievances remain? Would we find appeals to your Lordships' House from decisions of the Police Complaints Authority? Would decisions of planning inspectors, when they cause offence, be brought to this House for a Select Committee? And what about the decisions of regulatory bodies?
It may be said that it is very unlikely that that will occur. It may be said that it will be within the good sense of individual Members of the House not to go down that path. I respectfully ask the House to consider that whatever the virtues of this case, and I can see that many noble Lords believe them to be strong, this could be a slippery slope damaging in the long run to the integrity, role and standing of your Lordships' House.
The noble Lord, Lord Chalfont, in a spirit of compromise, which I am sure the House will greatly welcome, has in his amendment suggested perhaps a narrow definition of the Select Committee name. It is not for me to say—and I do not know the answer—whether it is effectively possible to withdraw such an amendment and substitute for it an oral commitment of a kind which I understand the noble Lord has made. But I have to say to your Lordships' House that the noble Lord's proposal is still for a Select Committee. The phrase he used was a Select Committee "of some kind". Unless the Chairman of Committees advises the House, I know of no other way under the Standing Orders of this House that a committee should be established. So whatever the terms of reference, it will be a Select Committee of this House sitting in judgment.
On the other hand, in addition the noble Lord has helpfully suggested that there might be narrower terms of reference to review the findings. But I cannot see how, nor do I think the noble Lord suggested, that a review of the findings could be conducted without second guessing the verdict passed on the two pilots. Therefore, although I believe that the noble Lord has tried to be extremely helpful to the House and those who have disagreed with him, my instincts tell me that however well intended he has been, his proposal is not radically different to set aside the objections which I believe exist in following the course recommended in his amendment.

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I repeat that the issue for the House is not whether two pilots were grossly negligent—they may not have been. It is not whether we sympathise with their families—I believe that all of us do. It is not whether the procedures of the Ministry of Defence were fair—I understand that they have been changed. It is not whether the campaigners will stop campaigning—they will no doubt go on. The issue is whether a Select Committee of this House is the proper way to resolve these matters. I am not persuaded that it is, and that is why my Motion offers an alternative if that is a course that the House would prefer.
3.40 p.m.
Lord Strathclyde: My Lords, I find it extremely puzzling that we seem to be back where we were when we had a debate on the evening of 5th March. My impression was that the House was persuaded—there were exceptions—by the case put forward by the noble Lord, Lord Chalfont, and his Motion was passed without a Division. I believed it to be the will of the House that the Liaison Committee should not only consider but recommend the appointment of a Select Committee. On that evening, for the Liberal Democrats, the noble Lord, Lord Wallace of Saltaire, said that,
"the argument that this House does not have the resources for a further Select Committee is the weakest argument against one. If there is an argument for another Select Committee, then the resources need to be provided".—[Official Report, 5/3/01; col. 101]
The noble Lord was right then, and he still is.
If this House decided to set up a Select Committee it could appoint a committee of outstanding distinction and should staff it and equip it as well. I do not accept that a Select Committee of this House would not be suitable to conduct an inquiry. I do not agree that an inquiry led by a High Court judge—we should remember that the Government have said firmly that they would not favour such a process—would have more authority than your Lordships' House. Instead, I agree with the noble Baroness, Lady Symons, who told the Liaison Committee that,
"frankly, your Lordships' House is one of the most sensible fora",
to take a fresh look at this matter.
The first objection of the Liaison Committee was that a Select Committee would not be equipped to review technical and professional issues. But the noble Baroness again disposed of that when she said in evidence:
"I think it would be a mistake to say … it is all too difficult for everyone else to understand … There is nothing so mysterious that sensible, intelligent people who have looked carefully at the facts could not understand it".
When asked if she thought whether,
"a committee composed of lay Members of the House of Lords, possibly chaired by a Law Lord, could actually do justice to this subject",
the noble Baroness, speaking with all the authority of the Ministry of Defence, said:
"My honest opinion is yes".
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That is, surely, the answer to the second objection of the Liaison Committee; namely, that the Ministry of Defence might ignore a report. I am ready to rely on the noble Baroness's words on this matter. Frankly, if we here decided not to do something because a government might ignore us, we would be abandoning one central purpose of this House, which is to ask the Government to think again if we consider it right.
I hope that we can conclude the matter this afternoon without much further delay. All of us on 5th March received the clear impression that the Government accepted that a fresh view could usefully be taken by a Select Committee of your Lordships' House. At col. 107 the noble Baroness told the House, as the noble Lord, Lord Chalfont, reminded us, that the Government,
"will, of course, co-operate fully with any committee that your Lordships may decide to establish".
I thought that that was clear enough. Nothing that I heard in the Liaison Committee has changed my view that a Select Committee would be a practical and authoritative vehicle for further consideration of this matter. Certainly, I would not be deterred by a suggestion that a committee of this House might find itself acting in a quasi-judicial capacity. I am not sure that it would be, but even if it were there is precedent enough for it.
I was very surprised that the noble Lord, Lord Rodgers of Quarry Bank, opposed an inquiry in this House and subsequently tabled his own Motion. I hope that the noble Lord will not press his Motion because it is not binding on the Government and does not ensure that there will be an inquiry led by someone of the standing of a senior Law Lord, or retired Law Lord. When the Government respond to the debate perhaps they can tell the House what assurances they have given that if the Motion of the noble Lord, Lord Rodgers, were to be passed, they would set up such an inquiry. After all, that Motion does not ask the Government to do anything that they cannot already do now.
I was even more surprised when the Government, having given the House the impression that they had accepted the inquiry, failed to vote to set up a Select Committee when the Liaison Committee divided. That was at odds with the spirit of the clear undertakings given with absolute integrity by the noble Baroness. I make no charge against her.
The Chairman of Committees: My Lords, I am most grateful to the noble Lord for giving way. The only person at the Liaison Committee at that stage was the noble Lord, Lord Carter, who was not a member of that committee and was standing in. I make no further point other than that, technically, the noble Lord was unable to vote.
Lord Strathclyde: My Lords, I had not intended to raise that rather delicate issue. The government member of the Liaison Committee, the noble Baroness the Leader of the House, was unable to attend any of the three meetings. Neither the Attorney-General nor the Government Chief Whip who stood in for the

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Leader of the House on those occasions could take part in the vote. Perhaps a fairer way to put it is that the Government abstained by not being there.
We on this side of the House will have a free vote on this matter. I am sure that noble Lords opposite will also have a free vote. Following the Liaison Committee, I assume that if the noble Lord, Lord Chalfont, takes this matter to a vote the Government will abstain. That would be the correct thing for the Government to do. The noble Lord, Lord Chalfont, made a strong case on 5th March. He has made an equally strong case today. He has kindly referred to the Motion that I advanced in the committee. What he suggests would add to the standing and authority of the House. I shall support him and I hope that many noble Lords on all sides will do so too.
I conclude with a final thought on the causes of the crash. There is now a perception of doubt out there and so long as it lasts it blights unfairly both judged and judges alike. This House can help to dispose of that doubt, and we should not shirk our duty to seek to do so.
3.48 p.m.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, when we last discussed this issue in your Lordships' House on 5th March, I made it clear that the Government would not ask your Lordships to oppose the Motion then on the Order Paper in the name of the noble Lord, Lord Chalfont. In the course of my remarks at the conclusion of the debate, I told your Lordships that I believed that successive Ministers, Conservative and Labour, had been fully and honestly briefed about this tragic accident and that Ministers of both parties had been honest in their dealings in this House and in another place. Nothing has been, or is being, hidden because there really is nothing to hide.
Since then the Liaison Committee has reported its view and recommended against the appointment of a Select Committee and given its reasons for coming to that conclusion. The noble Lord, Lord Tordoff, has explained it further this afternoon. Subsequently, the noble Lord, Lord Rodgers, expressed his wish that the House should call on the Government to set up an independent review of the conclusion of the board of inquiry.
Perhaps if may deal first with the proposition of the noble Lord, Lord Rodgers. It is clear that those who feel that an injustice has been done to the dead pilots are challenging the determination and judgment of two Air Marshals who were the reviewing officers of the RAF board of inquiry. I remind noble Lords that this was a lengthy board of inquiry which took over one year and produced four volumes of a report and numerous annexes. It considered the issues in detail. It was a properly constituted board of inquiry which was presided over by servicemen of impeccable integrity and very great expertise—indeed, the best possible professional expertise. They were entitled to make the judgment that they made within the rules prevailing at the time, and since then no new evidence has come to light.
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In my evidence to the Liaison Committee, I reaffirmed that if the Government had felt there was a reason to reopen this matter they would have done so themselves. We did not and we do not. In making their final determination, the Air Marshals, both of whom were very experienced aviators, exercised their professional judgment as the reviewing officers. They were well aware of the import and impact of their judgment which was taken only after the fullest consideration of all the evidence. I repeat that they were required to look at this tragic case in the most objective and impartial manner. That is what they did. The fact that others may disagree with their judgment does not make it wrong.
The noble Lord, Lord Rogers, asks the Government to agree to set up an independent review of the conclusions of the board of inquiry into the crash. The noble Lord says, "Well, the Government changed their mind". But, in order to change the Government's mind, they need to believe that the original board of inquiry process was incomplete or flawed or that the judgment of the reviewing officers was incorrect. As I made clear in my evidence to the Liaison Committee on 28th March, there are no grounds on which the Government could accept those premises. I am well aware that my response will not salve the natural and absolutely understandable hurt feelings of those most closely involved in this tragic case; in particular, the families of the deceased pilots, with whom I am sure your Lordships have the utmost sympathy. However, it would not be right or proper for the Government to call into question those findings unless we believe we have a reason to do so; and we do not so believe.
I turn to today's contribution of the noble Lord, Lord Chalfont. Throughout our discussions on this very difficult issue the Government's position has been entirely consistent. The noble Lord, Lord Chalfont, suggested some helpful modifications—what one might describe as a "compromise"—to the remit of the Select Committee. The noble Lord, Lord Tordoff may believe that his committee would be prepared to consider that recommendation. If the noble Lord does so consider, the Government are content to leave the issue to your Lordships' judgment. If the Liaison Committee is content to recommend that a committee along the lines proposed by the noble Lord, Lord Chalfont, should be set up, the Government will not ask your Lordships to oppose that. Indeed, we would co-operate fully. As the noble Lord, Lord Strathclyde, was kind enough to remind your Lordships, that was my position when I answered the similar debate on 5th March.
Therefore, given the terms in which the noble Lord, Lord Chalfont, has made what I might describe as his "compromise proposal", I do not wish to oppose his suggestion. But I must, for the reasons which I have stated, ask your Lordships to oppose the Motion of the noble Lord, Lord Rodgers, which I believe takes us backwards rather than forwards in this debate.
3.53 p.m.
Lord Craig of Radley: My Lords, as a member of the Liaison Committee, perhaps I may explain why I

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support the report which is before the House. At that Liaison Committee meeting with the noble Lady, Baroness Symons, the noble Baroness talked about achieving a closure. After seven years there is an understandable feeling that a line should be drawn under the matter. But, from what the noble Baroness said in the course of her meeting with the Liaison Committee, it seems clear that there is no guarantee of closure. The noble Baroness was quite explicit. The MoD is not prepared to give any prior undertaking about its response to a Select Committee were it to be critical of the Air Marshals' judgments. I entirely accept that position.
Noble Lords will appreciate that as an RAF officer I have been required to deal with a considerable number of boards of inquiry into aircraft accidents. I have first-hand experience of what is involved. We were told that the quantity of material for the board of inquiry into the Chinook accident is massive and in many places highly technical. I am sure that it is. All of that information and evidence would probably have to be studied to consider the issues of negligence, of a breach of duty to take care, and because the Air Marshals' findings must rely on most, if not all, of what the original board members established in the course of their work. I have no doubt that that could be done. But I do not think that the purpose for which it was being done, in effect to use a Select Committee of your Lordships' House to sit as a court of appeal, as envisaged by the noble Lord, Lord Chalfont, is acceptable.
The noble Lord, Lord Chalfont, and others who have spoken on the matter, have always been at pains to stress that they were not impugning the integrity of the Air Marshals and that they had every right to find as they did. But it has to be said that sensational media treatment and less considered comments from some other quarters, far from upholding the Air Marshals' probity, have set out to denigrate it.
The noble Baroness, Lady Symons, said that she did not want to see the Air Marshals put in the dock. In the course of her evidence, the noble Baroness made it very clear that one of the reasons that Ministers, in the absence of new evidence, have not sought to set up a further inquiry was because it would be,
"an unprecedented dreadful blow to professional servicemen if we were to say there is no new evidence but we are going to start a new Board of Inquiry or we are going to get an independent judge in because we think your judgment was a bit 'iffy".
That is a most important point. The relationship between commanders and those under their command is of paramount importance to the operational effectiveness of the Armed Forces. Commanders must be respected and trusted by their subordinates, whether in matters of professional conduct or in discipline. It can only serve to undermine that sense of respect and trust if the actions of commanders are questioned on grounds which are not based on doubts about their own professional competence or integrity. With his immensely admired first-hand experience in military affairs, I feel sure that the noble Lord, Lord Chalfont, would agree with me on that point.
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This is a tough call: to meet the interests of the deceased pilots and their families, or to meet the interests of the service. I feel duty bound to support the interest of the service. It is inappropriate to set up an inquiry into the professional judgment of the Air Marshals. At the end of the day, it is their professional judgment on which we must rely, not only in this sad case but on so much else that they do in their capacity as senior officers of the Armed Forces. So I also do not support the Motion of the noble Lord, Lord Rodgers of Quarry Bank.
The interest of the House, thanks to the valiant efforts of the noble Lord, Lord Chalfont, has been concentrated most importantly on the doubts and worries of the families of the deceased pilots. All of us can understand and sympathise with their intense feelings of loss and distress. But I think that it is also right that the House should remember the families of the other two air crew and the 25 passengers on that ill-fated flight. Seven years on they are still being reminded each time that this topic gets further news coverage of their own tragic loss and the harrowing events of the time. Another inquiry will not bring them much comfort or hope. We must not overlook their sufferings and agony as we consider the way forward this afternoon.
It has frequently been argued that it is wrong that there is no right of appeal against the Air Marshals' findings, but each stage of the consideration of whether human failings contributed to an accident is separately arrived at: initially by the board itself; by the station commanders; by the convening officer, the first of the two Air Marshals; and then by the reviewing officer, the second Air Marshal. I can recall other cases affecting deceased air crew where the views expressed on human failings and negligence have been changed, sometimes more than once, as the stages of the board were completed.
In other words, procedures are built into the board of inquiry which explicitly must,
"consider whether some human failing caused or contributed to the accident",
a process of separate independent reviews of commanders with the help of their own staff. In this sad case, that process has been carried out at the MoD as well, as reported by 10 Ministers at the Dispatch Box. Surely there must be a limit to the number of times that findings are revisited and separately considered.
Finally, the House may wish to note that, in spite of the wealth of interest and publicity that this tragic accident has generated, it is sadly far from being the only one in recent years which has led to findings of negligence on the part of deceased air crew, and not only those who were in the RAF.
In reply to Written Questions from Mr Frank Field MP, who asked about the number of accidents in which deceased air crew were found guilty of gross negligence in aircraft that were not fitted with cockpit voice and flight data recorders, Mr John Spellar, Minister of State at the Ministry of Defence, said that,
"further research has confirmed that the Mull accident was … far from unique in its findings of gross negligence".

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I quote from a letter dated 10th July 2000 to Mr Field and placed in the Commons Library.
Each accident, some of which occurred after the Chinook one, will have unique aspects to it and the findings. But would the House feel that it was reasonable for any of them to become the subject for ad hoc Select Committees to consider? The House will recall that the policy change that boards of inquiry were not required to consider findings of negligence for deceased air crew in accidents was made only in July 1997, over three years after the Mull accident.
For all of these reasons, I agree with the Liaison Committee recommendation not to appoint a Select Committee to consider this matter.
4.1 p.m.
Lord Wigoder: My Lords, as the senior member of the Liaison Committee—I reach that position by equating seniority with long service—perhaps I may say, first, how much I and all the members of the committee admired the care and enthusiasm with which the noble Lord, Lord Chalfont, presented his case. Perhaps I may say, secondly, that I was one of the members of the committee who felt a deep sympathy for much of what the noble Lord was arguing.
As far as I am concerned, the matter can be put into one sentence. If there were to be any further inquiry into the matter, the issue would be whether the finding was justified by the evidence, applying the relevant standard of proof. I do not see how it is possible to cut short the nature of an inquiry if that is the issue to be inquired into. But that must surely be what the committee or tribunal would have to decide.
The important words are "the relevant standard of proof". Air Force regulations state that only in cases in which there is absolutely no doubt whatever should deceased air crew be found negligent. That is a most extraordinary standard of proof to apply. It is, if I may strike a slightly flippant note for a moment, adopted verbatim from "The Gondoliers":
"No probable, possible shadow of doubt—
No possible doubt whatever".
I ask your Lordships to consider the following point. As we go about our daily business of taking decisions of one kind or another, how many decisions could we take in a day if we had to apply that standard of proof to our own individual actions? It therefore seems to me—here I have disagree with the noble and gallant Lord, Lord Craig—that, bearing in mind that standard of proof, in a complex and technical matter such as this any reviewing body would start out by approaching the finding with substantial anxiety. I take that point no further at this stage except to say that. I am one of those who much sympathises with what the noble Lord, Lord Chalfont, and his colleagues are trying to achieve in this debate. Where I part company with the noble Lord, Lord Chalfont, is on the wisdom of the remedy that he proposes. I much prefer, not for party political reasons in any way, the remedy suggested by my noble friend Lord Rodgers.
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Much has been said about the fact that if the Motion of the noble Lord, Lord Rodgers, were to be carried and the Government were invited to set up an inquiry, the Government might take no notice of it. I understand that. Indeed, the noble Baroness, Lady Symons, indicated that that might very well be so; they would not take any notice of it and they would not set up a further inquiry. Is it not equally true that if that is the attitude of the Government at the moment and we set up a committee of inquiry that reports in a way that is adverse to the Government's present views, there is no guarantee that the Government will take the blindest notice? They clearly have their mind absolutely set on supporting the present conclusion and taking no further action. It is therefore no argument in favour of the amendment of the noble Lord, Lord Chalfont, to say that it may be that the setting up of a committee would be acceptable to the Government. We have not heard a word to suggest that its findings might be acceptable.
I suggest to your Lordships that it is not appropriate for the House to appoint a Select Committee to reach a conclusion of the guilt, innocence or civil liability of named individuals in respect of a specific incident on which a court or tribunal has already ruled. That would be for a House of Parliament to intervene improperly in the due processes of law. As far as I know—I shall be corrected if I am wrong—there is no precedent for the action proposed. If there had been a precedent, those who are in favour of the proposed course of action would have hastened to bring it to the attention of the Liaison Committee. As the Houses of Parliament ceased many years ago to be a court of law in their own right, it would be quite wrong for them to take action of this nature.
I know that there is an argument about the complexity of the matter—that is bound to exist if there is a further inquiry—and whether that is suitable for a Select Committee. I know that there is an argument about the strain on our resources, which is a point to be borne in mind. However, the really crucial argument is that if we adopt the course suggested by the noble Lord, Lord Chalfont, we shall be setting a precedent that may have unfortunate future consequences for the House. Perhaps I may give a simple example. We all know of cases in which there are alleged miscarriages of justice. It happens frequently. In some of those cases the allegations turn out to be justified. In some of those cases the allegations are espoused by distinguished authors who write books about the innocence of the defendant, set up protest committees and walk about saying, "Free the Westminster One", or whatever it might be. Some of those causes will always be able to find a champion in this House.
The present position is that if a defendant is convicted in a criminal case and appeals to the Court of Criminal Appeal, that court determines the conviction. There was a time, some years ago, when for all practical purposes that was the end of the matter. That is no longer so. The position now is that in any such case, if there is the slightest suggestion that, for example, new evidence has been discovered, the

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Criminal Cases Review Commission will listen to representations made to it about further proceedings and will then decide whether to go back to the Home Secretary or refer the matter again to the Court of Appeal. If we adopt this precedent, is it really beyond the bounds of possibility that in future years cases will arise with some frequency of criminal convictions being called into issue and sent on their way to the Criminal Cases Review Commission and then some noble Lord with very proper motives deciding that he will raise in this House the question of whether we should have a Select Committee to review the guilt or innocence of the defendant?
It may not be an exact precedent—very few precedents are exact—but the case we are now considering would be a good enough precedent to set that argument on its feet. If we adopt the line suggested by the noble Lord, Lord Chalfont, we shall be setting a precedent that may have sad consequences for the House in the future. In a word, I believe that it is not the role of this House to interfere in our system of justice in the way suggested by the noble Lord, Lord Chalfont.
Although I believe in the cause being promoted by the noble Lord, I feel that the best course for the future of the House, as well as the one that accords with the traditions of the House, is to pass the Motion proposed by my noble friend Lord Rodgers and thus invite and press the Government to take the necessary action.
4.10 p.m.
Lord Ackner: My Lords, noble Lords are faced here with a very heavy responsibility. Two highly respected and experienced pilots, now deceased, have been found guilty of gross negligence by two senior officers. That gross negligence accounted for the deaths of at least 26 people. The verdict is one that was taken in a situation where the deceased were not entitled to any representation. Furthermore, they were not entitled to any right of appeal.
It was my submission on 5th March before noble Lords and it is my submission today that the verdict reached by the Air Marshals was quite simply unlawful. It was unlawful because it was made beyond their powers. In forensic language it was ultra vires. For that reason it must be set aside ex debito justiciae— because justice so demands. It is not a question of discretion. The decision is a nullity.
Perhaps I may explain the short point of law which forms my justification for that rather emphatic submission. During the debate on 5th March, my noble and gallant friend Lord Craig of Radley said that the board of inquiry was not a court of justice. Its overriding concern was to discover what happened. The current position in regard to boards of inquiry of this kind is that they are not entitled to make any apportionment of blame.
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Perhaps I may ask noble Lords to assume for a moment that if, today, two senior Air Marshals overlooked this relatively new change in procedure and did in fact apportion blame, that decision would be set aside for the simple reason that the Air Marshals have no power to reach such a verdict. It was an unlawful decision that was ultra vires. Some seven years ago, the position was that the power to apportion blame existed, but only in very heavily circumscribed circumstances.
In the words of the regulation, it was possible only in cases in which there is—I stress the words—absolutely no doubt whatsoever that a deceased air crew can be found to have committed negligence. The words have obviously been carefully thought out. The word "absolute" is placed in front of "doubt". What does "absolute" add to the formula? The word presumes and emphasises that the doubt is unqualified and is unrestricted. Doubt is not limited to cases of "reasonable doubt".
What of the words "absolutely no doubt whatsoever"? The word "whatsoever" means that there can be no doubt of any kind. It may be said that the onus here requires certainty. I am saying that that is the case. That does not rule out everything. It may require a fertile imagination, but it would be possible to have a situation of certainty. Let us take the situation where a daredevil pilot said to his mess, "I am going to fly upside-down through that narrow clearing in the jungle". He then does so unsuccessfully. That would be such a case; in that situation, there would be absolutely no doubt whatsoever that the pilot had been negligent.
It is an obligation on the Air Marshals, if they are going to interfere with a decision reached by those below them, for them to explain how they have reached their decision.
The Chairman of Committees: My Lords, I am most grateful to the noble and learned Lord for allowing me to intervene. I am sure that what he is saying is relevant to the issue that might be placed before a Select Committee if one were to be formed. However, that is not the Motion before the House today. We are considering here the question of whether we should set up a Select Committee, not whether the Air Marshals were correct in what they did or whether this is a matter of law. With all due respect to the noble and learned Lord, I suggest that perhaps we should stick to that point and come to a conclusion.
Lord Ackner: My Lords, I think the answer to that, which of course I was just coming to, is that for the verdict to be considered valid, there are two requirements which must be met—each of them vital. First, the Air Marshals must have concluded that this was a case where there was absolutely no doubt whatsoever; secondly, that there was an adequate amount of material available to support such a decision. In my view—although I may be wrong and therefore the second question will fall to be decided—the Air Marshals fell at the first fence. They did not purport to say that, "This is one of those rare cases

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where there is absolutely no doubt whatsoever". The nearest they got to that—I quoted Air Vice-Marshal Day on 5th March—was to say,
The Board and Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation, in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules".
I stress the following words:
"In my judgment, none of the possible factors and scenarios is so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".
What is being said, quite simply, is that none of the factors or scenarios is of sufficient strength to provide a likely explanation.
That does two things: first, it puts the onus upon the deceased, which is wrong; and, secondly, it deals with probabilities. It does not deal with even reasonable doubt, let alone certainties. That is the only material in which that Air Marshal vouchsafes his reason for exercising this power. His senior officer, Sir William Rattan, adds nothing at all.
Perhaps Air Marshal Day gives the game away to some extent when he states:
"Therefore, while aware of the difficulty of attributing negligence to deceased aircrew, I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".
"Difficulty" is a gross understatement of the task that faced him. What faced him was near impossibility, and that is something that he did not address.
The only other part of the judgment which I think is worthy of quoting is,
"It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud covered high ground".
I entirely agree with him—it is incomprehensible—but that merely shows that it cannot be a situation in which there is absolutely no doubt whatever.
Your Lordships are being asked to pass by on the other side. I respectfully submit that that is an unworthy attempt to induce your Lordships to take the easy way out. I hope that your Lordships will reject it.
4.22 p.m.
Baroness Young: My Lords, having listened to the noble and learned Lord, Lord Ackner—who has clearly made a case in support of the noble Lord, Lord Chalfont—I feel that I must return to the original issues which were raised and to which the noble Lord, Lord Tordoff, referred.
I support the noble Lord, Lord Chalfont. The House should recognise that he has moved since 5th March: he has narrowed the terms of reference and made it perfectly clear that he will stand by the findings of any Select Committee and will not himself raise the matter again.
I speak as someone who has never taken part in any of the debates about this helicopter. As a member of the Liaison Committee, of course, I read with great care the debate on 5th March, the earlier debates and some of the papers that were put to us. When I arrived
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at the Liaison Committee I thought—clearly incorrectly—that it was a foregone conclusion that the Liaison Committee would set up a Select Committee. At the end of the debate on 5th March, it seemed to me perfectly clear that the House had determined that there would be a Select Committee.
I particularly felt this because I had read very carefully what the noble Baroness, Lady Symons, said on that occasion and, indeed, when she quite fairly told the Liaison Committee that the Government would not oppose a Select Committee. I have been a government Minister; I know what it is to stand up at the Dispatch Box and to make statements on behalf of a government. I know full well that no Minister would make a statement like that unless it had the full support of her department. No doubt, it had been to some Cabinet committee and had the support of the Government. It is a very serious and important statement to make.
I therefore assumed—quite incorrectly, as it turned out—that the Government would support a Select Committee in the Liaison Committee and would have to deal simply with the formalities of setting one up. As it turned out, the situation was quite different. I find it an extremely painful experience to have to say to the House that I believe that the noble Lord, Lord Chalfont, was misled on 5th March as to what was intended. He must be now very surprised by the result of the Liaison Committee.
The arguments subsequently put in the Liaison Committee simply do not stand up. The idea that a House of Lords Select Committee could not consider an issue like this—that it would not have the expertise—suggests at once that many Select Committees of the House on the most complex, technical and difficult issues are really not suitable for them at all. That argument simply does not stand up. The more practical arguments about staffing and money, again, simply do not stand up.
It seems to me that, at the end of the day, this is a constitutional matter. It is a duty of the House of Lords, as the legislature, to hold the executive to account. That is what it is expected to do. As to the argument put forward by the noble Lord, Lord Wigoder, when he said that if we agreed to this a lot of other issues would be raised, many of the issues he quoted are civil issues which would go before the civil courts. They are completely different issues from this one, which is a matter for a government department. We are not, therefore, talking about the same thing at all.
I listened very carefully to the noble Baroness, Lady Symons, when she said, once again, that the Government would not oppose a Select Committee. Are we to understand—I hope that someone will make this absolutely clear—that this means that the Government will support a Select Committee? Or does it mean that they simply will not be there on the day and, therefore, it will be, as the noble and learned Lord, Lord Ackner said, a case of passing by on the other side of the road?

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I wrote down what the noble Baroness, Lady Symons said. I hope that she will forgive me if I have not quoted her quite correctly. But are the Government saying that they will leave the issue to your Lordships' judgment today; that they will not oppose the noble Lord, Lord Chalfont, in putting this matter to the Liaison Committee; and that they will, in the Liaison Committee, argue in favour of a Select Committee? Unless we have that assurance we shall find ourselves in exactly the same position as we were on 5th March.
I feel unqualified to speak about this whole issue—I know only what I have read—but it seems to me, having listened to the debate, that the noble and learned Lord, Lord Ackner, made some extremely important legal points which, if nothing else, deserve full consideration. Having looked at the matter, I feel that we all owe a duty to the young pilots who died in this dreadful crash and who are unable to defend themselves. They have had very few people to speak for them and we owe it to their families to do what we can.
I entirely agree with the noble Lord, Lord Chalfont. The end of the Select Committee will be the conclusion of the matter as far as he is concerned. It would be appropriate if that were to be the end of the matter, but to leave it today in a state of suspense would amount, as the noble and learned Lord, Lord Ackner, said, to passing by on the other side of the road. Passing by does not matter to any of us sitting here, but it does matter to the families and it does matter to the cause of justice. I should have thought that your Lordships would think that it matters also to the House of Lords. It is one of our responsibilities. We are a legislature; we should hold the executive to account. I very much support the proposal of the noble Lord, Lord Chalfont, and I hope that the House will agree to it.
4.30 p.m.
Lord Lloyd of Berwick: My Lords, I support the amendment moved by the noble Lord, Lord Chalfont. I can do so briefly because I shall be following very much in the footsteps of the noble and learned Lord, Lord Ackner. I should make it clear that I have no detailed knowledge of the facts of the case, but it seems to me that at this stage detailed knowledge of the facts is not required.
To sustain its conclusion, the board of inquiry had to be left with absolutely no doubt that the crash was the result of pilot error or of negligence on the part of the pilot. That test is an objective one. It means that the board of inquiry must have excluded with certainty—that is the critical expression—every other possible cause; otherwise, it could not be driven to the conclusion of pilot error.
What were the other possible causes? Taking the matter purely hypothetically and knowing nothing about the facts, one possible cause could be engine failure. It does not follow that engine failure did not occur merely because there was no evidence to support such a finding. That is a great mistake and one that is
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often made. Absence of evidence means what it says: that there is no evidence one way or the other. It is not the equivalent of what is referred to by the noble Lord, Lord Craig, in paragraph 26 on page 14 of the report, as negative evidence.
Let us suppose that there was negative evidence in the hypothetical case of engine failure; for example, that the warning lights were shown not to have come on. Many years ago, I took part in an inquiry into a crash involving a Trident aircraft which happened shortly after take-off at Heathrow airport. The inquiry was presided over by the noble and learned Lord, Lord Lane, who I am glad to see is in his place. I have forgotten the details and even the conclusions of the inquiry. What I do remember is that warning lights do not always do what they should do. Should my hypothetical case be correct, it leaves open the question that the board of inquiry, in reaching its conclusion, applied the wrong test—the test of excluding with certainty every other cause.
In the end, that raises a legal question rather than a factual one. It seems to me, for the reasons given by the noble and learned Lord, Lord Ackner, that it is a relatively short question and that it is well within the capacity of a Select Committee of this House. For those reasons, I support the amendment.
4.33 p.m.
Viscount Colville of Culross: My Lords, perhaps I may add a few words as the last remaining member of the Liaison Committee to speak. I disagreed with the noble Baroness, Lady Young, in terms of the solution arrived at by the Liaison Committee. However, the noble Baroness has put her finger on an important matter on which there must be clarity before the end of this debate.
I came to the conclusion reached by the majority of members of the Liaison Committee—not after a thoughtless moment of impulse, nor indeed under the influence of my noble and gallant friend, but after, I hope, a proper anxiety about the matters under discussion.
A number of aspects of this case are truly regrettable. The first is the stain that hangs over the reputation of Flight Lieutenants Tapper and Cook. My noble friend Lord Chalfont has been pursuing that matter relentlessly for years, and I admire him for it.
The second, most regrettable aspect—which has since been put right—is that any board of inquiry should have the terms of reference to which both noble and learned Lords have referred. The board of inquiry then reaches a conclusion on dead air crew which has the effect of finding a responsibility certainly of a civil law nature and possibly, as was argued previously, of a criminal law nature.
The third disadvantage of this procedure is that there is no form of appeal. It is all very well saying that a review of the board of inquiry by senior officers forms a kind of appeal; but in the minds of most of us I do not believe that it does. This is the fundamental

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point. The trouble with such boards of inquiry—and this one is no exception—is that no one is allowed to see what happened.
My noble and learned friend Lord Lloyd has given an example of what might have happened. If your Lordships had the findings of the board of inquiry and the detailed remarks and conclusions of the two reviewing officers, it would be very much easier to discuss the case. What worries me at this stage is this. It is only too clear from the remarks of the two noble and learned Lords that, for the board of inquiry to reach the conclusion that it did reach, the two Air Marshals had to be certain to a very high degree indeed.
My noble friend Lord Chalfont says let their Lordships do it again. He says, rightly, I am sure, let them do it again in accordance with the same rules as applied. Therefore, the same degree of certainty would have to be leached according to the same burden of proof.
The evidence from the Liaison Committee indicated that the board of inquiry sat at least once a week for seven months. The review exercise took five months, during which time the committee also sat at least once a week—and I do not believe that in these matters there are any recesses. The pile of papers is colossal. What are the narrow terms of reference that your Lordships are being invited to adopt? There cannot be any narrow terms of reference. The only way in which a Select Committee of this House could reach a conclusion to the degree of certainty to which everyone has so far subscribed is to go through the entire exercise again. A Select Committee would require such explanations from expert witnesses or expert advisers as would enable it to deal with the technical matters concerned. I have no doubt that this could be done by a Select Committee. But is it the right way to proceed? Is it a useful contribution to our parliamentary proceedings? Is it the way in which our resources should be exercised and spent—and to what effect?
Lord Lloyd of Berwick: My Lords, will the noble Viscount give way? Is it not a possible result that we shall be left in the position of the cause simply not being known? That would be a perfectly respectable conclusion. What is objected to is a conclusion that points the finger, possibly unjustly, at the two pilots because the Air Marshals applied the wrong test.
Viscount Colville of Culross: My Lords, I accept that a Select Committee might conclude that it did not know the cause. That does not overturn the findings of the board of inquiry. It does nothing to solve the problem of the two pilots and their families. The Ministry of Defence would have to adopt the Select Committee's report; and there is no indication that it would be prepared to do so on the basis of a rehearing simply of the same material all over again.
Lord Chalfont: My Lords, will the noble Viscount give way? If the Select Committee came to the conclusion that it could not establish the cause of the accident, that would immediately set aside the verdict
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of the Air Marshals. If the Ministry of Defence did not accept that, then the mind boggles. I have nothing more to say. If a Select Committee of this House decides that it cannot determine the cause of the accident on the basis of the available evidence, 'As the noble Viscount saying that the Ministry of Defence might not accept that? If it did not, it would be seriously in error.
Viscount Colville of Culross: My Lords, I have heard my noble friend say that there should be narrow terms of reference. I have attempted to explore how narrow, or how broad, those terms of reference might be. I have suggested to your Lordships that this is a massive exercise. The Select Committee may come to any of the conclusions that noble Lords care to imagine. However, at present, we have a clear statement from the Minister—she has maintained this—that the Ministry of Defence does not want to reopen the matter; and it will not do so on its own account. I do not know what would happen if the sort of solution was reached by the Select Committee that has just been predicated.
That is why I am asking for a little more clarity on the matter before we make up our minds. I emphasise that it cannot be a narrow exercise; it must be a full and complete rehearsal of the entire material that was before that board of inquiry. There is no escaping that. But what happens when a conclusion is reached? I cannot subscribe to something that will entail all that time and trouble—and, indeed, renew the expectations of the Cook and Tapper families, and their supporters—only to find that nothing happens. Before we finish this debate, can we know the answers to the following questions? First, we should know whether my noble friend Lord Chalfont accepts that it is a formidable task that he proposes. Secondly, can we have clarity from the Government Front Bench of what they would do if the Select Committee came to the conclusion that it did not know, or concluded on similar terms? I do not believe that we ought to appoint a Select Committee unless those two matters are clarified.
4.42 p.m.
Lord Mackie of Benshie: My Lords, it is many years since I served in the RAF, but I have kept up with the thinking of the service. I should like to support what was said by the noble and gallant Lord, Lord Craig, in this matter. One thing that ran through every court of inquiry in which I took part long ago—and that also applies to the ones that I hear about now—was the utmost reluctance of the examining officers to adopt the easy notion of pilot error. One theme that runs through every court of inquiry in the RAF is that all the possibilities must be exhausted.
The noble and gallant Lord has given the record of the enormous trouble that has been taken to go through all the evidence. I have no doubt that it was with extreme reluctance that both Air Marshals came to this conclusion. However, I am absolutely sure that they were certain that there was no other cause they could find. I believe that this reluctance on the part of

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the service adds weight to the opinion of the RAF courts of inquiry. It would save a great deal of distress if this House were to accept that the utmost care had been taken in arriving at this verdict.
4.43 p.m.
Baroness Park of Monmouth: My Lords, before I begin my remarks, I should like to draw your Lordships attention to an extract from page 18 of the committee's report in which the noble Lord, Lord Chalfont, says that,
"the Wing Commander in charge of the original Board of Inquiry, before it went for review to the Air Marshals, said there was no way in which they could attribute human failing to the pilots".
That is what is at issue. However, to my mind, the real issue today is the credit of this House. When we discussed this issue in March, we decided that the ad hoc committee should consider the appointment of a Select Committee to examine the issue. A commitment was made by the will of this House and, at that time, the Government said that they would co-operate; indeed, the Minister said so today.
I do not believe it was expected that the Liaison Committee would, in effect, reverse our decision—a decision for which there was both wide support, as well as a commitment from the Ministry of Defence to co-operate. I believe that a commitment was made in principle by the House, and that it must be honoured.
4.44 p.m.
Lord Jacobs: My Lords, I recognise that the debate is drawing to a close. I sense that the feeling of the House is that we should make a decision on the matter. However, perhaps noble Lords will excuse my intervention. I should explain that I travelled back from the United States last night in order to attend this debate. I have been working on this subject with the noble Lord, Lord Chalfont, for more than two years. Nevertheless, I shall shorten my remarks in deference to your Lordships.
The question is: why does the pressure continue unabated for a new inquiry to be instituted? The issue is in fact quite straightforward; it is not one that the Ministry of Defence is willing to entertain. The standard of proof required is "absolutely no doubt whatsoever". It is a higher standard of proof than that which applies in a criminal court. While most of us who have studied the evidence accept that the pilots could have been guilty of gross negligence, we are wholly unable to comprehend how four reviewing officers could come to the conclusion that there was absolutely no doubt whatever as to the pilots' guilt. I shall not enumerate on this occasion the dozens of examples of doubt, except to refer to one notable issue; namely, the fact that the random engine failure warning signs were being illuminated from time to time on that particular Chinook, and the cause of those signals was not properly understood at that time.
From the evidence, the reviewing officers were unable to find any mechanical or electronic cause of the accident. They reasoned that the accident must
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have been caused by pilot error. By no standard of justice whatever can that be considered proof. Why, therefore, are we now seeking a Select Committee when surely a fresh inquiry would be more appropriate? On that, none of us disagrees—I believe that I speak for the noble Lord, Lord Chalfont, in that respect—but as governments have refused for seven years to agree to establish a new inquiry on the basis that no new evidence has been produced, it seems unlikely that they will now agree to do so. Indeed, as we heard today, they probably will not.
The issue that really troubles the Ministry of Defence is that the opening of such an inquiry would be to re-examine whether the judgment of the reviewing officers was mistaken. Perhaps I may refer to part of the statement made by the noble Baroness, Lady Symons, at a meeting with the Liaison Select Committee in which she stated that by having a new inquiry the Government would imply that they had no confidence in the judgment of the Air Marshals. The Minister went to say that she did not think that the Government could instigate anything that would cast doubt on the judgment of highly professional men of absolute integrity, who we know reached a judgment based on all the evidence that was available to them in accordance with a properly constituted board of inquiry.
To my way of thinking, that is no different from a court finding a defendant guilty and saying that the case cannot go to appeal because that would cast doubt on the judgment and on the integrity of the court. That would be an absurd situation. Yet we are faced with such a situation here. Under the British system of justice there is always a court of appeal, except in this case. Therefore, not only were the deceased pilots not provided with legal representation, they were also denied a court of appeal. I am sure that your Lordships will agree that that is the key to the whole matter. Surely there should be some court of appeal; indeed, if the Government are unwilling to open the inquiry, the appointment of a Select Committee would at least be appropriate.
Perhaps I may mention that I consulted my noble friend and kinsman Lord Wigoder, who is a successful QC. He expressed the view, with which I agree, that we cannot have a Select Committee acting as a court of appeal for every defendant who is unhappy with a court's decision. However, as I respectfully pointed out to him, there is a court of appeal in all normal legal cases; but in this particular case there was none. That is why something must be done. I urge noble Lords to support the Motion for the appointment of a Select Committee. I should have been equally willing to support the Motion tabled by my noble friend Lord Rodgers, if the Government had given an undertaking that they would set up some form of new formal inquiry if his Motion were carried. Sadly, they have not agreed to do so.
4.49 p.m.
Earl Attlee: My Lords, I remind the House that I have a somewhat peripheral interest in this matter. I spoke from the Opposition Dispatch Box to a very

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similar Motion tabled on 5th March. I stand by every word that I said on that occasion, and shall not repeat now all the points that l made then. I am thankful that we shall have a free vote tonight. I have no difficulty with the House acting in a quasi-judicial role, if that is what we are doing.
Noble Lords have talked about creating a precedent. I disagree. This case is different from a criminal case. The deceased were not able to defend themselves. I also believe that the relatives of the deceased did not realise what the outcome of the case would be.
The Select Committee will not be a court of appeal. However, I caution your Lordships that it may turn out to be a. committee of confirmation. The Select Committee may well find that the pilots were guilty of gross negligence. It may well find that everything is in order. I believe that this House is an ideal place in which to conduct the onerous duty of reviewing matters of service discipline and the inquiry. I believe that we need narrow terms of reference. The advantage of the Select Committee procedure in your Lordships' House is that it avoids the risk of a legal bonanza outside.
The noble Viscount, Lord Colville of Culross, said that we need to consider all the matters. The major points that concern us are uncommanded flying movements; the FADEC and related accidents; possibly the flight plan and the rules under which the Air Marshals had to operate. The committee needs to be told why there is not a problem and to be told by the experts that we are worrying about nothing.
It has been implied that the Select Committee will be unable to assimilate all the information. If a Select Committee of your Lordships' House is not able to assimilate all the information, how on earth were the Air Marshals able to do so?
I believe that the Select Committee should also consider whether it ought to be able to question the integrity of the Air Marshals. Perhaps it ought to be an instruction to the committee that it cannot question the integrity of the Air Marshals.
It is possible that there was gross negligence on the part of one of the pilots. But suppose the subordinate pilot strongly opposed the breaking of the visual flying rules? Suppose he went to the absolute limit of safety and military discipline in suggesting to the superior pilot that he should not break the visual flying rules and fly into the clouds? Why should he be held to be grossly negligent in those circumstances? The committee should consider that point in detail.
Some noble Lords are convinced that the pilots were guilty of gross negligence. Indeed, some of my noble friends are of that view. But this issue will not go away. The actions of the Air Staff will continue to be questioned. Ministers will continue to be put under pressure on this issue. The Air Marshals are able to defend themselves only by having letters published in the broadsheet newspapers. I believe that it would be advantageous for them to appear before a Select Committee of your Lordships' House to explain why they reached the decision that they did. I believe that a
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Select Committee is ideally suited to consider that matter. I strongly support the Motion of the noble Lord, Lord Chalfont. I believe that if we follow that route, the matter can be put to bed once and for all.
4.53 p.m.
Lord Mayhew of Twysden: My Lords, I ask for indulgence in adding further reflection at the end of this debate. The noble Lord, Lord Wigoder, stated that if we were to accept the Motion of the noble Lord, Lord Chalfont, we would be trenching upon the separation of powers. I thought that that was wrong, for the following reasons.
It is, of course, to trench upon the constitutional understandings and conventions of either House of Parliament to engage in a review of a judicial decision. However, we are not considering the judiciary in this case. We are considering the conduct of extremely senior and experienced officers of one of the Armed Forces for whom Ministers answer in Parliament. We all appreciate that they have done their level best. However, as has been said, there are doubts outside about the conclusion they have reached—doubts that have been mightily reinforced by contributions from all sides of the House, most notably from noble and learned Lords on the Cross Benches. This House is entitled to review the decision of the Royal Air Force, just as it is entitled, in my submission, to review anything else that is done by any of the departments of state for which Ministers answer in Parliament. That is the fundamental distinction. We all observe a self-denying ordinance of not tangling with the judiciary. However, as I say, we are not talking about the judiciary here.
If there is a doubt that will not go away, should we pick up the challenge here? I confess to something of an emotional involvement with the matter in that I knew most of those who perished in the Chinook crash. I met their families and I attended a religious service for one of the pilots. I stood at the airport for a long time while the bodies of those who perished were brought back to Northern Ireland. I have always felt that something more should be done than has yet occurred to explore the conclusion that was reached by the board of inquiry.
On any view of the matter, a grievous wrong was done to the passengers, whatever the reason. On one view of the matter a grievous wrong may have been done to the pilots. I agree that the terms of reference probably have to be wide. It is difficult to review the justification for the decision without going into quite a lot of what that justification purported to be founded upon. The Select Committee would consider whether the essential foundation for the finding existed; namely, that there was absolutely no doubt whatever. It would not produce a finding as to what actually happened. As has been said from the Cross Benches far more authoritatively than I could express it, ii would consider whether that essential foundation existed. If it

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was discovered not to exist, the members of the Select Committee would have done their duty and their job in so finding. I support the noble Lord, Lord Chalfont.
The Chairman of Committees: My Lords, perhaps it would be appropriate if I were to begin to wind up this long debate which has gone on for two hours and has been—
4.57 p.m.
Lord Cooke of Islandreagh: My Lords, I hope that I may speak for a few minutes. First, I am sorry that the consequences of this tragic and horrific accident are still rolling on after seven years for reasons mentioned by the noble and gallant Lord, Lord Craig of Radley. The loss suffered by the widows and families in those terrible circumstances must be hard enough to bear, but each reference to the incident in the press brings back the agony that they have suffered and which they have done their best to put behind them. I do not think that that can be ignored.
Some practical aspects bear a little consideration. I know the Mull of Kintyre well, having sailed past it and around it many times, often with the upper portion hidden in cloud. The lighthouse, which is low down because of frequent cloud, can usually be seen. I can visualise the events from the report from the yacht which was sailing through the North Channel at the time. The crew saw the helicopter coming from the direction of Rathlin Island towards the Mull. It was flying below cloud level and therefore could see the lower part of the Mull and perhaps the lighthouse, which the yachtsmen could see. The yacht's crew watched it pass overhead and then disappear into the cloud on top of the Mull not far from the lighthouse. I forget whether they heard the crash.
My knowledge of helicopters is limited but I believe is relevant. Some years ago, over several years, I was a passenger flying in helicopters, with two or three other Commissioners of Irish Lights, in order to visit and inspect the lighthouses around the coasts of Ireland from Tory Island in the north to Fastnet in the south. Frequently there were headlands in our path, some cloud covered like the Mull of Kintyre. The first time I saw one of these ahead—
4.59 p.m.
The Chairman of Committees: My Lords, I hope that the noble Lord will forgive me. He clearly has expertise in this matter and a knowledge of the situation. However, I wonder whether that is the issue before your Lordships' House today. If noble Lords will forgive me, perhaps we may take the opportunity of bringing the debate to a conclusion.
It has been a most intriguing debate. I can perhaps tidy up two issues. First, as regards the absence of the Leader of the House at the Liaison Committee meeting, the noble Baroness was at the Constitutional Committee at the time of the first meeting. She felt, therefore, that others should carry on for subsequent meetings. The noble Lord, Lord Strathclyde, will
470
remember that we held these meetings in a great hurry; many other things were taking place at the same time. I simply put the facts before the House. Secondly, it has been suggested by a couple of noble Lords that the question of staffing and costs was involved in the decision of the Liaison Committee. I assure the House that that was never a consideration at any time during the course of our deliberations.
I find myself in considerable difficulty in replying to the debate. Indeed, I do not intend to reply to the debate; it is not my job. Members of the Liaison Committee have set out their position in much the same way as I indicated that they did during the Liaison Committee meetings. We are asked by the noble Lord, Lord Chalfont, to accept perhaps a smaller committee, and to put the issue again before the Liaison Committee. Having listened to the debate today, I think that the chances of getting a different decision from the Liaison Committee at another meeting are zero. It seems to me, therefore, that, as is proper, it is a matter for the House to decide what it wants to do. I leave the matter in your Lordships' hands.
I say just this. The Liaison Committee discussed the whole matter very seriously. Sensible, intelligent people took part in that debate. To overturn a recommendation of a committee of this House is a serious matter. In coming to a decision, I hope that noble Lords will bear in mind all the remarks which have been made today.
Baroness Young: My Lords, I am grateful to the noble Lord for giving way. He said that if the matter went back to the Liaison Committee he had no doubt that it would come to the same conclusion. Do I understand from that remark that the Government would not support the setting up of a Select Committee on the lines that the noble Lord, Lord Chalfont, proposes? It is an important point that the House should know.
The Chairman of Committees: My Lords, I do not speak for the Government. The quickest way to deal with the matter would be for the Motion of the noble Lord, Lord Chalfont, to be decided today.
Baroness Carnegy of Lour: My Lords, before the noble Lord sits down, as a matter of constitutional interest, is it normal for the chairman of a Select Committee not to vote?
The Chairman of Committees: My Lords, I believe that it is. Certainly in these circumstances there was no question of my voting. I did not feel that I had a duty to vote on the matter, particularly since it was such an unusual constitutional matter so far as concerns the House. I thought it better to abstain and to come to the House and give noble Lords a straightforward report of what the Liaison Committee decided.
Lord Marsh: My Lords, one understands that it is not for the noble Lord to answer on behalf of the

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Government. Presumably it would be within the rules of the House for him to allow a member of the Government to interrupt him.
The Chairman of Committees: My Lords, it is entirely within the rules of the House if he or she so wishes. However, if everyone has a free vote here, and a free vote in the Liaison Committee, I am not sure that the Government can bind the other members of the Liaison Committee to vote in a particular way.
Baroness Symons of Vernham Dean: My Lords, it may be of some help if I repeat what I said earlier. Given the proposals he put forward for a more limited remit, and in what I described as a compromise, the Government do not oppose the noble Lord's proposal.
The Chairman of Committees: My Lords, that being the case, the result of any Division on the issue should be clear.
Lord Chalfont: My Lords, that places me in a somewhat difficult position. The noble Lord, Lord Tordoff, accepted my suggestion about a reference back in the spirit in which it was made. I am also old enough to know that when the noble Lord says that there is little likelihood that the Liaison Committee would come to a different conclusion this time from its previous decision he knows what he is talking about. The noble Lord has links with everyone in the House: the usual channels and the leaders of the parties. If he says that that is what will happen, I am forced to the conclusion that that is what might happen. While I might have been prepared to refer the matter back if there had been an undertaking, I see no point in doing so if I shall receive the same answer as previously.
It is not right for me to ask the noble Lord to give any assurances. However, in the light of what the Minister has just said, it seems to me that the Government are not in a position to give any. Despite all that has been said, before deciding whether to withdraw my Motion or press it to a Division, I thank all noble Lords for their contributions and thank those who have not made a contribution for listening so patiently.
Many important points have been raised. I was particularly impressed by the important remarks of the two noble and learned Lords sitting with me on these Benches. The noble Earl, Lord Attlee, raised an extremely important point relating to the two pilots which may not have had sufficient currency in the debate. As there was no voice recorder on this aircraft, no accident data recorder and no survivors, we are being asked by the verdict reached to assume that both pilots came to the decision in concert. There is no currency given to the suggestion that one of them might have said, "Look, mate, I'm going to fly straight into that cloud and to hell with it all", with the other saying, "No, you cannot do that". Who knows? No Air Marshal knows. No one knows. The noble Earl, Lord Attlee, rightly draws attention to that aspect. It underlines the point I have made about the requirement for absolutely no doubt whatsoever.
Lord Strathclyde: My Lords, while the noble Lord makes up his mind what he will do, perhaps I may pose another question to the Government. They abstained in the Liaison Committee. If the noble Lord decides to press his Motion, am I right in thinking that they will be consistent with the decision they took and that while they may well support the noble Lord, Lord Chalfont, no member of the Government will seek to vote against him?
Lord Carter: My Lords, I was present for the vote and did not vote. As the noble Lord, Lord Strathclyde, knows, I made it clear that the Government neither supported nor opposed the proposal for a Select Committee. Equally, I was not a member of the committee so I was not able to vote.
Lord Strathclyde: My Lords, what happened in the Liaison Committee is now history. If the noble Lord, Lord Chalfont, decides to press his amendment, what will be the advice of the noble Baroness, Lady Symons, to her Front Bench? Given that she has just said that the Government are not opposed to the setting up of a Select Committee, I assume that she will tell the Chief Whip that it is her view that Ministers should abstain. I merely wanted confirmation of that. If that is not the case, I should like to know why.
Baroness Symons of Vernham Dean: My Lords, I hope that I have already made the position clear, but if I was not clear enough, perhaps I can be this time. We shall not oppose the terms that the noble Lord, Lord Chalfont, proposed—not the terms on the Order Paper, but the more restricted terms that he spoke to, which I referred to in my opening remarks as his compromise and his amended version of his proposals. I hope that that makes it clear that I am addressing the opening remarks of the noble Lord, Lord Chalfont. In that sense, we shall not oppose him.
Lord Strathclyde: My Lords, I think that the noble Baroness has been helpful. If the noble Lord, Lord Chalfont, moves his current amendment, the Government will vote against it, but if he puts forward his compromise—I am not sure that the whole House understands what that compromise is or how the House could agree it—the noble Baroness will support it. I think that that is the position. Perhaps the noble Lord, Lord Chalfont, can now decide what he is going to do.
Lord Chalfont: My Lords, if I was confused before, I am even more confused now. Perhaps confused is not the right word. I am in a dilemma. I am grateful to the noble Lord, Lord Tordoff, for saying that in certain circumstances he would refer the matter and the report back to the Liaison Committee and consider the appointment of a different kind of Select Committee. However, he also said that he saw no reason why the Liaison Committee should present me with a different solution. I assume that the noble Lord knows what he is talking about. He is the chairman of the Liaison Committee and is in contact with everybody connected with the committee.

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In the course of the debate I have felt that, whatever my own feelings about the issue, the House wants the matter resolved now.
Noble Lords: Hear, hear.
Lord Chalfont: My Lords, I do not think that I could have a clearer endorsement than that.
The Chairman of Committees: My Lords, I should like to add one slight caveat. I hope that the noble Lord is talking about restricted terms of reference in such an inquiry. If that is clear, the matter will move much more swiftly.
Lord Chalfont: My Lords, my amendment makes that clear. I now have a feeling of what the House wants. Although I know that whatever decision I take will be unpopular in some quarters, I feel that I must test the opinion of the House.
5.13 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 132; Not-Contents, 106.

Division No. 1

CONTENTS

Ackner, L.

Dixon-Smith, L.

Acton, L.

Eccles of Moulton, B.

Allenby of Megiddo, V.

Eden of Winton, L.

Anelay of St Johns, B.

Elis-Thomas, L.

Ashcroft, L.

Elliott of Morpeth, L.

Astor, V.

Evans of Parkside, L.

Attlee, E.

Evans of Temple Guiting, L.

Barber of Tewkesbury, L.

Falkland, V.

Beaumont of Whitley, L.

Faulkner of Worcester, L.

Berkeley, L.

Fitt, L.

Biffen, L.

Fookes, B.

Blackburn, Bp.

Freyberg, L.

Blaker, L.

Gardner of Parkes, B.

Blatch, B.

Garel-Jones, L.

Bledisloe, V.

Geddes, L.

Boardman, L.

Gibson of Market Rasen, B.

Bowness, L.

Gilmour of Craigmillar, L.

Brett, L.

Gordon of Strathblane, L.

Brightman, L.

Goschen, V.

Brookeborough, V.

Gray of Contin, L.

Brookman, L.

Hardy of Wath, L.

Brougham and Vaux, L.

Henley, L.

Bruce of Donington, L.

Hodgson of Astley Abbotts, L.

Buscombe, B.

Holderness, L.

Byford, B.

Hooson, L.

Caithness, E.

Howe of Aberavon, L.

Carlisle of Bucklow, L.

Howell of Guildford, L.

Carnegy of Lour, B.

Howie of Troon, L.

Chalfont, L.[Teller]

Hughes of Woodside, L.

Clark of Kempston, L.

Jacobs, L.

Cope of Berkeley, L.

Jenkins of Putney, L.

Courtown, E.

Jopling, L.

Cranborne, V.

Judd, L.

Crickhowell, L.

Laird, L.

Cuckney, L.

Lane, L.

Darcy de Knayth, B.

Lane of Horsell, L.

Davies of Coity, L.

Lincoln, Bp.

474

Lloyd of Berwick, L.

Saltoun of Abernethy, Ly.

MacKenzie of Culkein, L.

Seccombe, B.

Mar, C.

Selborne, E.

Mar and Kellie, E.

Sharples, B.

Marlesford, L.

Shore of Stepney, L.

Marsh, L.

Shutt of Greetland, L.

Mayhew of Twysden, L.

Simon, V.

Miller of Hendon, B.

Skelmersdale, L.

Monson, L.

Slim, V.

Morris of Manchester, L.

Stoddart of Swindon, L.

Mowbray and Stourton, L.

Stone of Blackheath, L.

Murton of Lindisfarne, L.

Strange, B.

Noakes, B.

Strathclyde, L.

Northesk, E.

Thatcher, B.

O'Cathain, B.

Thomas of Walliswood, B.

Oppenheim-Barnes, B.

Trefgarne, L.

Orme, L.

Trumpington, B.

Park of Monmouth, B.

Turnberg, L.

Pearson of Rannoch, L.

Turner of Camden, B.

Peterborough, Bp.

Vivian, L.

Peyton of Yeovil, L.

Waddington, L.

Plumb, L.

Warnock, B.

Prior, L.

Weatherill, L.

Puttnam, L.

Wilberforce, L.

Rawlings, B.

Wilcox, B.

Renton, L.

Williams of Elvel, L.

Rix, L.

Wilson of Tillyorn, L.

Roll of Ipsden, L.

Wright of Richmond, L.

Ryder of Wensum, L.

Young, B. [Teller]

NOT-CONTENTS

Addington, L.

Hayman, B.

Ahmed, L.

Hilton of Eggardon, B.

Alli, L.

Hogg of Cumbernauld, L.

Amos, B.

Hollisof Heigham, B.

Archer of Sand well, L.

Howells of St. Davids, B.

Avebury, L.

Hunt of Chesterton, L.

Bach, L.

Hunt of Kings Heath, L.

Barnett, L.

Irvine of Lairg, L. (Lord Chancellor)

Bassam of Brighton, L.

Blackstone, B.

Islwyn, L.

Blease, L.

Jay of Paddington, B. (Lord Privy Seal)

Bradshaw, L.

Brennan, L.

King of West Bromwich, L.

Brooke of Alverthorpe, L.

Lea of Crondall, L.

Brooks of Tremorfa, L.

Lester of Herne Hill, L.

Burlison, L.

Lipsey, L.

Carter, L.

Lockwood, B.

Clarke of Hampstead, L.

Lofthouse of Pontefract, L.

Clinton-Davis, L.

Macdonald of Tradeston, L.

Cohen of Pimlico, B.

Mclntosh of Haringey, L.

Colville of Culross, V. [Teller]

Mackenzie of Framwellgate, L.

Cooke of Islandreagh, L.

Mackie of Benshie, L.

Craig of Radley, L.

McNally, L.

Crawley, B.

Mallalieu, B.

David, B.

Mason of Barnsley, L.

Davies of Oldham, L.

Massey of Darwen, B.

Dean of Thornton-le-Fylde, B.

Merlyn-Rees, L.

Desai, L.

Miller of Chilthorne Domer, B.

Dholakia, L.

Milner of Leeds, L.

Dubs, L.

Mitchell, L.

Falconer of Thoroton, L.

Molloy, L.

Fyfe of Fairfield, L.

Oakeshott of Seagrove Bay, L.

Gale, B.

Patel of Blackburn, L.

Gilbert, L.

Paul, L.

Goodhart, L.

Ponsonby of Shulbrede, L.

Goudie, B.

Peston, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Razzall, L.

Gregson, L.

Redesdale, L.

Grenfell, L.

Rendell of Babergh, B.

Harris of Haringey, L.

Richard, L.

Harris of Richmond, B.

Rodgers of Quarry Bank, L.

Harrison, L.

Rogers of Riverside, L.

Haskel, L.

Roper, L.

475

Sainsbury of Turville, L.

Uddin, B.

Scotland of Asthal, B.

Walmsley, B.

Scott of Needham Market, B.

Warwick of Undercliffe, B

Serota, B.

Whitaker, B.

Strabolgi, L.

Whitty, L.

Taylor of Blackburn, L.

Wigoder, L. [Teller]

Tenby, V.

Wilkins, B.

Thomas of Gresford, L.

Williams of Crosby, B.

Thomson of Monifieth, L.

Williams of Mostyn, L.

Tomlinson, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
Motion, as amended, agreed to.
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, does the noble Lord, Lord Rodgers of Quarry Bank, wish to move his Motion.
Lord Rodgers of Quarry Bank: No, my Lords.

Criminal Justice and Police Bill
5.24 p.m.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Scrota) in the Chair.]
Clause 1 [Offences leading to penalties on the spot]:
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 1:
Page 2, leave out lines 18 to 32.
The noble Lord said: This amendment falls within the group which deals with the question of penalties imposed by a bobby on the beat in exchange for cash as an alternative to taking the offence to a court.
This is a very important Bill. I am sure that all Members of the Committee will support the parts of it which will effectively—by that, I mean both economically in terms of police time and fairly—reduce public "yobbism", which, by all accounts, is currently a considerable drawback to life in these islands.
While we are doing all that we can, as, I hope, we usually do, to give a fair wind to the measures which we consider to be in the public interest, we on these Benches are aware that the opportunity to debate this Bill is perhaps the only constructive outcome of the foot and mouth disease. The Bill would not have seen the light of day had the election been called as intended.
I confess that we have a certain misgiving about seeking to press through a Bill of this size and consequence in the time available to it. Although we shall be co-operative, I say on behalf of my noble friend Lord McNally that we retain an open mind as
476
to whether it is right that all the measures, some of them of huge importance, should be allowed to pass in the time available.
In proceeding with this group of amendments, our real concern with regard to this innovation is that it may be another bright idea which bites the dust when exposed to the harsh operational realities of policing. As we sit in this gilded Chamber, it is easy to underestimate how intensely difficult it is for the police to do their work on the beat on a Saturday night in a lively town centre where a great deal is going on.
First, behind these amendments lies a concern about the steady backdoor creation, if I may express it that way, of a new hybrid category of offences which are part criminal and part civil. They are part criminal in that the penalties and the nature of those penalties are commonly understood as being associated with criminality. They are also part criminal in the sense that they are pursued through magistrates' courts and by the police. Yet, they are part civil in that the measure concerned requires not the normal standard of proof beyond reasonable doubt but proof on the civil test. That is true of the proposals in Clause 1.
Yet, of course, there has been no debate about the development of this hybrid category. We had it in the Football (Offences and Disorder) Bill and I believe that it may have arisen first in the anti-social behaviour orders under the Protection from Harassment Act. However, we, at least, on these Benches are not at all happy with this hybrid category, and that is at the root of our concerns.
Secondly, we put forward these amendments out of a sense of the practicalities of policing. In the words of the Law Society—the committee of the Law Society that examined the Bill is comprised of extremely experienced, hard-nosed practitioners—is it right that a police constable should make a judgment, often under pressure, on a series of different offences, each of which will have different elements that must be proved? Such a situation is clearly amenable to serious misjudgment or abuse.
If cases in relation to which penalties are sought to be imposed proceed to court, come before the Crown Prosection Service and have to comply with the normal criminal test of being beyond reasonable doubt, there will be a considerable fallout in the number of such cases that are taken forward. It does not take a magician to realise that having two tests—a lower and a higher test—will involve a considerable fallout in the number of cases that are pushed to court. It will soon be known on the streets that it is not a bad idea to refuse to pay a fixed penalty because there is a much better chance of the whole case being chucked out if the CPS gets its teeth into the matter. We need to address that problem, and I hope that these constructive amendments would do so.
We are trying to knock out from the cases that are scheduled as being susceptible to on-the-spot fines those that are complicated, whether as to evidence or as to law. Complexity as to law involves complexity with regard to the necessary element of intent that goes with some of the scheduled offences that my

477
amendment would strike out. I refer, for example, to threatening, abusive or insulting words or disorderly behaviour within hearing or sight, and so on. Much law is involved in a Section 5 Public Order Act prosecution. We believe that it is too much to ask a policeman on the beat on the night in question to form an objective and cool view of a critical situation.
We also believe that when cases are pressed forward inappropriately, that will be the fault not of the relevant policeman but of the circumstances and complexities that are involved. Far from helping the process, that would create much extra paperwork and frustration and it would in the end be counterproductive.
Many young men—the provisions will mainly involve young men—will no doubt pay up on the relevant occasion and be done. Many of those who will be inclined to do so are, I suspect—others tell me that this will be so—likely to be the sort of people from whom it would be extremely difficult to extract the fine that they had agreed to pay. They will then be pitched into an interminable bureaucratic maze at the end of which, in the extreme case of default, young men will go to our already overcrowded prisons. I see that the Minister is—how should I put it? —facially gesticulating. I ask him to ponder carefully whether our attempt to simplify matters would actually complicate them. The last thing in the world that we want is to send yet more young, feckless men to our prisons because of their failure to pay fines.
Finally, I turn to the concern that many outside organisations, such as Liberty and the Law Society, have expressed; namely, that the provision will tend, in too many cases, to allow the police to pick on those who are already socially maladept or socially vulnerable. We all know that such people can become socially obnoxious with drink inside them. It is all too likely that the unemployed, the illiterate and the excluded will be—how should I put this?—the most frequent objects of police activity under Clause 1. There will be a temptation for hard-pressed policemen to pick off what they might regard as the easier targets.
The long and the short of my argument is that we have severe doubts about the practicality of the proposal but that we are perfectly content to allow the Government to give it a go. However, in doing so, we suggest that we should simplify the list of offences. That would prevent us from running into the complications that I have endeavoured to explain. I beg to move.
5.30 p.m.
The Deputy Chairman of Committees (Baroness Serota): I point out to the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 2 and 3.
Baroness Buscombe: I rise to speak to Amendments Nos. 2 to 6 and 36. I also want to respond briefly to the comments of the noble Lord, Lord Phillips, on Amendment No. 1.
478
We on these Benches cannot agree that all of the listed offences should be removed. We have real concerns about the list; hence our amendments. However, we are supportive of there being in the Bill a list that sets the pace and parameters of the legislation. Indeed, we want much more detail in the Bill. I shall return to that point throughout our debate.
The noble Lord, Lord Phillips, said that the Liberal Democrats wish to retain an open mind about the Bill's prospects. We echo that sentiment. We, too, have concerns about the new hybrid category; hence our Amendment No. 7, which relates specifically to the two tests and the burden of proof.
I shall deal first with our Amendments Nos. 2 and 3, in which we seek to exclude Section 1(1) of the Criminal Damage Act 1971, which concerns the destruction of or damage to property without lawful excuse, and Section 5 of the Public Order Act 1986, which concerns threatening, abusive or insulting words, or disorderly behaviour within hearing of or in sight of a person likely to be caused harassment, alarm or distress. While we are in favour of the introduction of on-the-spot penalty fines in principle for certain clear-cut, minor offences—it is now clear to us that they will not attract a criminal record and we understand that there will be no national register or database that will record those offences—we do not believe that criminal damage involves a proper use of that vehicle.
We are told that the Bill is about fighting crime and, in particular, the so-called yob culture which, sadly, is on the increase and tends to compromise all of us in one way or another in our daily lives. We believe that it should not allow thugs to shrug off their sometimes despicable acts by the payment of a fine. I repeat what I said on Second Reading; namely, that this should not be a case of crime pays so long as one pays up.
I read with interest the Government's response to our concerns in Committee in another place. I am not persuaded that the Government would achieve their stated aim without our amendments. With reference to criminal damage, I quote the Minister of State, Mr Charles Clarke. He said:
"We intend the Bill to catch behaviour at the less serious end of the spectrum where the damage caused is the result of disorderly or antisocial behaviour. We do not intend it to apply where the serious criminal sets out deliberately to destroy or severely damage the property of another person".—[Official Report, Commons, Standing Committee F, 6/2/01: col. 26.]
Where in the Bill is that spelt out? Surely that is what criminal damage is. How can a police officer make a balanced judgment on the spur of the moment? As the noble Lord, Lord Phillips, said, difficult circumstances are often involved, which makes it difficult to establish whether the offence caused is—hitherto, it has been—an arrestable offence. Do the Minister of State's words mean that criminal damage attracting an on-the-spot penalty merely involves damage that is caused unintentionally or, if it is intentional, that it involves only partly destroyed or lightly destroyed damaged property? Do threatening, abusive or insulting words or disorderly behaviour also involve an arrestable offence? There is a plethora of circumstances in which

479
that offence can occur, often with serious consequences. It is easy to imagine situations in which the imposition of an on-the-spot penalty fine would be likely to increase confrontation and the seriousness of the offence.
Part of the difficulty rests with the fact that such offences are not clear-cut. Parking on a double yellow line is clear-cut: if one is caught, that is a fair cop because the evidence is there for all to see. The degree to which someone can be abusive is far from being clear-cut. Further, the measure of actual harm to property will require the police officer to make a tough, subjective, on-the-spot judgment about whether an on-the-spot fine is proper in all the circumstances or whether the thug in question should be arrested.
Another difficulty relates to deterrence. I firmly believe that there is precious little point in putting anything on the statute book unless it is going to act as a deterrent. It is our view that on-the-spot penalty fines will only act as a deterrent for minor, clear-cut offences. It is, we believe, wrong to use that vehicle for offences such as criminal damage which, in the words of Edward Crew, Chief Constable of the West Midlands Police, speaking on behalf of the Association of Chief Police Officers, are "triable either way", and can have an enormous impact upon victims' lives even in the most minor instances.
I turn to Amendment No. 4. We made it clear at Second Reading that we believed that there should be an offence for urination or defecation in a public place. It would be clear-cut, tangible and, as such, ideally suited to the use of the on-the-spot penalty fine. As I said at Second Reading, Westminster City Council informs us that street fouling is now perhaps the single aspect of anti-social behaviour that most undermines the quality of life for those who live and work in parts of the city. There is little doubt that where patterns of behaviour manifest themselves and develop in one of our great cities, so it follows over time—usually a brief amount of time—in others. Why not make this an offence now to act as a deterrent, a warning, that we will not tolerate this foul behaviour in our public places?
I note that in another place the Liberal Democrat Member for Southwark North and Bermondsey, Mr Simon Hughes MP, suggested,
"Every male aged over 18 … admitted to having done it when caught short … Women do not have the same problem because they have much better control".—[Official Report, Commons, Standing Committee F, 6/2/01: col. 38.]
Control has nothing to do with it; civilised behaviour does. I hope to receive such a response from the Minister.
The Parliamentary Secretary at the Lord Chancellor's Department argued in another place, at col. 36, that,
"it is not currently an offence under any law that applies throughout England and Wales, although it is an offence under certain local authority byelaws. It would be administratively complex to devise a national fixed penalty notice scheme that would apply to a local authority byelaw that applies in some parts of the country but not in others".
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With respect, that is not a valid argument. This Bill introduces a new offence under Clause 1; that of consumption of alcohol in designated public places. There is therefore absolutely no logical reason why this Bill should not also be a vehicle for introducing the offence of urination or defecation in a public place.
We suggest a further new offence under Amendment No. 5, that of unlawful street trading. This amendment presents a further opportunity to deal with an entrenched wrong which compromises all those who work hard and stick to the rules of fair trading. Again, it is clear-cut and tangible and, at the moment, it is too easy to flout the rules. More than that, as said by Edward Crew, on behalf of the Association of Chief Police Officers, unlawful street trading can attract large audiences in busy market areas, providing an ideal environment for pick-pocketing and street robberies.
The honourable Member for Norwich South, the Minister of State, Mr Charles Clarke, MP, said in another place at col. 29:
"We felt that penalty notices for such offences, which involve financial recoupment, might result in the perpetrator seeking to recoup the cost of the penalty through increased activity elsewhere".
With respect to the Minister of State, it is hard to think of a more defeatist approach. What is the point of the "Let us be tough on crime and the causes of crime" mantra if that is the kind of argument engaged by the Government to pass up the opportunity to combat an albeit relatively minor offence and thereby one suited to the on-the-spot penalty offence?
Amendment No. 6 has a simpler purpose. It would limit the degree of severity of offences that could be added to the list of offences attracting on-the-spot fines under Clause 1 of the Bill. Without that qualification, the Bill is unclear in its intent and therefore uncertain and while the current Secretary of State may be clear in his mind as to the parameters under which the clause should operate, a future Secretary of State may have an entirely different view as to the limits within which he or she may use this vehicle to tackle anti-social behaviour.
5.45 p.m.
Lord Beaumont of Whitley: I rise partly to support Amendment No. 1, which is very sensible, but more particularly to oppose Amendments Nos. 4, 5 and 36.
I could not believe my eyes when I saw Amendment No. 4 on the Marshalled List. I made up my mind that I should speak against it if I had the chance. It seems to me that Amendments Nos. 4, 5 and 36 are trying to make offences of acts which should not be offences except in certain, limited circumstances. They certainly should not be included in the Bill as at present drafted. If the Committee felt we should accept these amendments, at least we could take out urination at a later stage.

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Today, between the turnstiles in Westminster Underground Station and the entrance to your Lordships' House, someone was urinating against the wall. He looked apologetic and had clearly been caught short—I could tell that if only by the amount of liquid proceeding down the wall and across the pavement. People are caught short. Urination and defecation are natural processes and part of the human condition. They should not be included in this kind of legislation and I hope that Members of the Committee will not what is proposed.
Lord Windlesham: For reasons which I explained at Second Reading, I am opposed to the policy of on-the-spot penalties for disorderly behaviour in principle. I believe that they originated from some ill thought out and populist assumptions on the part of the Government and that Home Office officials then had the difficult task of trying to turn them into legislative form. The draftsman in particular must have had an exceptionally arduous task.
The objections are of principle and practicality—the two come together—and permeate this part of the Bill. The amendments of my noble friend Lady Buscombe, who spoke for the Opposition, and of the Liberal Democrats to an extent would ameliorate some of those objections by varying the list of offences in the existing statutes which would attract the fixed penalty. But it is not so much which offences should attract the fixed penalty; it is the concept of the fixed penalty itself which is objectionable.
The Government have recently circulated a document entitled Guidance to the Police on Penalty Notices for Disorder, made available by the Minister of State in another place, Mr Clarke. I have no doubt that the Parliamentary Under-Secretary is familiar with it. I stress that it is no more than a draft document. It states clearly enough that the aims include the following: trying to deal more effectively with anti-social and disorderly public offending; to provide a swift response that has a deterrent effect, and to save police and court time.
I am fairly confident that none of those three objectives will be secured. Let us take the last of the three, which is often cited, and valuable if achieved; that is, to save police and court time. The Justices' Chief Executive of the Inner London Magistrates' Courts Service stated that it is probable that the proposal might achieve exactly the opposite. That is on behalf of magistrates who sit in the courts, day in day out, trying offenders charged with summary offences. The argument is that it appears to overlook the effect of the Government's own Narey initiative. The justices' chief executive states that since the introduction of the Narey reforms, anyone charged is now brought before a court within a day or two. Under the proposed system the issue of the notice may indeed be swift, but payment will be delayed for at least a statutory period and in many if not most cases will not be made at all, at least without further court appearances either in the form of a summons for the offence or a means warrant for non-payment. The
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issue of compensation is not addressed. That is one example of how practical experience in the courts runs against the easy assumption that in some way this initiative will save the time of the courts and the police as well as saving money.
It seems to me that claims are being made for a novel proposal which are not based on experience. Ministers are now trying to give effect to what was a policy driven by presentation, to respond to a groundswell of public opinion and dissatisfaction with extremely offensive and disagreeable behaviour. We can all share in and respond to that feeling, which is understandable and reasonable. However, the response has to accord with the rule of law. We shall return to that later in Committee. The noble Lord, Lord Phillips of Sudbury, referred to some of those aspects. However, we must also consider the practicalities. I suggest that we address our attention to that at this stage in Committee.
Lord Renton: I, too, have doubts about the whole principle of on-the-spot fines. However, we must realise that the proposal will save public money because it will save the time of the courts. In some other countries—I cannot give details—the system has prevailed for some years. However, we must be careful in our choice of offences.
I am glad that my noble friends tabled Amendments Nos. 2 and 3. Offences such as destruction of or damage to property without lawful excuse are not easy matters for a police officer to decide on the spot. They will require careful inquiry, which should be done by the courts. The same comments apply to Amendment No. 3, which seeks to leave out the provision on,
"Threatening, abusive or insulting words or disorderly behaviour".
All those are matters of opinion for the courts.
Having made those general remarks, I wish to support the amendments tabled by my noble friends.
Lord Thomas of Gresford: The offences set out in Clause 1(1) of the Bill are already offences, which goes without saying, save for the new offence under Section 12 of the Licensing Act. If one looks at Section 12, one observes that that offence is to be arrestable in that a constable may arrest a person who fails without reasonable excuse to comply with the constable's requirement to cease drinking in a public place. There is already in existence, subject to the rule of law and control of the courts, a way of dealing with each and every one of the offences set out in this provision.
The Bill seeks to reduce the burden of proof, remove the safeguards of the court process and impose penalties on an individual who is thought to be committing or to have committed those offences simply on a constable's belief. That is a dangerous principle to bring into the criminal law of this country. All the safeguards which surround the conviction of offences are absent in a situation such as that.

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Some of the offences which are set out are of a minor nature: being drunk, throwing fireworks, trespassing on the railway, and so forth. For the purposes to which the noble Lord, Lord Renton referred—that is, the saving of public money by saving court time—the provision of penalty notices might be justifiable. However, in the more serious offences set out in lines 18 to 32—the subject of Amendment No. 1 tabled in my name and that of my noble friends—one sees that much more complex offences are under consideration. In particular, wasting police time or giving a false report are not matters which can be immediately decided by a policeman in the street. They imply a degree of investigation before a policeman can come to a particular belief. Destruction of, or damage to, property without lawful excuse also involves a value judgment by a police officer if an excuse is put forward by an individual. I omit reference to the Tecommunications Act, although it would be difficult to arrest a person simply because he was standing in a telephone booth and making a phone call without having some means of knowing what was being said and what was being received on the other end of the telephone. That also requires a certain degree of investigation, and is not immediately obvious to and observable by a police officer.
The provision in Section 5 of the Public Order Act regarding threatening, abusive or insulting words or disorderly behaviour throws up all sorts of problems. As I recall, Section 5 requires the words or disorderly behaviour to occur in a public place. There is certainly authority for that. I was involved in a case concerning disorderly behaviour in a front garden of a property abutting a road. The issue was whether that was a public place. One can envisage a situation where words are exchanged over a hedge and a policeman has to decide whether that is a public place and whether the person standing in the garden can be arrested and given a penalty notice in such circumstances.
As regards the person who is likely to be caused harassment, alarm and distress, there is authority as to whether that person merely has to be the policeman. Therefore, is swearing at a policeman an arrestable offence? Can it give rise to a penalty of this nature? Many issues can arise around such a charge.
If the burden of proof is to be reduced in the way the provisions suggest, so that it is the belief of the constable which matters and not proof beyond reasonable doubt, surely such a penalty notice should be confined to offences which are simple and observable and can be dealt with instantly without further investigation by the police officer. The provision goes too far and I support my noble friend in this amendment.
6 p.m.
Lord Brennan: The fact that drink is a major component in the commission of many minor offences hardly needs repeating. The first group of amendments with which we are concerned tonight again gives an opportunity to Members on all Benches to question
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the philosophy of the Bill. I state the problem before I consider questioning the philosophy. The problem is major.
On Second Reading, I had occasion to recount to the House that in Manchester over a weekend—that is the accumulation of three nights—half a million young people come into the city centre from the outlying conurbation and stay up drinking most of the night. I invited the House to note that that was a social phenomenon that we had not previously had to address.
It is not correct to assume that offences relating to drink and the minor, as I am sure we shall be told, consequential offences of threatening behaviour and so on are the product of people who are emotionally or educationally deprived and cannot manage their own affairs. Many irritating minor offences are committed by people with money and good jobs who on occasion display a lack of common sense which they would remember to exercise if they realised that the following day they would have a fixed penalty to meet.
The problem is new. We should galvanise our thinking—even the most dedicated proponents of a traditional criminal justice system—to meet the problem. Fixed penalty notices are worth trying but with two important provisos. One is the scope of the offences that they should embrace. It seems to me that much of the concern expressed on the Benches opposite is directed at Clause 6. That establishes how the Secretary of State will give guidance as to the proper implementation of the power by police officers around the country. I shall return to that matter when the clause comes up for discussion.
Surely that guidance will be directed principally at telling police officers to discriminate between a minor offence, readily observable and easily prosecutable under a fixed penalty, as against the more serious matters which some Members of the Committee put forward as examples. That is the first point.
The second point is more important. What will be the system effectively to enforce the collection of fixed penalties? Nothing will be more likely to undermine the effectiveness of the new system if those involved think they can get away with it anyway. It is a pretty effective system which these days applies to parking offences. We should introduce the same ethos with this new type of penalty for minor offences, not in order to flood the system of fixed penalties but in a genuine attempt, even for offences which may have wide degrees of culpability, of deterring young people with money not to commit the kind of behaviour that will attract fixed penalties. I oppose the amendment.
Lord Bassam of Brighton: We have had a wide-ranging discussion on this group of amendments. It has been said that, on the one hand, we have included too many offences and, on the other hand, that we ought to be adding to them. There is also a degree of consensus about one or two of the offences which might be covered by fixed penalty notices. There has also been further discussion of issues of principle and a picking away at some of the detail.

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However, there is a consensus in the Committee that this matter relates to an important issue; that is, appalling and offensive behaviour, often described as part of the yob culture, which takes place in our towns, cities and elsewhere from time to time, particularly at the weekend and where drink is at the root of the matter.
I do not claim that we have a monopoly of wisdom in the Bill, but we are trying to develop policies to deal with the developing and expanding phenomenon. We are trying to come forward with yet another approach but it is certainly not the only answer or solution. Therefore, my comments should be considered within that framework.
The criminal damage offence included in Clause 1 is that under Section 1(1) of the Criminal Damage Act 1971 and is the destruction of and/or damage to property without lawful excuse. We have deliberately not included the more serious offence under Section 1(2) where life is endangered, either intentionally or recklessly, as that would clearly be unsuited to the fixed penalty notice scheme. The behaviour that the Bill intends to catch is that at the less serious end of the spectrum where the damage caused is the result of disorderly or, as is more broadly described, anti-social behaviour. We do not intend it to apply where the serious criminal sets out with the intention of deliberately destroying or seriously damaging the property of another person.
I appreciate that the offending covered by Section 1(1) encompasses a range of behaviour and we shall be issuing guidance to the police to make clear the type of offending with which the scheme has been designed to deal. In particular, we shall draw attention to the need to consider carefully before issuing a notice whether, if the case went to court, a compensation order might be made in favour of an individual whose property had been damaged. In such a case, it would understandably be preferable for the case to be dealt with by other means.
The offending behaviour covered by Section 5 of the Public Order Act includes the use of threatening, abusive or insulting words or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress by it. That again seems central to the type of behaviour to which we would like the new scheme to apply. Indeed, the description of the offence included the words "disorderly behaviour". It would not seem logical intentionally to omit it from the list before we had the opportunity to see how it worked in practice.
I turn to the offences of wasting police time and using the telecommunication system to send false or annoying messages.
Lord Cope of Berkeley: Before the Minister leaves the question of criminal damage, it is difficult to expect a policeman to decide on the spot whether any compensation is liable to be paid in a case of criminal damage. Normally, there is a possibility of compensation in a case of criminal damage; if so, an
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on-the-spot penalty is not to be used. Therefore, this arises only in a case of extremely minor criminal damage where there is no possibility of compensation. That is the kind of the difficulty in which a police constable will be placed in deciding whether to issue a penalty notice. It is very difficult to judge what criminal damage could not possibly lead to any compensation.
Lord Bassam of Brighton: I accept what the noble Lord says. However, I made the point at the outset that we wish to focus attention on the lower order of this offence, and that will be made clear in the guidance. We have also made it clear in the draft guidance that we intend to issue to the police that we have included these offences to catch the making of false 999 calls. We regard that type of offending as appropriate for the new penalty notice system. I note that noble Lords opposite have not proposed the omission of the similar offence of knowingly giving a false alarm to the fire brigade. If we accepted this amendment, we would be left with an inconsistency in this respect. One could receive a penalty notice for falsely calling the fire brigade but not an ambulance or the police. In any case, we believe that all these offences should be included in the scheme.
Lord Thomas of Gresford: Does the Minister not realise that the penalty notice minimises the offence; it does not maximise it so that it is a more serious offence to make false calls to the police and the ambulance service which will be dealt with under the existing legislation? The whole point is that to give a penalty notice to someone is the soft option. The Government are supposed to be tough on crime but they give a soft option in many of these offences.
6.15 p.m.
Lord Bassam of Brighton: I do not believe that it is a soft option; it could well be an effective option. As I argued earlier, we need to recognise that there are new ways to tackle some of the problems that we confront in dealing with yobbish behaviour. That is what we seek to do, and I thought that in measure that principle had been accepted. I hope that Members of the Committee are reasonably reassured by what I have said. If they still believe that we can leave out these offences, they should consider the effect of so doing. Without these offences we would have a new scheme to deal with offences of disorder and anti-social behaviour, but with the new disposal unavailable for much of the relevant offending behaviour. We shall certainly monitor the scheme closely to see how it works in relation to these offences, but we want to start with them included.
I deal next with Amendments Nos. 4 and 36 which deal with urinating and defecating in public. First, the criminal justice system is a limited and scarce resource and should be employed only where there are particular and significant public policy reasons for doing so. Accordingly, and perhaps most obviously, new offences should be resisted where the conduct in question is already defined as criminal. Urinating or

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defecating in public is currently an offence under by-laws set out in the Home Office model by-laws set No. 8: Bylaws for Good Rule and Government. By-law No. 24 of the set reads:
"No person shall urinate or defecate in any public place".
An offender under the by-law is liable to a fine not exceeding level 2 (£500). The offence can also often be dealt with under other legislation, such as that governing drunk and disorderly behaviour or offences under Section 5 of the Public Order Act.
Secondly, criminal offences should be created only where there is a clear public policy need. To the extent that urination and defecation is a social problem, it must by its very nature be one that is subject to great variation in degree on a geographical basis. In certain urban or high density residential areas a problem may exist which is entirely absent in rural areas. I am tempted to suggest that in the middle of Ashdown Forest, Dartmoor, or the North Yorkshire moors, which one could regard as public places, somebody who must relieve himself—
Baroness Buscombe: With great respect to the Minister, surely on the whole the yob culture occurs only in urban areas. One does not have much yob culture in the Forest of Dean.
Lord Bassam of Brighton: The point I seek to make is that the nature of the offence that the noble Baroness seeks to add to the list is a catch-all and the by-law is rather more focused. The point just made by the noble Baroness is a relevant one, but I believe that those who live in small towns and villages that are visited by yob culture would see that behaviour as a threat to their peace of mind and the peaceful nature of their neighbourhood.
A new offence should be created only where it is a proportionate and commensurate response to the social problem identified. In many public places, particularly in the wilder and less populated parts of the country, a person can urinate or defecate without any risk of causing either offence or a public health risk. It seems unreasonable to criminalise conduct of that kind in an environment where there may be no provision of public toilets and no alternative to those upon whom nature calls. For these reasons, adoptive law such as by-laws is an appropriate response to such problems. A by-law is made locally and can be reasonably expected to meet local conditions, such that the provision of public toilets will be taken into account when the by-law is made. The local authority takes the decision in those circumstances whether to prosecute an offender. I believe that I have said enough to explain why the Government cannot accept that new proposition.
I have some sympathy for the Member for North Southwark and Bermondsey who said of this proposed offence in another place:
"Every male aged over 18, including me, admitted to having done it when caught short … We must be cautious about making it a criminal offence because anyone could be caught. The answer is more accessible public toilets, not more offences".—[Official Report, Commons. Standing Committee F, 6/2/01: col. 38.]
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We cannot have a generally applicable offence which criminalises almost everyone at some point in their lives. I do not believe that that is a proper use of the law, and I do not think that noble Lords opposite would so regard it. For those reasons, we cannot accept those amendments.
Viscount Goschen: The Minister relies on the argument that "public place" covers a wide variety of situations: on the one hand, a forest and on the other hand, the urban situation. I note that in Clause 13 in Chapter 2, in connection with alcohol consumption in designated public places, the Bill provides a mechanism to identify public places from which drinking may be banned. For example, it gives the local authority the ability to designate an area as a designated public place. Would not something on the lines of the mechanism provided in Clause 13 remove the noble Lord's objection with regard to what would clearly be anti-social behaviour which we would all recognise when we saw it?
Lord Bassam of Brighton: It might, but, as I believe I argued earlier, we believe that the issues covered by this particular amendment are dealt with in law in any event, and also by adoptive by-laws. We argue that, even if there is a genuine problem—I fully accept that there may well be one in Westminster, Kensington and Chelsea, or perhaps even parts of Brighton and Hove—this is not the most appropriate way to deal with it.
I turn to street trading offences. The Government believe that it is not appropriate to bring offences with a financial motive of any kind into the scope of the penalty notice scheme. Unlawful street trading falls into that general category, and there would be a number of potential difficulties involved. Moreover, it is hardly an offence of disorder. There is a danger that a penalty notice awarded on the street for this kind of offence would have little more effect on the perpetrator than simply being moved on. He might simply seek to recoup the cost of the penalty through increased activity elsewhere. Further, the issuing of a penalty notice for this offence, whether on the street or at a police station, would mean that no consideration could be given to seizure by the police and eventual forfeiture of items used in the commission of the offence, which is a particularly important tool to deal with some examples of this type of activity. We believe that penalty notices are unsuitable for this type of crime and are, therefore, unable to accept the amendment.
Finally, Amendment No. 6 seeks to limit the power of the Secretary of State in his exercise of the power in Clause 1 to add new offences to the list of penalty offences. The proposed amendment would allow the addition by order of an offence only if the maximum penalty for it did not exceed level 3, which is £1,000 or three months in prison or both. The list of penalty offences in Clause 1 already includes four offences which exceed the maximum penalty. I am aware that noble Lords opposite seek to remove three of these, but this still leaves the offence of throwing fireworks in

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a thoroughfare, which carries a maximum fine not exceeding level 5 (£5,000), to which no one appears to object as a penalty offence. But it may be that it is only offences added by order that concern noble Lords opposite. If so, I give them the assurance that the new system is designed to deal with minor examples of disorder offences only, even if the penalty offence listed covers a broad spectrum of behaviour. We have made that clear on many occasions.
Moreover, the Government accepted an amendment in another place to make this order-making power subject to the affirmative resolution procedure. So there is no danger of new offences being added without Parliament's agreement. While I appreciate the motivation behind the amendment, I am certain that we have put in place enough and sufficient safeguards to dispense with what might otherwise be considered an unnecessary restriction on the power of the Secretary of State.
The noble Lord, Lord Thomas of Gresford, made a point about the reduction of the burden of proof. It is worth saying to the noble Lord that there is in the legislation an absolute right to ask for a trial. That point was reflected in the Joint Committee on Human Rights. It said that,
"we consider the right to request trial is adequately protected,"—
and this is the noble Lord's point—
"bearing in mind that a suspect who has a reasonable excuse for failing either to pay the penalty or elect for trial within 21 days can apply to a magistrates' court to set aside any line in the interests of justice".
The other point made by the noble Lord, Lord Thomas of Gresford, related to penalty notices being suitable only in clear cases. On-the-spot penalties should not be issued where further investigation is required. We are quite clear on that point. We will ensure it is covered in the guidance.
The noble Lord, Lord Cope, said that criminal damage needs to be looked at in some detail because it could be that it is more serious than perhaps is immediately apparent. The point is that careful consultation with the complainant and a careful view of the extent of any damage needs to be made prior to a police officer effecting an arrest.
I hope I have covered most of the comments made. This is a significant amendment because it deals in part with an important point of principle and in part with points and matters of detail.
Lord Thomas of Gresford: I am most grateful to the Minister for accepting my intervention on whether or not this is a minimising of the effect of criminal offences. The mechanism of the Bill envisages that some of these notices should be issued in the police station. Under Clause 2 of the Bill they have to be issued by an authorised officer. What is envisaged is that—for example—someone who is suspected of having committed an offence under Section 5 of the Public Order Act could be arrested, taken to a police station and, instead of being charged and dealt with
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through the ordinary processes of the criminal justice system, given a penalty notice. That is why I used the word a "soft" option.
The provision would enable people who might otherwise have found themselves in court facing the possibility of larger sentences, even imprisonment under Section 5, being given the option of a penalty notice which would save the police an enormous amount of trouble in putting a file together and going to the CPS. The danger of the provision is that penalty notices will be issued where prosecutions would in the past have been carried out.
Lord Renton: The noble Lord, Lord Thomas of Gresford, has made some very important points. One matter which arises out of them worries me. Have the Government envisaged the possibility that a police officer when trying to get the accused person to pay this lower penalty has the opportunity of saying to the accused person, "If you don't pay this, you will be brought to trial and it will cost you much more"? That is a factor we must bear in mind. There will be a great temptation for the police to say that to criminals.
Baroness Buscombe: I speak in response to a number of points made by the Minister. It is very important to repeat the words of my noble friends Lord Windlesham and Lord Renton: first, it is the concept of the fixed penalty which is of real concern; and, secondly, can it actually work in practice?
With regard to criminal damage, while the Minister has made it clear that the Government have been careful not to include the more serious offences—for example, endangering life—the parameters are not actually set out on the face of the Bill. We feel quite strongly about that matter. The Government are saying that they want to have the opportunity, with the benefit of the Bill, to see how the provision works in practice. But surely, with something so new and different—this new hybrid vehicle, as I keep calling it—it would make sense to have a pilot scheme of some kind to see if it works. As we go through our amendments we shall be saying again and again that in practice it is very hard to see how the provision will work. It will be very impractical.
With regard to Amendments Nos. 4 and 36, I am disappointed obviously with what the Minister said. Yes, there are by-laws in place, but the Minister knows that they are much more difficult to invoke. The noble Lord is concerned that public policy should take precedence over them. We believe that to be the case also. However, the Minister really is saying that we just have to wait until the situation gets worse. The reality is that—I quoted Westminster City Council—this is a serious problem already in our cities; a problem which perhaps the Government are not in touch with. It is one which affects many people's lives and one, we feel, which is absolutely suited to the on-the-spot fine. The Government say that they want to avoid criminalising all of us in one fell swoop. Later I shall argue that the alcohol-free zone does just that. There is no difference.

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We feel strongly that here is an opportunity with—as we called it at Second Reading—a "rag bag" of a Bill to use the provision to include a number of clear-cut offences, such as the offence of urinating and defecating in public, to act as a deterrent against behaviour which is happening more and more. One of the reasons is that many public lavatories have been or are being closed in cities for reasons of which we are well aware. But that is no excuse for allowing this frankly disgusting behaviour to take place, as it now does a great deal, in our cities.
In relation to street trading, I repeat what I said a few moments ago. I feel that the Government are being pretty defeatist when they say that there is no point in having this as an on-the-spot fine offence because the street trader will just move his illegal trading elsewhere. Surely the whole point is that with all of these on-the-spot penalty offences offenders will be able to offend again and again, particularly if they move around the country, without having any deterrent. The provision deals with minor clear-cut offences. Street trading is an offence—the evidence is tangible—that is much more suited to this provision than criminal damage. That we have proposed under Amendment No. 3 with regard to harassment and abusive behaviour. Therefore, we feel considerable disappointment with the Minister's response.
6.30 p.m.
Lord Phillips of Sudbury: We have had an interesting debate on an important part of the Bill. We are disappointed that the Government appear to have taken to heart none of the many points that were made. I think it is fair to say that only one speaker in this mini-debate has wholeheartedly supported the Government. We have tried to be constructive in saying to the Government, "Yes, let us give this a go. We have a good deal of doubt about it, but let us give it a chance and see how it runs". The noble Baroness, Lady Buscombe, made the point that it would have been—
Lord Bassam of Brighton: I accept the point that this is the stage at which we should be as constructive as we possibly can be about elements of the Bill. I make this observation. We have issued some draft guidance on the way in which the fixed penalty notice scheme will work. If Members of the Committee are concerned about the operation of the detail—a good deal of the discussion has been about the detail—we want to hear more precisely about those concerns. We need to put the legislation in place so that the scheme can work. We intend to pilot the scheme with the close co-operation of the police. There is always an opportunity to see how the scheme works on the ground. That is our intention. We want to make these measures as practicably based as possible. I hope that those are taken as constructive observations.
Having listened to what the noble Baroness, Lady Buscombe, said, I appreciate that there are problems with urination, defecation and so on in urban areas. I do not dismiss those concerns at all. I look forward to receiving correspondence from Westminster
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Council on the size of the problem and the shortcomings that it might feel exist in the current legislation. I very carefully drew attention to legislation on the statute book that might be of help.
Members of the Committee have made constructive comments. Those comments were designed for the purpose of taking forward the debate. I do not dismiss those concerns at all.
Lord Phillips of Sudbury: I am grateful for the Minister's assurance. However, it does not satisfy us as we are of the view that if the Government were sensible they would limit the type and number of offences for which on-the-spot fines can be levied. I shall not go over our arguments for believing that beyond saying that many speakers in this mini-debate have referred to the difficulties in establishing the necessary evidence and the necessary mental element in this truncated procedure. I think of what the noble Lord, Lord Windlesham, said. I think also of what the noble Lord. Lord Cope, said in response to the Minister's point about compensation orders, which cannot be imposed under the system of on-the-spot fines. That point was laboured effectively by my noble friend Lord Thomas of Gresford.
For all those reasons, we are not content with leaving matters as they are. What the Minister said about guidance—the noble Lord, Lord Brennan, made the point—was not satisfactory. Guidance is guidance. The police have the job of working the scheme. It is their discretion and their authority that will be at stake. Indeed, it would be dangerous if the Home Secretary's non-statutory guidance could tie the hands of police forces. We think that the discretions are too wide and that the experiment is too wide. If the Government were to accept the proposed de-limitations, it would be helpful all round. I am inclined to test the opinion of the Committee.
6.34 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 107.

Division No. 2

CONTENTS

Addington, L.

Phillips of Sudbury, L. [Teller]

Beaumont of Whitley, L.

Razzall, L.

Bradshaw, L.

Redesdale, L.

Clement-Jones, L.

Renton, L.

Falkland, V.

Rodgers of Quarry Bank, L.

Goodhart, L.

Roper, L.

Hamwee, B.

Scott of Needham Market, B.

Harris of Richmond, B.

Shutt of Greetland, L.

Lester of Herne Hill, L.

Thomas of Gresford, L. [Teller]

Ludford, B.

Thomas of Walliswood, B.

Mackie of Benshie, L.

Tope, L.

McNally, L.

Wallace of Saltaire, L.

Mar and Kellie, E.

Walmsley, B.

Miller of Chilthorne Domer, B.

Watson of Richmond, L.

Northover, B.

Wigoder, L.

Oakeshott of Scagrove Bay, L.

Williams of Crosby, B.

Park of Monmouth, B.

Windlesham, L.

493

NOT-CONTENTS

Acton, L.

Hughes of Woodside, L.

Ahmed, L.

Hunt of Chesterton, L.

Amos, B.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L. (Lord Chancellor))

Bach, L.

Bamett, L.

Islwyn, L.

Bassam of Brighton, L.

Jay of Paddington, B. (Lord Privy Seal)

Berkeley, L.

Bernstein of Craigweil, L.

Jenkins of Putney, L.

Blackstone, B.

Judd, L.

Blease, L.

Kennedy of The Shaws, B.

Brennan, L.

King of West Bromwich, L.

Brett, L.

Lipsey, L.

Brooke of Alverthorpe, L.

Lockwood, B.

Brookman, L.

Lofthouse of Pontefract, L.

Burlison, L.

Longford, E.

Carter, L. [Teller]

Macdonald of Tradeston, L.

Chandos, V.

Mclntosh of Haringey, L. [Teller]

Clarke of Hampstead, L.

Clinton-Davis, L.

Mclntosh of Hudnall, B.

Cohen of Pimlico, B.

MacKenzie of Culkein, L.

Crawley, B.

Mackenzie of Framwellgate, L

David, B.

Mallalieu, B.

Davies of Coity, L.

Merlyn-Rees, L.

Davies of Oldham, L.

Milner of Leeds, L.

Dean of Thornton-le-Fylde, B.

Mitchell, L.

Desai, L.

Molloy, L.

Dubs, L.

Morris of Manchester, L.

Elder, L.

Nicol, B.

Evans of Parkside, L.

Patel of Blackburn, L.

Evans of Temple Guiting, L.

Prys-Davies, L.

Falconer of Thoroton, L.

Puttnam, L.

Faulkner of Worcester, L.

Ramsay of Cartvale, B.

Filkin, L.

Rendell of Babergh, B.

Fyfe of Fairfield, L.

Rogers of Riverside, L.

Gale, B.

Sainsbury of Turville, L.

Gibson of Market Rasen, B.

Scotland of Asthal, B.

Gilbert, L.

Serota, B.

Goldsmith, L.

Shore of Stepney, L.

Gordon of Strathblane, L.

Simon, V.

Goudie, B.

Stone of Blackheath, L.

Gould of Potternewton, B.

Symons of Vemham Dean, B.

Graham of Edmonton, L.

Thornton, B.

Grenfell

Tomlinson, L.

Hardy of Wath, L.

Turnberg, L.

Harris of Haringey, L.

Turner of Camden, B.

Haskel, L

Uddin, B.

Haymen, B

Walker of Doncaster, L.

Healey, L

Warwick of Undercliffe, B.

Hilton of Eggardon, B.

Whitaker, B.

Hogg of Cumbemauld, L.

Whitty, L.

Hollick, L.

Wilkins, B.

Hollis of Heigham, B.

Williams of Elvel, L.

Howells of St. Davids, B.

Williams of Mostyn, L.

Hoyle, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.43 p.m.
[Amendments Nos. 2 to 6 not moved.]
Clause 1 agreed to.
Clause 2 [Penalty notices]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 7:
Page 3, line 3, leave out "has reason to believe" and insert "believes beyond reasonable doubt"
The noble Baroness said: The subject addressed in Amendment No 7 has already been aired to some extent this evening. Clearly, it is important in relation
494
to the overall Bill. We on these Benches have real reservations with regard to the burden of proof required for this hybrid offence, which has been likened to a caution.
If the offence is treated like a caution then, as would be the case with a parking offence, that offence is civil as no conviction would result, and payment of a fine serves as proof of admission of the offence. However, can the Minister explain what will happen when a penalty notice is issued? When the notice is given, surely the police officer will be acting as judge and jury, deciding for him or herself whether the alleged offence took place and whether it was of a minor nature, to the extent that an instant fine is the course of action under the circumstances, as opposed to arresting the person. In that case, on arrest the burden of proof will shift to "beyond reasonable doubt".
A police officer faced with a situation where, for example, a fierce brawl has broken out between warring neighbours, will have to make subjective decisions as regards, first, who has been wronged and, secondly, whether that wrong is of such a degree that it should be an arrestable offence rather than suited either to a caution or to an on-the-spot penalty fine. As the Bill stands, the police officer only has to have "reason to believe" that a particular party is in the wrong in order to present them with a fixed penalty notice there and then. If, however, the police officer decides that the harm caused is of such severity that the person whom they believe to be the party in the wrong should be arrested and tried under Section 5 of the Public Order Act 1986, the police officer knows that he or she will have to take time to complete the paperwork and persuade a court that they believed beyond reasonable doubt—in my book that means that they must be almost absolutely sure as opposed to only "thinks probably"—that the person arrested was in fact the wrongdoer in that brawl.
Given the lack of police resources, along with the call of bureaucratic demands on police officers' time, I have a hunch that this will mean that, even in the most severe circumstances and in particular where there is doubt about who of the two warring factions was in the wrong, nine times out of 10 the police officer will be inclined to issue an on-the-spot fine. Can this be right? Where is the deterrent here? Surely this means that the Government should change their mantra from "tough on crime" to "quick fix on crime".
Alternatively, there is the possibility—one that was referred to by the noble Lord, Lord Phillips of Sudbury, when speaking to Amendment No. 1—that perhaps we shall see a popular move on the part of offenders to reject the opportunity to pay a fine on the spot, because they will know that their case has far more chance of being thrown out in a court of law as the burden of proof shifts to "beyond reasonable doubt".
Where do the Government stand in relation to repeat offenders? Let us take the example of hoax callers. We have been told that no national register is to be kept of such offences, in which case a hoax caller

495
will be able to move with ease and continue his or her despicable behaviour, at the mere risk of picking up a fine.
I repeat that we are in favour of introducing on-the-spot penalties for disorderly behaviour. However, we are seriously concerned to ensure that our criminal justice system is not diminished. It is our duty as legislators to uphold and enhance our system of justice, not to compromise our criminal procedures in order to try to apply a quick fix to the system. We should not skirt round the issue of lack of resources. The system must be adequately resourced and thereby improved.
We would do well to recall the words of the Prime Minister when he said: "I want to be associated with eye-catching initiatives, especially on law and order". Eye-catching initiatives should not lead to knee-jerk legislation. In the words of my noble friend Lord Windlesham, when he referred to this on Second Reading, this will lead to,
"thin ice in terms of criminal procedure".—[Official Report, 2/4/01: col. 677]
Those who are unable to pay will be sent to prison. If these fines are supposed to be, in the words of the Secretary of State, equivalent to a caution, is prison the sensible route for a person who fails to pay for that caution? What if they cannot pay? I beg to move.
Lord Renton: Surely it is in the interests of justice that the Government should accept the amendment. The clause as it stands at the moment—which has a purely subjective test on the question of whether an offence has been committed—is wrong. It is a subjective test at the moment because the words,
"A constable who has reason to believe",
refer to his own reason to believe, not to an objective reason.
By proposing that the constable should believe beyond reasonable doubt, my noble friend seeks to make the constable subject to an objective test, which is right in the circumstances. I am afraid that unless the amendment: is accepted there will be injustices.
Lord Thomas of Gresford: We support the amendment. The way the criminal justice system works at the moment is that a police officer may arrest someone for an arrestable offence on suspicion or reasonable belief. However, he then has to consider whether that person should be charged. When he comes to the charging point, he has to take a decision as to whether there is sufficient evidence to persuade a court beyond reasonable doubt that an offence has been committed. The matter will then ordinarily go to the CPS, which will apply the same test; that is, is there at least a 50 per cent chance that a court will be satisfied beyond reasonable doubt of the guilt of the accused person?
If the Government choose to introduce an alternative way of dealing with a criminal offence by the use of these fixed penalties, then, as the noble Lord, Lord Renton, pointed out, the same objective tests should be used for the alternative procedure as would
496
normally be used by those charging and by the CPS in taking a decision to prosecute. That is a sensible way forward and I support the amendment.
Lord Windlesham: As we have heard in previous speeches on the amendment, the standard of proof is that a police officer has reason to believe that a person over the age of 18 has committed a penalty offence. As the noble Lord, Lord Renton, argued so effectively, that must be the police officer's own reason to believe and must be subjective. How can it be anything else? I believe that this is another—imperceptible perhaps to some, but nevertheless gradual—erosion of civil liberties, as we have seen in other criminal justice measures which have been brought before this House during the current Parliament.
I do not accuse the Government of any bad motives; I do not think that it is deliberate. I think that these are consequences which have not been thought out. It is the law of unintended consequences that often does much harm before the situation is finally put right by subsequent legislation, often when the harm has been done.
We must remember that the concept of the burden of proof describes the duty which is on the prosecution in a criminal trial to establish the facts beyond reasonable doubt. As all law students know, this has long been regarded as a golden thread in our criminal jurisprudence. It should surely be maintained when there are alternative, novel forms of penal sanction and when we are not sure where they will lead. During the initial stages they do not involve an appearance in court, but, as the noble Lord, Lord Thomas, pointed out, that may be the consequence at the end of the day.
At present the Bill requires that a police officer has only to have reason to believe that a penalty offence has been committed in order to issue a fixed penalty notice. As I have argued, this standard obviously is less than the criminal burden of proof. So the effect of accepting a fixed penalty notice will be to accept that behaviour has occurred to a criminal standard; that the behaviour is criminal behaviour. Police officers imposing penalty notices should therefore surely be required to be satisfied to this standard before being able to impose them.
The noble Lord will need notice for this question, so I ask him and those who advise him to listen closely. If an accused is brought to a police station, does he have access to legal aid and the duty solicitor? If he is accused of a criminal offence, he does; but I do not know whether or not it has been thought out what will happen if he is not accused of an arrestable offence at this stage. It is possible that that question is not right in the front of the Minister's mind either, but there must be those who can advise him and who, by the time we reach the end of the debate, can give an answer. For those reasons, I strongly support the amendment.
Viscount Goschen: In regard to the issue of the level of the burden of proof, perhaps I may ask the Minister two factual questions about the procedure which will occur if such circumstances arise. If a person is arrested for, perhaps, being drunk and disorderly or

497
for criminal damage and is offered the penalty notice, as I understand it, that is the equivalent of a 21-day option. He can accept it and pay the fine, or he can during that period ask to be tried. If he does ask to be tried, will the fact that he originally wished to take the fixed penalty option weigh with the court? Will that be brought up in court? In other words, will he have made an admission of guilt? Will that count as an admission of guilt or not?
Similarly, if the individual—who may well, if it is an alcohol-related charge, not be in a fit state to make such a decision—should say to the police constable, "No. Under no circumstances do I accept this. I will see you in court", can he then change his mind the other way? In other words, is there a two-way 21-day option? Can be decide at a later date—perhaps when he sobers up the next morning—"Oh yes, I did do that and I shall be better off with a fixed penalty"? Can he do that?
Lord Phillips of Sudbury: At first sight the amendment looks as though it puts a torpedo below the waterline of the whole idea of on-the-spot fines. I do not believe that it does. In a strange way it assists the process that the Government are seeking to put in place, albeit that it may reduce the number of occasions on which constables will use the power. The fact that it will give further pause to police before they use the on-the-spot fine will, in the long run, prove of benefit to the scheme as a whole. That is partly why we support the measure.
7 p.m.
Lord Bassam of Brighton: The amendment concerns the circumstances in which a constable may issue a penalty notice. It would have the effect of changing the test that a constable would have to apply before issuing a penalty notice. Instead of having reason to believe that an offence had been committed he would have to believe beyond reasonable doubt that an offence had been committed.
It needs to be understood that there is a degree of subjectivity in all of these matters. Police officers are used to making subjective judgments from time to time. It is part of their job as operational officers. The important point is that it must be believed that the test "has reason to believe" is appropriate. We believe that it is appropriate to what we have described as a lower order of offences. It is appropriate also in terms of the other part of the scheme; namely, that the behaviour must clearly have occurred, that it must have been plain on the face of it that that was exactly what was going on, and for those reasons the police officer "has reason to believe" that an offence has been committed. It must have been plain to the officer that he or she had good reason to believe that offensive behaviour had occurred. I agree that sometimes the test will be applied in a subjective way. That is the way in which policing is conducted.
We believe that the test is appropriate for a scheme such as this. The scheme is based on consent; it has no impact on the fundamental rights of the individual;a
498
similar test is applied in the case of road traffic fixed penalty notices, so it is consistent with fixed penalty notices in other instances; and if on receiving a fixed penalty notice an individual does not accept the allegation, he or she may challenge that allegation in court, where the test of proof—of the matter being "beyond reasonable doubt"—would apply. The provision does not qualify that in any way. In reference to a more rigorous and objective test, if people do not like the suggestion of conforming to a fixed penalty notice, they have the important option to test the veracity of the evidence. In this way, the right of a person who receives a penalty notice to a trial of the allegations is preserved and the higher threshold is therefore not necessary. For those reasons we cannot accept the amendment.
A number of questions have been asked. The noble Lord, Lord Windlesham, raised one that is not contained in my immediate briefing, as the noble Lord accurately surmised, and I should like to reflect the point he raised.
The noble Baroness, Lady Buscombe, made some points about how a police officer might consider giving a penalty notice. The police officer will know, if the alleged offender asks for a trial, that he will have to back up the allegation with evidence in court in a full test of the proof. That is the more important consideration. The police should look on the scheme of fixed penalty notices as part of a range of approaches to dealing with some of the problems with which we are all trying in our different ways to grapple. The police already have the power to caution or to give informal warnings. This is a further option. As I said, police officers already exercise discretion in deciding how to deal with an offence. There is no reason to believe that they will use these powers any less appropriately than they use other powers.
The example given by the noble Baroness had to do with warring factions. I suspect that that is exactly one of the circumstances in which a fixed penalty notice may be less appropriate. It is important in such circumstances that evidence is properly tested.
Baroness Buscombe: Perhaps I may interrupt the Minister. The point I was trying to make was this. There may be a situation where an on-the-spot fixed penalty notice may be less appropriate, but the police officer may weigh up quickly in his mind that given the fact that the case will take up a great deal of time in form-filling and that if the case goes to court he will be involved with a shift in the burden of proof beyond reasonable doubt, it will be much easier to hand out an on-the-spot penalty—and our criminal justice system is thereby diminished.
Lord Bassam of Brighton: I cannot accept that point. In effecting an arrest, the officer will have to make a judgment. He will know that if he wishes to go along the route of a fixed penalty notice, it is not an absolute: it is not in his discretion; there is another party to this.

499
If the individual does not wish to accept the fixed penalty notice, he or she can ensure that there is a proper legal challenge.
Baroness Buscombe: Supposing that the offender prefers to accept the on-the-spot penalty, he does not have to go through the embarrassment of a court case, even though the offence that he has committed is quite severe.
Lord Bassam of Brighton: I keep returning to the important point that these will be lower order offences. We need to focus on that and I hope that the noble Baroness can accept it. The noble Baroness must choose whether or not she supports fixed penalty notices. Having heard some of her points, I am not sure that she does. If she accepts the principle, as I thought she had—
Baroness Buscombe: We accept the fixed penalty notice in principle, but we should prefer the burden of proof that a police officer must apply when deciding whether to go for a fixed penalty notice to be the same as that used in a court of law; namely, that the matter is "beyond reasonable doubt". If, in the words of the Minister, we are talking about clear-cut offences that have occurred, what is the problem with retaining the same threshold as already applies in a court of law? Why lower the threshold for the burden of proof?
Lord Bassam of Brighton: What we are trying to capture here, with a range of other measures including cautions, final warnings and so on, is in part anti-social behaviour. If we were to apply the higher burden of proof, the test that a matter is "beyond reasonable doubt", I suspect that an argument might be made that fixed penalty notices were being used for more serious offences. I have made it plain that we do not believe that that should be the case. The noble Baroness cannot have it both ways.
We are trying to use this provision and focus it on a lower order of offences to ensure that we capture such offences as anti-social behaviour. Yes, I accept that the police will have a judgment to make. They will have to arrive at a proportionate decision. I am sure that, with guidance and training and with their understanding of the way in which it is intended that the scheme should work, and given our belief that we shall need to pilot these provisions carefully with the police and work out how best use can be made of these proportionate measures, the scheme should work well.
Lord Renton: Having listened carefully to the Minister, I hope that he will give this matter further thought between now and Report stage. What may happen is this. A constable deciding to ask an accused person to pay the immediate penalty may be influenced by mere folly or by excessive zeal. He may have no valid reason but may hope to get away with it. If we simply stick to the subjective test, he may get away with it, or—and this will lead to public expense—the accused person may think the circumstances
500
unreasonable and may refuse a penalty and have to be taken to court. I implore the noble Lord, in the public interest, to bear those factors in mind.
Lord Phillips of Sudbury: I merely want to add to the accurate comment of the noble Lord, Lord Renton. There is a fault-line running through the Minister's argument about applying on-the-spot fines to what he terms "lower order offences". All such offences can be taken to court, in which case they are not lower order offences at all; they are ordinary offences for which the normal criminal test applies. Perhaps the Minister will tell the House whether there is any example in our legal system of this duality of test applying in the way that it does in this case. I doubt whether there is. If there is, it should not be there; it is a logical nonsense
Lord Thomas of Gresford: What we are really discussing is lower-order plea bargaining. Public policy in this country has always set its face against plea bargaining which involves this sentence. Time and again, the Court of Appeal has said that the judge who imposes the sentence should play no part in the decision as to whether a prosecution is continued, what charges are accepted, and so on. We are talking about the police station where the police officer says, "Well, look, I'm not really sure that I can get a conviction as a result of the disorderly conduct for which you've been arrested. I can try. I could take you to the court for affray; I could take you to the court under Section 5 and, if I get a conviction, you would get something on your record that will always be with you. On the other hand, if you pay this penalty under the notice, you will hear no more about it. It won't be on your record and it won't be a conviction. Just pay up and that'll be the end of it". That is the whole problem with this system.
Lord Hurd of Westwell: I came entirely fresh to this argument. However, I have listened most carefully to what has been said during the past half-hour. The arguments in support of the amendment have been put forward with overwhelming reason and force. This is a serious matter; indeed, more serious than might immediately appear to be the case. We all know that the police will do their best; but we all know that police officers may be tempted to use this facility in a way that was doubtless not intended by Ministers. However, the temptation would be there, and it ought not to be. I urge the Minister to think again and to accept the amendment.
Baroness Buscombe: I wonder whether the Minister intends to say anything further on the amendment.
Lord Bassam of Brighton: I shall certainly reflect upon all the comments that have been made. However, I make that observation with no commitment to take such reflection beyond that point. I accept that the arguments have been put honestly and with integrity, coupled with a concern to get the matter right I return to the point that I made at the outset of my response; namely, that this proposition will assist law

501
enforcement. It will enable police officers to make reasonable judgments as to what is the right and appropriate way forward. It will add to a panoply of ways of tackling yobbish and anti-social behaviour. Indeed, it will entail a degree of consent between the police officer on the one hand, and, on the other hand, the person who is the subject of the allegation and who the police officer reasonably believes has committed an offence that can best be dealt with through a fixed penalty notice. Moreover, there are reasonable measures in place to ensure that the individual's rights are properly protected. I am not prepared to go any further on the amendment.
Lord Windlesham: Perhaps I may add this as a footnote. When he attended a meeting last week to which representatives of all parties who are interested in the Bill were invited, the Home Secretary made it quite clear that he would take careful account of what was said in this House. We appreciated that fact. I ask the Minister to report back to the Home Secretary in person what has been said. Perhaps he will draw attention to the fact that the noble Lord, Lord Hurd, who has held very high responsibility in this exact field, has added his own weight after hearing the argument.
Lord Bassam of Brighton: I feel duty bound to do exactly as the noble Lord suggests. My right honourable friend the Home Secretary did indeed make that commitment.
Baroness Buscombe: Notwithstanding the commitment that the Home Secretary made last week and despite the fact that it is early days yet in this Committee stage, I have to say that I am a little disappointed that the Government have responded to a number of the points raised this evening in exactly the same way as they did both in Committee and on Report in another place. Therefore, I do not have a great deal of faith that the arguments so forcefully put forward this evening will make any difference. I strongly believe that the amendment would add credibility to the whole principle that the Government are determined to take forward in relation to this new vehicle—this hybrid offence. That being the case, we should like to press the amendment and test the opinion of the Committee. We believe that it should be accepted.
7.15 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 98.

Division No. 3

CONTENTS

Addington, L.

Astor of Hever, L

Allenby of Megiddo, V.

Attlee, E.

Ashcroft, L.

Barker, B.

Astor, V.

Blatch, B.

502

Bradshaw, L.

Mackie of Benshie, L.

Bridgeman, V.

McNally, L.

Brougham and Vaux, L.

Maddock, B.

Burnham, L. [Teller]

Mancroft, L.

Buscombe, B.

Mar and Kellie, E.

Byford, B.

Marlesford, L.

Carnegy of Lour, B.

Masham of Ilton, B.

Clement-Jones, L.

Miller of Chilthorne Domer, B

Colwyn, L.

Monson, L.

Cope of Berkeley, L.

Northbrook, L.

Craigavon, V.

Northesk, E.

Cumberlege, B.

Northover, B.

Dixon-Smith, L.

Oakeshott of Seagrove Bay, L.

Falkland, V.

Perry of Southwark, B.

Fookes, B.

Phillips of Sudbury, L.

Gardner of Parkes, B.

Razzall, L.

Geddes, L.

Renton, L.

Glenarthur, L.

Rodgers of Quarry Bank, L.

Glentoran, L.

Roper, L.

Goodhart, L

Scott of Needham Market, B.

Goschen, V.

Seccombe, B.

Greenway, L.

Selborne E

Hambro, L.

Shutt of Greetland, L.

Hamwee, B.

Skelmersdale, L.

Harris of Peckham, L.

Stewartby, L.

Harris of Richmond, B.

Thomas of Gresford, L.

Henley, L.[Teller]

Thomas of Walliswood, B.

Hodgson of Astley Abbotts, L.

Tope, L.

Hurd of Westwell, L.

Waddington, L.

Jopling, L.

Wallace of Saltaire, L.

Kingsland, L.

Walmsley, B.

Ludford, B.

Watson of Richmond, L.

Luke, L.

Williams of Crosby, B.

Lyell, L.

Windlesham, L.

Young, B.

NOT-CONTENTS

Acton, L.

Gordon of Strathblane, L.

Ahmed, L.

Goudie, B.

Amos, B.

Gould of Potternewton, B.

Archer of Sandwell, L.

Graham of Edmonton, L.

Bach, L.

Grenfell, L.

Barnett, L.

Hardy of Wath, L.

Bassam of Brighton, L.

Harris of Haringey, L.

Berkeley, L.

Haskel, L.

Bernstein of Craigweil, L.

Hayman, B.

Blackstone, B.

Hilton of Eggardon, B.

Blease, L.

Hogg of Cumbernauld, L.

Brennan, L.

Hollick, L.

Brett, L.

Hollis of Heigham, B.

Brooke of Alverthorpe, L.

Hoyle, L.

Brookman, L.

Hughes of Woodside, L.

Burlison, L.

Hunt of Chesterton, L.

Carter, L. [Teller]

Hunt of Kings Heath, L.

Chandos, V.

Irvine of Lairg, L. (Lord Chancellor)

Clarke of Hampstead, L.

Clinton-Davis, L.

Islwyn, L.

Cohen of Pimlico, B.

Jay of Paddington, B. (Lord Privy Seat)

Crawley, B.

David, B

Jenkins of Putney, L.

Davies of Coity, L.

Kennedy of The Shaws, B.

Davies of Oldham, L.

King of West Bromwich, L.

Desai, L.

Lea of Crondall, L.

Dubs, L

Lipsey, L.

Elder, L.

Lockwood, B.

Evans of Parkside, L.

Lofthouse of Pontefract, L.

Evans of Temple Guiting, L.

Macdonald of Tradeston, L.

Falconer of Thoroton, L.

Mclntosh of Haringey, L. [Teller]

Faulkner of Worcester, L.

Filkin, L

Mclntosh of Hudnall, B.

Fyfe of Fairfield, L.

MacKenzie of Culkein, L.

Gale, B

Mackenzie of Framwellgate, L.

Gibson of Market Rasen, B.

Mallalieu, B.

Gilbert, L.

Mitchell, L.

Goldsmith, L.

Molloy, L.

503

Nicol, B.

Taylor of Blackburn, L.

Patel of Blackburn, L.

Thornton, B.

Puttnam, L.

Tomlinson, L.

Ramsay of Carl vale, B.

Tumberg, L.

Rea, L.

Turner of Camden, B.

Rendell of Babergh, B.

Uddin, B.

Rogers of Riverside, L.

Walker of Doncaster, L.

Sainsbury of Turville, L.

Warwick of Undercliffe, B

Scotland of Asthal, B.

Whitty, L.

Simon, V.

Wilkins, B.

Stoddart of Swindon, L.

Williams of Elvel, L.

Symons of Verriham Dean, B.

Williams of Mostyn, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.25 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 8:
Page 3, line 3, after "aged" insert "16 or over, or (in the case of a penalty offence which may only he committed by a person aged 18 or over) aged"
The noble Baroness said: This amendment would reduce to 16 the age at which a person could receive a notice. There is no doubt that the kinds of offences for which Part 1 of this Bill are intended are often committed by those under the age of 18. The House of Commons Library estimates that 25 per cent of all offences are committed by persons under 18 and many of those are in the 16 to 18 age range.
Given the kinds of offences set out in Clause 1, it will surely be extremely hard for police officers to differentiate between offenders over and under the age of 18. In Committee in another place the Government argued that police officers have to deal with that situation every day. However, with respect, they have not had to deal with this procedure hitherto. The provision will also mean that where a group of young people commit an arrestable offence, those over the age of 18 can get off with a fine if they can pay it, but those under the age of 18 will be arrested and tried in a court of law, can be convicted and thereby earn themselves a criminal record. Is that what the Government intend? And is it reasonable?
We know that the Government are reluctant to invoke any new system which might upset the reforms to the youth justice system introduced in the Crime and Disorder Act 1998. We on these Benches are, however, not at all persuaded that it is right that the kind of minor offences envisaged by the Government to apply to on-the-spot penalty notices should not apply to 16 to 18 year-olds. Why cannot these penalty notices complement the progressive system of reprimand in certain limited circumstances as listed in Clause 1 of the Bill? Would they not act as a useful deterrent showing that the law will bite without delay if people are intent upon disorderly and anti-social behaviour? I beg to move.
Lord Bassam of Brighton: The question of whether under- 18s should be included in the schemes is a very significant one. As my right honourable friend the Home Secretary said in another place, a balanced judgment has been made not to include the under-18s in these provisions. The reforms to the youth justice
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system introduced in the Crime and Disorder Act 1998 are in place and working well and, tempting though it might be, we feel that it is better not to destabilise that position by adding penalty notices to the range of options available.
At present, a person under 18 is subject to a strictly progressive system of reprimand, final warning and charge in which there is positive intervention by youth offending teams to confront the offender with the consequences of his or her actions. The addition of financial penalties of the kind set out in this chapter of the Bill do not fit well into that tightly controlled and much praised framework and risk causing serious disruption to it.
Some people under 18 would be dependent on their parents to pay the penalty for them. Some speakers have already said that it would be unfortunate to put in place penalties which catch those not directly involved or who should not or are not able to pay. That raises the prospect of juveniles having to respond to penalty notices on the basis of their parents' willingness or otherwise to pay, rather than from their own choice. We want to confront young people with choices and the issue of responsibility.
We believe that it is preferable to ensure that under 18 year-olds are confronted with the consequences of their actions through the current arrangements than possibly to confuse those arrangements by attempting to dovetail them to the new penalty scheme.
Noble Lords on the Opposition Benches have to decide whether they want to narrow or broaden the effect of fixed penalty notices. If we were to adopt the course urged upon us by the noble Baroness, Lady Buscombe, we should be unnecessarily broadening the scheme when we want it to have a proper, appropriate and better focused application to issues of disorder and yob behaviour. For all those reasons, I cannot accept the amendment.
Baroness Buscombe: I have listened with care to what the Minister said. I am disappointed with the response although not surprised by it. Much that the noble Lord said was stated in another place. However, we felt it important to air this important point again. When we met the Secretary of State last week—on behalf of these Benches perhaps I may say how grateful we were to have that opportunity—he said that it was, in his words, a close call as to whether or not these offences should impinge also upon those aged 16 and 17.
I find the argument about dependency of tinder 18 year-olds upon parents to pay the penalty a somewhat spurious red herring. Why should we not turn to parents to pay a penalty fine for those over the age of 18? Parents do not stop supporting young people as soon as they reach 18. The Government have ensured that parents have to continue to support young people over the age of 18 with regard to tuition fees and means-tested grants for university. There is no question of a cut off in any family home because an individual reaches the age of 18.

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I shall not press the amendment. I continue to believe that it would have supported and assisted the youth justice system rather than disrupting it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Representation of the People (Northern Ireland) (Amendment) Regulations 2001
7.33 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft regulations laid before the House on 23rd April be approved [14th Report from the Joint Committee.]
The noble Lord said: My Lords, on behalf of my noble friend I beg to move that these draft regulations be approved. In so doing, I shall speak also to the other Motions standing in his name on the Order Paper. I hope that I shall be able to demonstrate that the regulations and order are designed to achieve the same purpose, which is why it makes sense to consider them together. I shall also endeavour to show that all of the provisions contained in these regulations are uncontentious and deserve your Lordships' support.
The purpose of all these instruments is to correct some minor defects in existing regulations. Let me first, on behalf of the Government, apologise unreservedly for those defects. All I can say is that mistakes can happen in the best run of departments and I hope that your Lordships will be forgiving.
The genesis of these regulations was a debate that was held during the recent passage of the Elections Act 2001, which is the Act which postponed the local elections until June. The noble Lord, Lord Cope of Berkeley, tabled an amendment to correct a defect in respect of the supply of electoral register updates. Responding, my noble and learned friend the Attorney-General said that the Government were sympathetic to the purpose behind the amendment but that we did not feel that the Elections Bill, as it then was, was the right vehicle to make the change in question. Instead, my noble friend made a commitment to your Lordships that, as quickly as possible, we would bring forward self-contained regulations to correct the defect. The result is the four sets of provisions that are currently before your Lordships' House.
The first three sets of regulations relate to parliamentary and local government elections in England and Wales, Scotland and Northern Ireland respectively, while the fourth—the Scottish Parliament (Elections etc.) (Amendment) (No. 3)
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Order 2001—relates to elections to the Scottish Parliament. As I have indicated, the main purpose of all four sets of provisions relates to the supply of updates of the electoral register which come about as a consequence of the introduction of rolling registration.
Regulations 46 and 47 of the various Representation of the People Regulations 2001, which came into force earlier this year, deal with the supply of free copies of the electoral register either on request or automatically. Regulation 46 provides for the automatic supply of the register, together with the monthly updates to it made under rolling registration, to bodies such as the Electoral Commission, the Secretary of State and the British Library. Regulation 47 provides for the supply of the register on request to MPs, councillors, the political parties and candidates.
Although the intention was also to provide for the supply of the monthly updates under Regulation 46 to MPs, councillors and candidates, in the event this was not specified in the regulation. Some electoral administrators have interpreted the regulation to mean that they are unable to do so. Others have taken a different view and interpreted the regulation in the spirit in which it was intended and have supplied the monthly updates to these people.
Clearly this situation is unsatisfactory and the main purpose of the regulations before your Lordships' House is to put it beyond doubt that monthly updates should be supplied to those involved in contesting elections.
For the sake of completeness, I should make clear that in the case of elections to the Scottish Parliament which, as I have indicated are the subject of the fourth Motion, the relevant instrument is the Scottish Parliament (Elections etc.) Order 1999. However, the changes made by article 3 of this order are the same as those being made in respect of Westminster parliamentary elections by the other regulations.
Regulation 3 of each of these regulations deals with the definition of the term "data". Regulation 3(1) of the various 2001 regulations (and paragraph 7 of the Scottish Parliament election regulations) define "data" as having the same meaning as in Section 1(1) of the Data Protection Act 1998. But that definition includes data other than electronically held data. In the 2001 regulations, the term data is meant only to refer to electronically held data. Accordingly, Regulation 3 of these regulations substitutes a new definition of data which derives from paragraph (b) of the definition in the 1998 Act and confines it only to electronically held data.
The regulations contain a couple of other minor points. Paragraphs 5 and 7 of the England and Wales regulations are designed to introduce a measure of consistency. Under Schedule 4 of the Representation of the People Act 2000, people may apply for an absent vote for,
"an indefinite or particular period".
However, the 2001 regulations, when dealing with the same issue, refer to a "definite or indefinite period" and to a "defined" period. The regulations simply change "definite" and "defined" to "particular" to ensure consistency with the original Act.
Finally, I deal with Regulation 6 of the England and Wales regulations, which is Regulation 5 of the first set of Scotland regulations. Regulation 56(5) of the 2001 regulations provides that if a voter who has been granted an absent vote wants instead to vote in person, their application to be removed from the list of those who have been granted absent votes must be received by 5 p.m. on the 11th day before the date of the poll if it is to have effect for that election. Once that deadline has passed, the returning officer is likely to start sending out postal ballot papers.
However, various other provisions relating to proxy votes have a deadline of 5 p.m. on the sixth day before the date of the poll. These include cases in which the proxy no longer wishes to act in that capacity. The problem with that is that in a relatively small number of cases those who act as proxies vote by post. Potentially, therefore, a proxy could quite properly apply to cease to be a proxy after a ballot paper had already been sent to him.
Accordingly, Regulations 6 and 5 of these regulations amend Regulation 56(5) to introduce a common closing time so that all such applications need to be received by the registration officer by the same point, which will be 5 p.m. on the 11th working day before the date of the poll. Article 4 of the second Scottish instrument makes a corresponding change for elections to the Scottish Parliament.
I have done my best to explain the purpose of the regulations in straightforward language. I hope that I have not been too technical or too confusing. I emphasise that they are designed to correct minor and, in some cases, purely drafting defects. The only substantive change they make is to ensure that those who are supplied with copies of the electoral register on an annual basis can also receive the monthly updates to it. I am sure that all your Lordships can see the benefits of that. We have consulted the Electoral Commission on the regulations and it has endorsed them. I therefore hope that your Lordships will see fit to approve all the instruments. I beg to move.
Moved, That the draft regulations laid before the House on 23rd April be approved. [14th Report from the Joint Committee]—(Lord Davies of Oldham.)
Viscount 13ridgeman: My Lords, I, too, acknowledge the generous response of the noble and learned Lord the Attorney-General to the amendment that my noble friend Lord Cope and I tabled to the Elections Bill. We are grateful to the Government for giving prompt effect to the intentions behind that amendment. All political parties will be grateful for the regulations, which will save them all considerable expense. We support them.
Lord Goodhart: My Lords, I shall speak on behalf of my party in respect of the first three measures. My noble friend Lord Mar and Kellie will deal with the fourth as it relates to the Scottish Parliament.
It is obviously correct that the regulations should be passed. It is plainly desirable that those who receive annual copies of the register should also receive the monthly updates. It is essential for candidates and political parties to do so. I entirely support the amendments that these new regulations make to the existing regulations.
The Earl of Mar and Kellie: My Lords, I thank the noble Lord, Lord Davies of Oldham, for explaining the Scottish parliamentary order. I hope that I have understood it. The No. 3 order deals with the provision of electoral registers and tidies up the implications of the rolling register and the various means by which it is now recorded and distributed. Presumably it refers to electronic records and CDs.
The No. 3 order also sets down a final date 11 days before an election for an elector to remove their name from the register of absent and proxy votes. I hope that the Government will promote the use of the absent vote, by which we mean the postal vote. I accept that there is potential for electoral fraud, but I believe that many electors would find a postal vote surprisingly convenient. A campaign to promote postal voting may even increase the turnout, which is desirable.
Baroness Carnegy of Lour: My Lords, I have two questions for the Minister on the Scottish order. He may have answered the first and I missed it, because, even though he tried to use ordinary language, he was describing something rather complicated. People will be able to remove their name from the list of absent voters up to the 11th working day before the poll. Is that the same for Westminster parliamentary elections? It ought to be, but I just wondered.
I have lost my place. If the Minister could answer that question, I may think of the other one in a moment.
Lord Davies of Oldham: My Lords, I hope that I am able to answer the questions without provoking further ones, lest I get into deep waters.
I very much appreciate the comments of the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Goodhart, who recognised the desirability of ensuring that the crucial data on the electoral roll are available in the most up-to-date form possible to all concerned with contesting elections.
The noble Earl, Lord Mar and Kellie, asked about the 11 days. We are bringing the two dates into line so that we do not have a ridiculous situation in which a person can withdraw from being a proxy after the ballot paper has already been designated to them. I entirely accept the noble Earl's point that we should facilitate the exercise of the democratic opportunity in

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the best way we can. He is right that improved ways in which we can facilitate postal votes may assist in that. The regulations merely bring the dates into line and in no way inhibit that. The noble Earl will recognise that a number of steps have been taken in recent years to promote the opportunity to obtain the right to vote by post, which meet his substantive point.
On the point raised by the noble Baroness, Lady Carnegy, I was seeking to say—although perhaps not as coherently as I might have done—that the 11 days are days on which the clock ticks towards an election date. As she rightly said, they are often called working days because they are days of the week, excluding bank holidays and one or two other days that are outwith the parliamentary calendar. Therefore, she is absolutely right in her assumption that it is intended to bring the Scottish position fully into line with, and be totally consistent with, that of Westminster.
Baroness Carnegy of Lour: My Lords, I apologise for having lost my place earlier. Perhaps I may ask the noble Lord whether the security of the relationship between the postal vote and the voter is the same as for Westminster. If it should turn out that the system does not work very well, will the Government suggest to the Scots Parliament that it be changed before the Scottish Parliament elections? I believe that we are very keen that people should be able to vote by post. However, that must not be abused, and I wonder whether the system for the Scottish Parliament elections will be the same.
Lord Davies of Oldham: My Lords, I believe that I can assure the noble Baroness that the arrangements are to be the same. I can also assure her that our increasing experience of the extended opportunity for postal voting enables us to guarantee, in the phrase that she used, security; that is, the person on whose behalf the vote is cast will be the person who has received and cast the vote and who has signed accordingly. Any proxy arrangement is common to all the elections in those terms. Therefore, I believe that I can assure her on that point. In doing so, I hope that I can assure the House of the significance of the regulations and orders and of the justification behind them. At the same time, I apologise for the small administrative reason which gave rise to them.
On Question, Motion agreed to.

Representation of the People (England and Wales) (Amendment) Regulations 2001
Lord Davies of Oldham: My Lords, I beg to move the second Motion standing on the Order Paper in the name of my noble friend Lord Bassam of Brighton.
Moved, That the draft regulations laid before the House on 23rd April be approved [14th Report from the Joint Committee].—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Representation of the People (Scotland) (Amendment) Regulations 2001
Lord Davies of Oldham: My Lords, I beg to move the third Motion standing on the Order Paper in the name of my noble friend Lord Bassam of Brighton.
Moved, That the draft regulations laid before the House on 23rd April be approved [14th Report from the Joint Committee].—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Scottish Parliament (Elections etc.) (Amendment) (No. 3) Order 2001
Lord Davies of Oldham: My Lords, I beg to move the fourth Motion standing on the Order Paper in the name of my noble friend Lord Bassam of Brighton.
Moved, That the draft order laid before the House on 23rd April be approved [14th Report from the Joint Committee].—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Scottish Parliament (Elections etc.) (Amendment) (No. 2) Order 2001
7.52 p.m.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale rose to move, That the draft order laid before the House on 23rd April be approved [14th Report from the Joint Committee.]
The noble Baroness said: My Lords, this order amends the Scottish Parliament (Elections etc.) Order 1999, which makes provision for the conduct of elections and the return of Members to the Scottish Parliament. The Electoral Commission has been consulted, as required by the Political Parties, Elections and Referendums Act 2000.
The changes amend the timetable for proceedings to fill a vacancy in a constituency seat of the Scottish Parliament and align it with the minimum notice required for an election to the UK Parliament. That will mean that an election to fill a vacancy in a constituency seat in the Scottish Parliament can be held more easily on the same day as a UK Parliament general election or by-election.
It makes sense for by-elections to the Scottish Parliament to be held at the same time as the general election, whenever that may be called. As shown by evidence on voter turnout, we know that, when faced with a number of elections, electors prefer to vote on the same day.
However, the present provisions in the Scottish Parliament (Elections etc.) Order would not permit polls on the same day if a general election were called, as it could be, at notice which is less than the shortest period required for notification of a Scottish Parliament by-election. At present, the relevant returning officer must publish notice of an election to the Scottish Parliament not sooner than the
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28th working day and not later than the 21st working day before the date of the poll. That is the same timetable as for Scottish local government elections.
However, the writ for a general election to the UK Parliament can be issued up to 17 working days before the poll and only 14 working days in the case of a by-election. That means that, if there is need for an election to fill a constituency vacancy in the Scottish Parliament at approximately the same time as an election is to be held for the UK Parliament, voters in Scotland may be faced with two elections held within a very short time of each other.
The changes brought about by the new order will not apply to the timetable for general elections to the Scottish Parliament, thereby retaining the significant link with local government elections in Scotland; nor will they alter the returning officer's earliest date for publication of the notice of election. However, the latest date for publication will now match the last date possible for calling a UK Parliament election.
Similarly, for the delivery of nomination papers, the same earliest date has been retained within the timetable, but the latest possible date for delivery will now match that within the timetable for an election to the UK Parliament. Therefore, that will allow the returning officer maximum flexibility. I ask the House to support the order. I beg to move.
Moved, That the draft order laid before the House on 23rd April be approved [14th Report from the Joint Conimittee].—(Baroness Ramsay of Cartvale.)
The Earl of Mar and Kellie: My Lords, I am most grateful to the noble Baroness, Lady Ramsay of Cartvale, for explaining this Scottish parliamentary order. It was not long ago that we had before us the Scottish Parliament (Elections etc.) (Amendment) Order—a substantial document extending to 19 pages. Tonight, we are adding amendments to that order. Those seem to be benign in character and probably correct hidden and unintended omissions from the original amendment order. I presume that the references to the No. 2 and the previous No. 3 amendment orders presuppose that the earlier order was No. 1.
It would be uncharacteristic of me not to comment on the Explanatory Notes. While I recognise that this order originates from the Secretary of State for Scotland, I understand why there is no ultra-clear Executive Note from the Scottish Parliament—it is not consulted on this reserved matter. However, I am pleased to say that the Explanatory Notes given tonight deserve a plaudit rather than a brickbat. May clarity remain a virtue at Meridian Court in Glasgow.
This No. 2 order introduces a new timetable for a by-election for a constituency seat. Both the notice of election and the return of nomination papers are given a wider period within which to operate, and they are brought closer to the actual poll. Presumably, that is aimed at increasing the participation of candidates. If so, that is good. I note the possibility of combining a by-election with a UK general election.
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It should be noted that thus far there have been two by-elections for the Scottish Parliament—both constituency by-elections in Ayr and in the seat of the late and much respected First Minister, Donald Dewar. Another is, of course, pending following the resignation of Dr Sam Galbraith. Perhaps that by-election will be covered by these new rules.
Baroness Carnegy of Lour: My Lords, I, too, have looked at the Explanatory Notes. The last paragraph states that the 1999 order was also amended by the Scots Parliament. However, the amendments made by that order were not relevant to the purposes of this order. Can the noble Baroness explain that so we all understand everything we are doing? The order appears to be an excellent idea.
Baroness Ramsay of Cartvale: My Lords, I am grateful for the welcome given to this order. The noble Earl, Lord Mar and Kellie, has been very kind about the Explanatory Notes. We have taken on board his comments and, indeed, the comments from the Front Bench opposite about the differences in the quality of the Executive Notes which the Scottish Parliament produces. But, as we explained previously, they are intended for slightly different purposes.
However, we have taken on board comments made consistently in this House about the various orders and legislation taken through by the Scottish Office here that the Explanatory Notes should be more enlightening than sometimes they have been in the past. We are very glad to hear that, in this case, they have met with approval. The noble Earl is right that there is not an Executive Note. This order does not require the Scottish Parliament to act. It is very much a reserved matter.
The noble Earl suggested that the order might increase the participation of candidates; in fact, it is intended to increase the participation of voters. The idea is that having two elections within a very short time of one another is not the way in which to encourage people to go to the polls. We are trying to make it possible, when the timings fit, to have votes on the same day.
Two elections would be affected by the order. The first, as the noble Earl said, is that resulting from the vacancy at Strathkelvin and Bearsden; the other, I understand, is the election at Banff and Buchan, where there could be a constituency election to the Scottish Parliament on the same day as the UK general election, whenever that might be.
The noble Earl rightly suggested that the first order was the Scottish Parliament (Elections etc.) (Amendment) Order 2001. I have moved the Scottish Parliament (Elections etc.) (Amendment) (No. 2) Order 2001. It is referred to as "No. 2" because it was tabled in this Parliament before the Scottish Parliament (Elections etc.) (Amendment) (No. 3) Order 2001, which was correctly grouped with the other regulations that we recently considered because they all relate to the register of voters.

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I turn to the question raised by the noble Baroness, Lady Carnegy. I am advised that the earlier amendment order, which dealt with a completely different matter, was not at all concerned with the election timetable. That is why it was amended by the Scottish Parliament. The subject matter of the orders is a reserved matter.
I hope that, with those elucidations, the House will agree to the order.
Baroness Carnegy of Lour: My Lords, that means that the same order was amended by the Scots Parliament in relation to a devolved matter and is now being amended in this Parliament as a reserved matter. Is that what the Minister is saying? It is rather interesting that the two Parliaments can both amend the same order.
Baroness Ramsay of Cartvale: My Lords, that is my understanding; if I am wrong, I shall write to the noble Baroness and put a copy of that letter in the Library. The Explanatory Notes state that the Scottish Parliament (Elections etc.) Order 1999 was amended by the Scottish Parliament. My advice is that that amendment dealt with a completely different matter and was not concerned with the election timetable. My understanding, from my advice, is that what the noble Baroness said is correct.
On Question, Motion agreed to.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.3 to 8.35 p.m.]

Criminal Justice and Police Bill
House again in Committee on Clause 2.
Baroness Buscombe Baroness Buscombe moved Amendment No. 9:
Page 3, line 7, at end insert "or produce his warrant card for inspection by the person to whom the notice is given"
The noble Baroness said: In moving Amendment No. 9, with the leave of the Committee I shall speak also to Amendments Nos. 13 and 15. This group relates to the giving of false information and particulars in relation to penalty notices and related procedures.
Amendment No. 9 is a straightforward, simple amendment which is designed to bring some flexibility into the system. It is a probing amendment which seeks the opinion of the Minister on whether or not a police officer, out of uniform and witnessing an offence, must stand by and ignore the offence because of the clothes he happens to be wearing.
We on these Benches believe that it makes sense to allow an officer who may, for example, be active in the line of duty but for surveillance reasons be in plain
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clothes, to apprehend an offender as long as he or she is able to produce their warrant card for inspection by the person to whom the notice is given.
At the risk of repeating myself, we support the principle behind the fixed penalty notice system for some minor offences. However, it is the practical implications of invoking the on-the-spot fine that concern us. Indeed, many of our amendments in Part I focus on the hows and wherefores on behalf of our over-worked, under-resourced but nevertheless superb police force which, frankly, deserves unreserved praise for its work. We appreciate that Part I is supposed to help them in their fight, on our behalf, against crime.
We need to bear in mind the many situations in which officers find themselves where it might be possible to give a penalty notice. In many of those situations, the offender or, more likely, offenders, will be drunk, disorderly, possibly abusive and uncontrolled in their overall behaviour. What chance then that they will co-operate with the police, give their correct details and go quietly on their way? I would say, "Slim chance". Indeed, having read the draft guidance to the police on penalty notices for disorder sent to my honourable friend in another place, Oliver Heald MP, on 26th February 2001, I wonder whether we are almost wasting our time debating these points. The proposed exceptions to the use of on-the-spot fines are so extensive and, in many cases, rightly so, that they may prove to be a big non-event, which is often the case when Prime Ministers come up with off-the-cuff big ideas that bear no relation to reality. Part 1 seems to come from the quote by the Prime Minister of 5th July 2000,
"There should be on-the-spot fines for those people who engage in disorderly conduct. Summary justice, on the spot, is the essence of the proposal".
Of course, there is the alternative of taking the offender to the police station. But in using that argument, as I suspect the Minister will, is the on-the-spot fine going to be a viable proposition in practice? Our belief is that, without the threat of a further offence committed if the person fails to give the correct details, the answer is no. That is why Amendment No. 13 is important. It provides an express deterrent against the provision of false information in relation to the name, address and date of birth of the person to whom the penalty notice is given.
As I have already said, the police officer concerned will be dealing with a tough situation. No matter what any code of practice or guidance notes issued under Clause 6 may say with regard to the steps the police officer must take to ensure that the information given by the offender at the time is correct, in practice it is going to be extremely difficult to achieve results without the threat of a further offence hanging over the offender, drunk or otherwise. I beg to move.
Lord Brennan: Earlier I commented to the House that it is extremely important that the fixed penalty system should be capable of effective enforcement. I speak to Amendment No. 13, for which I have some sympathy. If there is no effective way of ensuring that

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people do not undermine the system by giving false information, the fixed penalty system will be gravely damaged. I invite the Government to give sympathetic consideration, not just to another fixed penalty offence but to a criminal offence of not properly complying with the fixed penalty system.
Lord Phillips of Sudbury: I rise to speak to Amendment No. 15 in this group. The amendment seeks to require the formalities in connection with the giving of fixed penalty notices to indicate clearly to the person accused, if that is the right expression, how the elements of the specific offence are satisfied in a way which is compatible with Section 9 of the Criminal Justice Act 1967. That provision deals with proof by written statement.
The object of this exercise is simple. It seeks to ensure that notices when given are compatible with one of the linchpins of the criminal justice system. It will be obvious to the House that many of those who will be involved in these offences will not necessarily understand how their behaviour constitutes the alleged offence. There will be many suspects who do not seek legal advice. I would say that the majority will not. Others, despite the scepticism of the noble Lord, Lord Brennan, will have literacy, language and learning problems, although there will be many who do not. Therefore, it makes sense to clarify exactly how they are implicated. The amendment seeks to do that.
8.45 p.m.
Lord Davies of Oldham: I shall address the three amendments in the group separately. I begin with the proposal in Amendment No. 9, moved by the noble Baroness, Lady Buscombe, that plain clothes officers should be able to give penalty notices for disorder. We do not believe that it is appropriate for plain clothes officers to issue penalty notices.
An essential part of the concept of the penalty notice scheme, and part of its usefulness, is that the action is taken by a uniformed officer who is visible and public. Such visibility would be reduced if the officer was in plain clothes. In addition, the giving of fixed penalties is a role clearly associated in practice with that of a uniformed rather than a plain clothes officer. It is a formal offer of the opportunity to discharge liability for conviction. Although clearly that is not a charge, if the offender were to be charged and went to the police station, this would be done by a uniformed officer.
I do not believe that the extension of the power to give penalty notices in that way would be appropriate. However, recognise one part of the force of the contribution of the noble Baroness; namely, that we would not want to render the plain clothes police officer powerless when he is witness to an offence. He will still be able to arrest or report for summons. The individual would then be taken to the police station where a uniformed officer would issue the fixed penalty notice. The contention behind the Government's position is clear. Fixed penalty notices are important documents and it is important that they should be given by an officer in uniform or at a police station in order to emphasise their importance.
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I turn to Amendment No. 13. We recognise that correct identification details will be essential to the efficient operation of the new system. I recognise the contribution on this point made my noble friend Lord Brennan. We are not so naive as to believe that every offender engaged in disorderly or antisocial behaviour will volunteer correct information when asked. It is for that reason that we have built in a range of safeguards to deal with that potential problem. We believe that such safeguards make the creation of a new offence envisaged in the amendment unnecessary.
First, the Bill includes a power for the Secretary of State to issue guidance to the police about the issue of notices and the exercise of discretion under the new scheme. We intend to issue such guidance making clear that penalty notices should not be issued when identification is in doubt and that powers are available under the Police and Criminal Evidence Act to arrest offenders and take them to a police station for proper identification to be established.
Secondly, we believe that the deliberate telling of a lie to a police officer in those circumstances could be charged as an offence of wilfully obstructing a constable in the execution of his duty under the Police Act 1996.
Thirdly, if a penalty notice is completed with false particulars of the offender, those may relate to a person completely unconnected to the offence. If so, the first that person is likely to know about it is when he receives a notice informing him that a fine has been registered against him. We have included special provision in Clause 10 to deal with such a situation. Briefly, a default court considering the case will have the power to adjourn to allow the claim that the named person did not commit the offence to be investigated. It will then have to accept the claim unless the contrary can be shown. The court also has the power to set aside the fine in the interests of justice.
The fourth safeguard is against the possibility that a juvenile offender falsely claims to be over 18 and in consequence is issued with a penalty notice. We believe that in those circumstances the notice would be void, and provided the offender was informed of that and why, and any payment returned, it would be possible to deal with the juvenile for the offence in any way that would have been possible had the notice not been issued.
We believe that those various ways of handling the provision of false identification evidence are sufficient to deal with the problem to which noble Lords have alluded, and that the creation of a new offence is therefore unnecessary. If, as I hope I have shown, sufficient remedies already exist to cope with false personal details, which we do not deny could be a factor in the new arrangements, there is no need to create yet another offence to deal with the problem. I am afraid, therefore, that we are not able to accept the amendment.
Finally, I turn to Amendment No. 15, spoken to by the noble Lord, Lord Phillips. The amendment seeks to require a police officer issuing a penalty notice to provide detailed information about why he says that

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the recipient of the notice has committed the offence in a form which would be admissible in court under the Criminal Justice Act 1967 as oral evidence given by the police constable who issued the notice.
We do not believe that that is necessary. The information about the offence to be given under Clause 3, as presently drafted, should be sufficient to inform the penalty notice recipient of the specific offence he is alleged to have committed.
If after considering the matter the person receiving the notice does not accept that the offence is committed, he is free to opt to go to court. If he does so, he will be prosecuted in the normal way with the full protection of the criminal law, including the Criminal Justice Act 1967.
We do not therefore believe that it is necessary at this stage, when the notice is issued, for this level of detail to be provided. I am therefore unable to accept the amendment.
Lord Brennan: Before my noble friend sits down, perhaps I may again raise the question of Amendment No. 13 and invite those who advise him to consider the following two points between now and Report stage.
First, I fully accept the range of alternatives that he mentioned in relation to the failure to give proper information. However, when one introduces a new system into society people will ask obvious questions. One obvious question is, "What will happen to me if I don't give the right information?". The four alternatives might be considerably complicated for the ordinary yobbo in the street, with whom we are apparently dealing.
Secondly, to the best of my recollection, a fixed penalty notice for a parking offence contains an express provision stating that if one does not give the correct information a particular criminal offence has been committed. If we are to introduce the concept of fixed penalties, could those advising the Minister take into account that there should be consistency in the working of the system?
Lord Davies of Oldham: I understand the force of the arguments presented by my noble friend. He is right in saying that the new system will throw up issues which we need to consider in advance of implementation. I believe that we have had due regard to the scenario he has depicted. I recognise that the parking fine notices are in a different form and contain a definition of the circumstances in which fixed penalty notices will be implemented. We shall certainly consider the points he has raised.
Baroness Buscombe: I listened to the Minister's response to our Amendments Nos. 9 and 13. In relation to Amendment No. 9, I do not understand why it makes a difference whether or not the officer is in uniform. I hear the Minister's point that if the officer is in plain clothes he can arrest that person and take him to the station, but I do not understand the
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logic behind the provision. Why does the fact of whether the officer is or is not in uniform make a difference to whether an offence can stand?
In relation to Amendment No. 13, the noble Lord, Lord Brennan, took the words out of my mouth. I was grateful to the Minister for setting out the different safeguards, but although I have taken a long, hard look at the Bill through its various stages I found difficulty in finding them.
The system is new and many questions will be asked. Indeed, we are asking questions today about issues which had not previously occurred to us; for example, in relation to legal aid. Surely the Government will want to make it as straightforward and simple as possible for anyone to understand that providing false information carries with it a real sting in the tail.
Whenever I have received a notice for a parking offence I have always been aware of that sting in the tail; that if anything false is written, a criminal offence has been committed. In order for the provision to be effective, it is important that that should be on the face of the Bill. I believe that our amendment is clear and simple and much easier than trying to invoke all the different safeguards.
However, I hear the Minister's reply and his undertaking to consider the points that we have raised. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 10:
Page 3, line 8, leave out subsection (3).
The noble Baroness said: I have a brief, simple question in relation to Amendments Nos. 10 and 12. Why must a penalty notice be given only by an authorised constable at a police station when any constable can issue a penalty notice on the street? I beg to move.
Lord Bassam of Brighton: It is at the chief officer's discretion as to which constables should be authorised. We do not wish to fetter that, but the amendment, which I realise is a probing amendment, would do so. We believe that it is right operationally that the opportunity should exist for chief police officers to control the issue of penalty notices at police stations. They will do so through those who they authorise to issue them and they must give careful consideration to that.
We do not believe that it is an onerous provision. We believe that it is a sensible tool partly for managerial control purposes.
Baroness Buscombe: I do not understand the procedure. When the penalty notice is being issued on the street, the chief police officer has no discretion; so why is it suddenly different in the police station?
Lord Bassam of Brighton: It will be the case that the chief officer will want to be confident that the person

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issuing the ticket is more than competent to do so and has been properly trained for that. I am sure that that is an important part of the process in the police station.
Baroness Buscombe: I wonder whether I should have made this more than a probing amendment because I am not satisfied with the Minister's response. I shall not press the amendment, but I ask him to think carefully about this simple question: is it really consistent? On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 11 to 13 not moved.]
Clause 2 agreed to.
Clause 3 [Amount of penalty and form of penalty notice]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 14:
Page 3, line 21, at end insert—
"() The Secretary of State may, in respect of a penalty offence contrary to section 1(1) of the Criminal Damage Act 1971 (c. 48), specify the amount of compensation for which a person may be liable."
The noble Baroness said: I was incorrect in not moving Amendment No. 11, but I can pick up the point with Amendments Nos. 14 and 16 in relation to compensation. These are probing amendments and reflect our continued concern with the Government's will to include criminal damage as an offence leading to an on-the-spot fine. The point was raised earlier today by my noble friend Lord Cope of Berkeley.
As the Bill is drafted, there is no opportunity for a victim of criminal damage (where the fixed penalty system is applied) to receive compensation. The amendments would enable the Secretary of State to set a level of compensation that could be awarded to the victim in relation to the fixed penalty.
When the issue of compensation for victims of on-the-spot fines was debated in Committee in another place, the Government sought to reassure the Opposition that they will state in the guidance that where a person can be identified as a victim, no penalty notice should be issued. Further, the Minister of State made it clear that penalty notices should be reserved for cases in which the victims are unknown or are corporate bodies unlikely to seek compensation in minor cases.
This explanation for dealing with the important question of compensation tells me that it is an afterthought prompted by a diligent Opposition, rather like when the little matter of whether or not penalty notices attracted a criminal record was raised by Her Majesty's Opposition at Second Reading in another place. Clearly, the Government were not sure.
We are pleased with the direction in which the Government are heading with regard to compensation. However, we also believe that their intention to exclude from the fixed penalty route all cases where there is a known victim is fundamental and should therefore be on the face of the Bill. As ever with this Government, far too much that is fundamental to the effectiveness of the legislation is being left to
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guidance notes which may—I stress that word—be issued by the Secretary of State. That gives us no opportunity to debate the matter on the Floor of either House. I beg to move.
9 p.m.
Lord Windlesham: Before the Minister replies, can he tell me at this stage, or later in writing if it is not possible to respond now, whether there has been any consultation with Victim Support on the issue just raised by the noble Baroness? In putting that question I declare an interest as president of Victim Support.
Lord Bassam of Brighton: We are in sympathy with the idea that victims of criminal damage should not be denied the opportunity to receive compensation; indeed, we are determined to ensure that the penalty scheme does not do so. We believe that the best way to achieve the objective is to ensure that guidance is given to the police that, where a victim may wish to claim compensation, no penalty notice is issued in the first instance. Penalty notices should be reserved for those cases where the circumstances of the case suggest that compensation is unlikely to be sought. This could include, for example, victims who are corporate bodies that are known to be unlikely to seek compensation in minor cases. This is a matter which will require very careful study during the pilot phase.
This amendment would ask a great deal of a police officer dealing with such a case. He would have to evaluate the scale of the damage and assess whether it was likely to exceed the compensation payable under the penalty notice. It is very difficult to see how a figure could properly be set for compensation under such an arrangement. There would be a good deal of opportunity for disagreement and difficulty where the victim disputed a damage assessment, or believed that an amount fixed by the Secretary of State was inadequate in his particular case. We believe that the setting of compensation is properly a matter for the courts, and that our proposals to deal with this issue in guidance represents a balanced approach. They allow the police discretion to deal with minor offending swiftly without removing the expectation of individuals that compensation will be considered.
The amendment would also lead to additional bureaucracy and administrative difficulty. Systems would have to record victims' names and compensation amounts and be able to pay the appropriate sums to victims and account for them. We believe that if corporate victims or public authorities wish to discuss the application of the scheme to damage to their property, the crime and disorder partnerships provide an excellent forum for discussion at local level. We are in favour of victims of criminal damage receiving compensation if a court so decides, but we believe that the way to achieve that is by guidance to the police about the issue of tickets, not by the complex means of building compensation into the scheme. For those reasons we cannot possibly accept the amendments.

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To pick up the question asked by the noble Lord, Lord Windlesham, we have not consulted Victim Support about issues of compensation. Obviously, we shall be more than happy to consult that body before we issue the guidance. The noble Baroness complained that the Government placed too much emphasis on codes of practice and guidance. I recall that that was an argument which my party deployed when the House considered important pieces of legislation such as the Police and Criminal Evidence Act. I believe that that Act can be described as famously important for its many codes of practice and guidance. Ultimately, we accepted that piece of legislation in good faith. We believe that those codes of practice and guidance have served very well the police and also those who are the subject of charges and allegations. There must be a degree of trust in these matters, but guidance needs to be subject to very careful consultation.
Baroness Buscombe: I thank the Minister for his response to my amendments. I am disappointed. The question of compensation is so important. I believe that it is an afterthought but it should be on the face of the Bill. The Minister said that codes of practice had worked well. If the noble Lord says that when in opposition his party advanced a similar argument, my response is: why not implement it in government? I shall not press the matter and, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
Clause 3 agreed to.
Clauses 4 and 5 agreed to.
Clause 6 [Secretary of State's guidance]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 17:
Page 4, line 23, leave out "issue guidance" and insert "by order issue a code of practice"
The noble Lord said: Amendment No. 17 takes us in more detail to the question of guidance to be issued by the Secretary of State. As my noble friend has just pointed out, the Bill provides that the Secretary of State "may" issue such guidance. Clearly, it should say "shall" because the Government rely heavily on it and have distributed copies of the drafts. However, I do not press that. We believe that this might be better issued instead as a code of practice; it would have slightly more force. Although we have not specifically suggested it in the amendment, it could be made subject to proceedings in this House and in another place so as to give more formality to the code of practice and, hence, make the position clearer if the policeman is thought to have gone outside the guidance in the course of issuing a particular penalty notice.
I believe that inevitably the guidance will be a little vague in some respects. One sees that by looking at the draft guidance. Although it is obvious that those concerned have done their best, there will be matters of judgment in it. What is the legal position if a policeman is thought to have gone outside the guidance in the
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course of issuing the penalty? Clearly, the matter can end up in court, but is the court entitled to take account of the guidance which the Home Secretary has given?
The other four amendments in the group all relate to more detailed points on the guidance. Amendment No. 18 suggests that the constable's witness statement should be covered in the guidance as to the form, length and kind of detail that is required. That is obviously important if the matter does not finish with a penalty notice but goes on to become a court case. It could also be important for the person concerned when deciding whether or not to go on to a court case. If there is a powerful statement of case against him—an "open and shut" case, as it were—he would obviously be best advised to settle there and then at penalty. If there is not, he might be best advised to go to court and argue about the matter, particularly given that the standard of proof required is higher against the Crown if the matter goes to court.
My noble friend Lord Windlesham asked whether or not the individual will have legal advice. We can no doubt get an answer to that question in due course.
Amendment No. 19 concerns whether or not the constable is to take account of the apparent means of the individual concerned to pay the penalty specified. That will make a difference because some people obviously would readily pay a penalty and might accept it as part of life's rich pattern, in the way that people accept parking fines. Every now and then the best of us gets caught for a parking fine of one kind or another and one has to cough up and go ahead. Given the amounts that might be involved, it is not so easy for everyone to do that.
Amendments Nos. 20 and 21 concern the seriousness of the actual cases which will be raised. In Amendment No. 20 we suggest that a penalty notice should not be issued when there is considerable risk to life and safety and so on. That matter is covered in the draft guidance. It would be reinforced if it was on the face of the Bill. It would also ensure that the guidance was not altered in the future.
There are two points covered by Amendment No. 21 which relate to seriousness. Paragraph (a) states that where there is a significant risk of exacerbating the disorder a penalty notice should not be issued. Imagine an awkward situation in the street, maybe late at night—which after all is what all this is about—with disorderly behaviour going on. The constable suddenly produces a pad of penalty notices and starts waving it about and saying, "Hey, you there in the T-shirt. What is your name?" I have very little experience of this; the Minister may have more experience of these matters. The officer attempts to identify the individual concerned sufficiently to write down the particulars. It will not necessarily be easy at two o'clock in the morning with a load of drunks all over the place actually to carry out this procedure. That is particularly so if one starts saying, "My name is Mickey Mouse and I live all over the place" and so on, or "I live on the third park bench from the left", which is apparently sufficient for the electoral register

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these days. That is a point which constables will need to bear in mind, and maybe we should state it in the Bill.
Obviously, none of us wants to diminish the opportunity for restorative justice and reparations which we have discussed on other occasions. All these amendments deal with the seriousness of the offences which will be covered by these penalty notices. We know that the offences will not be frightfully serious.
There is one matter about which I have some doubt regarding the penalty notices. Charles Clarke, the Minister of State in another place, said in Committee that these penalty notices come below a caution in the scheme of things. A caution goes down on one's criminal record. It is a stage below that. The Home Secretary appears to have the view that they come between a caution and a court case—actually being taken to court and fined by a court.
The noble Lord, Lord Thomas of Gresford, talked about the penalty notice being a soft option by comparison with a trial. That is obviously true, but is it a soft option by comparison with a caution, given that the penalty notice does not go on the record whereas a caution does? Financially it is not a soft option, but in legal terms the position is a little more confused. This is, as I say, a question of the seriousness. We know that these notices will not be used for very serious offences. We think it might be better to write the offences covered by these types of amendment on the face of the Bill. I beg to move.
Viscount Goschen: Now that we are on the theme of procedures, I wonder whether the Minister would be good enough to drop me a line—and perhaps copy it to other Members of the Committee—giving an answer not only to the question raised by my noble friend Lord Windlesham about legal aid but also about the procedural questions that I raised in connection with Amendment No. 2. I think that I am justified in raising those matters at this stage because they all have to do with the procedure of what actually happens once the offender has been identified by the police and a decision is being made whether to issue a fixed notice penalty.
9.15 p.m.
Lord Brennan: I am a little concerned that so little enthusiasm has been displayed in the Committee with regard to these amendments. Aside from the effective enforcement of fixed penalty notices, the other critical part of making them effective is that there should be an effective system for the police to apply them across the country. As I understand the Bill, the amendments are directed at the clause that seeks to establish such a system.
Although the first amendment, Amendment No. 17, appears to be only a form of words, it may well be a significant form of words. The Police and Criminal Evidence Act introduced the idea of codes of practice. Whether they were intended that way or not, years on, lawyers certainly regard them as having special legal significance and hence the public might regard them as
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more significant than mere guidance. I invite the Government to take seriously into account the presentation of the guidance to the public.
If the noble Lord, Lord Cope, will forgive me, I shall deal briefly with Amendments Nos. 18 to 21 by saying that they are either overly bureaucratic or too nebulous, but that is meant gently and not over-critically. The far more important question concerns what goes into the guidance itself. If the Committee will allow me, I wish to deal with three aspects of it. The first is the preparation of the guidance and how it works; the second is implementation; and the third is review. The amendments provide a convenient opportunity to mention those three points.
First, with regard to preparation, it is absolutely essential that the guidance is produced in co-operation not only the with Association of Chief Police Officers but also with the Police Superintendents Association, the Police Federation and everyone who will be practically involved in applying it. In addition, there must surely be training for police officers as to the way in which they are to apply the provisions. Issuing them with a guidance booklet is not enough. I have a final point on preparation. If the Bill eventually becomes law in this Parliament or the next, it will be the subject of major media interest. How will it work? Will there be consistency? Can we be sure that it is fair? The document to which everyone will look is the code of practice or guidance. Therefore, I think that preparation is very important indeed.
Secondly, I turn to implementation and identify one serious caution that I have and introduce one serious problem which the Government may face. I ask Members of the Committee to look back to Clause 1 of the Bill. As I sought to indicate at Second Reading, the offence under Section 5 of the Public Order Act—threatening, abusive or insulting words or disorderly behaviour—is commonly associated with a racial motive. I brought up that matter at Second Reading. I realise that the draft guidance is very much in draft but I found, with a little dismay, that there is no reference whatever in that document to the fact that that offence, if racially motivated, cannot conceivably be properly met by a fixed penalty notice.
This is serious stuff. The BNP and similar organisations will quickly determine how the law will work. A police officer faced with such people should not be in the predicament of having to decide whether to apply a notice, let alone the victims of such racial abuse. Many of us involved in the criminal law know that such threatening behaviour is often part of a process of demoralisation of ethnic communities living in a majority white community, and sometimes vice versa. That is my caution.
I shall now turn to a problem. A drunken farm labourer in a rural community will earn far less than someone who has just got drunk on champagne in the City. Each breaks a window and abuses a policeman. Is the fixed penalty system going to be uniform in its amount in relation to the offences involved? If not, how are distinctions to be drawn? Given the historical experience of the experiment in unit fines, which was

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designed to reflect the offender's capacity reasonably to pay within his income, it would be unjust, culpable though people who engage in misbehaviour are, if someone from a poorer area was faced with the same penalty as someone from a more affluent background. That is a very difficult problem.
As I understand the guidance, it will be for the Secretary of State to advise the police on setting the levels of fixed penalties in their local areas. The public will readily seize on inconsistencies in the way that this is applied.
Finally—noble Lords have been most patient—I refer to review. This is a completely new venture in the criminal justice system. The objective of the guidance, as set out in Clause 6, is said to be,
"with a view to encouraging good practice in connection with the operation of",
the fixed penalty system. I invite the Government to put into the code, by way of codicil, rider or other method, that within a given time—but within a relatively short time of, say, 12 to 18 months—it will be made the subject of a full review and the results of that review made public.
All my points are designed to help to make the system work well. To that end, Clause 6 is central to the Bill.
Lord Carlisle of Bucklow: Before the noble Lord sits down, I take his point as regards the different effects of fixed penalties on different people. However, if a fixed penalty system is introduced, is it not inevitable that the amount of the fixed penalty is bound to be uniform? That is not same with regard to fines, to which the noble Lord referred. However, surely the inevitable consequence of fixed penalties is that the amount must be same, whether the penalty is levied from a wealthy young man in the City or from a farm labourer in a poor area.
Lord Brennan: The example of parking offences suggests that consistency in this regard is readily achievable because, for most people, if they can afford to run a motor car they can afford to pay the basic fines. However, the point I am bringing to the attention of the Committee is that if fixed penalties are logically forced to be the same, then we shall have this potential injustice. I do not necessarily agree that the fixed penalties should be the same. I know that it will be extremely difficult to apply, but at what level should the penalty be set? Should it be set at the level which best accommodates the richer offender or the lowest common denominator that affects the poorest? A problem will arise at each end. I introduced the subject as a problem, but I did not offer a solution.
Lord Davies of Oldham: We have had an interesting debate on an extremely important part of the Bill. First, perhaps I may give an assurance on behalf of my right honourable friend in response to the noble Viscount, Lord Goschen, and the noble Lord, Lord Windlesham, whose earlier contribution was noted very carefully. Of course we shall write to noble Lords
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who raise factual issues which cannot be answered satisfactorily during the course of the debate. We shall also ensure that that information is made known more generally.
The aim of issuing guidance, which is the main concern of these amendments, is to help the police and others to operate the scheme fairly and consistently, a point emphasised in the contribution made by my noble friend Lord Brennan. This will ensure a swift and immediate response to disorderly offending, while at the same time saving police time and bureaucracy. As Clause 6 suggests, guidance may help the police in the exercise of their discretion under the scheme and on the issuing of notices and encourage good practice in the operation of the scheme.
The Government believe that the Secretary of State would be able to issue guidance to help the police and others with the operation of the new penalty scheme without the power currently contained in Clause 6 but, because the scheme includes a number of discretionary elements, we felt it advisable to include a specific power to issue guidance which gives an indication of the areas which any such guidance can be expected to cover. As the noble Lord, Lord Cope, recognised, the Government have made available an outline of the guidance to the police, although this clearly needs further development with those most involved. It is, of course, draft guidance at this stage and is subject to further development and clarification.
I am sure that the need in a disorderly situation not to make matters worse by the issue of a notice—or, indeed, to issue a notice where the offence involves risk to a person's health or safety—will certainly be included in the guidance. Similarly, we shall ensure that some guidance is issued to the effect that it would not be appropriate to issue a penalty notice to someone who clearly does not have the means to pay. I hope that this response meets some of the points raised by the noble Lord. Lord Cope.
Amendment No. 17 seeks to replace this concept of guidance with a statutory code of practice. The Government's view is that this would be excessive and unnecessary. Statutory codes of practice are used, for example, in the regulation of coercive or determinative powers. Examples can be found in the Police and Criminal Evidence Act where a statutory code is necessary to set out the detailed rights of persons in police detention or of those stopped in the street and searched.
The new penalty notice scheme is entirely different. It contains no coercive powers. It merely offers an offender a way of discharging liability to conviction by paying a penalty. The offender's rights are completely preserved in that he is equally free to have his case heard by a court in the same way as he would have had if the scheme had not existed. In these circumstances, a statutory code of practice appears to be entirely unnecessary. Guidance issued by the Secretary of State is the time-honoured and appropriate way to proceed when new arrangements are introduced.
Of course, I recognise that my noble friend Lord Brennan has cautioned us about a range of important issues that need to be considered before the scheme is

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implemented and which should be included in the guidance. We take on board the points he made. The point that he raised in regard to the issue of race is particularly pertinent at a time when it is at the forefront of public concern. We also recognise the value of his suggestion that such guidance should be subject to review from time to time, and certainly to an early review against the background of a new scheme in British justice being developed.
In relation to Amendment No. 18, Clause 3 of Chapter 1 states that a penalty notice must,
"state the alleged offence",
and,
"give such particulars of the circumstances alleged to constitute the offence as are necessary to provide reasonable information about it".
We do not believe that it will be necessary when a penalty notice is issued to serve a separate witness statement with it. The information on the penalty notice itself will be sufficient to enable the recipient to take an informed decision on whether to ask for a trial or to pay the penalty. If he contests the penalty notice in court, the prosecution process, including the service of statements, would proceed in the normal way.
We believe that the information that is already required to be included in the penalty notice under the provision in Clause 3 is sufficient for the purpose of the notice. A requirement that the constable provide a statement in every case, as appears to be assumed in the amendment, would considerably reduce the saving of police time that we hope to bring about by this measure. In the absence of such a requirement, the amendment serves no purpose. Therefore, the Government do not accept the amendment but recognise the value of this debate to the development of our thinking on the guidance to be issued.
9.30 p.m.
Lord Thomas of Gresford: The more I listen to this debate, the more I realise the difficulties that will face the police officers who are supposed to put the fixed penalty scheme into operation.
If we were dealing with a situation in which a police officer was going round with a pocketful of notices to hand out to sober, quiet people who had thrown a stone or a firework in the street, that would be one thing. But we are not. We are dealing with a situation in which any constable on the street, who is not authorised—I take the point made by the noble Baroness—by the chief officer of police to issue notices in a police station, is faced with a drunken or violent person and attempts to issue him with a penalty notice.
From the police officer's point of view he is exercising a "reasonable belief'. That is all. He does not have to satisfy himself beyond that standard. He must simply believe that the person to whom he is issuing the notice has committed an offence. With a drunken and violent person he has to stand and write out the notice. During that time the person's friends, indeed his enemies, may all gather round and carry out a great disturbance because the policeman is standing there writing out the notice ready to hand to him. In
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that time, the police officer not merely ascertains the name and address of the drunken or violent person to put down on his notice; he also has to give the person some idea of the basis on which the notice is being issued. Then comes the amusing part. The Minister said that the person who receives the penalty notice—I am talking about a notice issued in the street—makes an "informed decision" as to whether to accept the penalty notice or whether to demand a court hearing. That is cloud cuckoo-land, is it not? The drunken person—one of those included in the schedule—
Lord Bassam of Brighton: The noble Lord is peddling a misconception; namely, that the person who is in receipt of the fixed penalty notice makes the decision there and then as to whether he will or will not contest it. That is not the intention of the legislation. It will not work in that way.
Lord Thomas of Gresford: So the informed decision is to be taken the day after, when the person has no recollection of what happened the night before.
Lord Bassam of Brighton: The person has 21 days in which to make the important decision, whether or not he or she has a recollection of the event.
Lord Thomas of Gresford: In a situation in the street, any police officer newly out of police training school will have the power to issue fixed penalty notices. He has to fill out the notice regardless of what is going on around him and hand it to the person who is drunk or violent, who then has 21 days to make an informed decision as to whether to contest it. That is one situation. The other is that the man concerned has committed or, in the view of the police officer, may have committed an arrestable offence. So the police officer arrests him and he is taken to a police station.
The first thing that then happens is that the police officer must explain to the custody sergeant on duty why the man has been arrested. That custody sergeant has to take a decision as to whether to allow the charge, or whatever the technical expression is. One presumes that the notice is then written out—this is where the point made by the noble Lord, Lord Windlesham, arises. Before he takes his informed decision on whether to put his hand into his pocket and pay up, does the person concerned have a right to legal advice at that point? Do the codes of practice under the Police and Criminal Evidence Act 1984 apply to him in that situation; for example, the necessity for a custody sheet to be completed, as well as all the other safeguards that surround a person in that position? As the noble Lord, Lord Windlesham, asked, does he have a right to legal aid and the right to consult the duty solicitor before he decides what to do?
We then come to the point made by the noble Lord, Lord Brennan, with such force; namely, that, as the scheme is envisaged, there is no room for mitigation. There is no room for the question of the resources of the individual to be considered; he pays the fixed penalty. Presumably, that fixed penalty will not differ throughout England and Wales between one council

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area and another, depending on the gross earnings or level of average earnings in a particular district. Surely it will be a fixed penalty all round. The personal circumstances of the individual will not be taken into account; nor, indeed, any mitigation for the fact that he is drunk—such that his wife has left him, or whatever, or that he was racially insulted in a public house. None of those factors can be taken into account. He must face the penalty.
The more one studies the scheme, the more one realises how much it must be confined into a narrow set of circumstances. Is it not a matter of dressing up some new scheme just before an election? I respectfully suggest that the amendment be accepted.
Viscount Goschen: I should like to pick up one of the points made by the noble Lord, Lord Thomas. Clause 6 states:
"The Secretary of State may issue guidance—
(a) about the exercise of the discretion given to constables by this Chapter".
As I read Clause 2, which deals with penalty notices, it seems to me that there are two elements of choice in that a person to whom the opportunity is being offered has a choice as to whether or not to accept the fixed penalty route. However, Clause 2(1) states:
"A constable who has reason to believe that a person aged 18 or over has committed a penalty offence may give him a penalty notice in respect of the offence".
But what if, for whatever reason, that does not happen; and not because it will incite further aggravation? One can perfectly envisage the latter occurring if someone who was drunk and abusive was given such a penalty. It would be rather like an abusive footballer being given a yellow card, who then turns round and gives the referee grief, and subsequently ends up with a red card. Indeed, one can imagine such a chain of events.
However, if someone ends up in court without having been offered the opportunity of a fixed penalty notice for an offence that could be subject to such a penalty, he might be liable to pay four-times the fine that someone else who was offered the opportunity had to pay. Therefore, in giving this guidance, will the Secretary of State make it clear on what grounds the constable may not issue a fixed penalty notice? Indeed, if someone requests such a notice in a situation where it was not offered, will there be guidance as to whether or not that person can be offered one? If someone who perpetrated an alleged offence were arrested, taken to the police station and then told that he would be charged, one could well envisage a possible situation arising if that person happens to know about such penalties. The noble Lord, Lord Brennan, said that this scheme will receive a great deal of publicity in due course, especially by way of the tabloid media. Will it be open to the person who is going to be charged to request a penalty notice, instead of having to go to court?
Lord Windlesham: I do not wish to prolong the discussion, but does not this show what extraordinary
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difficulties will arise in administering the scheme across 42 police areas? As we have heard, there are two mechanisms. The Secretary of State can issue guidance. One must hope that within a police area the police force will try to achieve some sort of consistency. If we accept that consistency is a basic element of any system of justice—which it must be—this begins to seem almost impossible to achieve, does it not?
The noble Lord, Lord Brennan, mentioned an extraordinary range and variety of offending behaviour and the possible consequences. The situation in inner cities may be quite different from that in large urban conurbations. He spoke evocatively of the number of people who flood into Manchester at weekends. We should compare that with the situation in a quiet, prosperous residential area. Are there to be different levels of penalty according to the circumstances of the individual? There should not be. However, some of the comments that have been made seem to suggest that the scheme may have little, if any, consistency. The longer the debate continues the more unsuitable becomes the concept of a fixed penalty in situations involving drunken or drug addicted offenders who are often excitable and "guyed up" by those around them. Those situations may also be exacerbated by racial conflict.
How can the Government or any Minister compare such situations with the imposition of fixed penalties for parking fines and certain driving offences? On the whole there is consistency in the imposition of parking fines. Parking fines are willingly paid by a large percentage of those who incur them. However, to say that the imposition of fixed penalties is effective for parking fines and speeding offences and therefore one should apply them to disorderly conduct is to invent a chimera.
Lord McNally: I do not wish to add to the Minister's woe but I refer to a matter that the noble Lord, Lord Brennan, mentioned to which the Minister did not respond; that is, police training. It is clear that we are asking the police to carry out a different kind of policing. Is there built into the measure—or is it under discussion—provision for training to enable the police to implement the proposals? I believe that the noble Lord, Lord Brennan, asked for clarification on that point.
Lord Goldsmith: The debate has gone wider than the amendments. Therefore, I am encouraged to comment further. It seems to me that one either takes the view that this is a useful, additional way to deal with problems, which happens to be the view that I take, or one does not. If one takes that view it is important to recognise that police forces who are to exercise the powers will need to have operational discretion and that those in charge of police forces will need to have discretion to instruct their officers in a way which is appropriate for their area.
Having listened to the debate, I am concerned at the suggestion that the Committee should impose prescriptive guidance in what are essentially

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operational matters. The noble Lord, Lord Thomas of Gresford, mentioned an important issue. He asked what would happen if a police officer decided to impose a fixed penalty and was then confronted with more disorderly behaviour. I anticipate that chief constables and police officers will be aware of that possibility. An officer may do the only thing that he can do in those circumstances which is to arrest the person involved. Whether that is in the interests of the person who has committed the offence, others can decide. In those circumstances the offender is likely to face a more serious penalty. The police officer, if he has the opportunity, may point that out to him before events reach that stage.
What is the position of someone who wishes to put forward the circumstances of the offence in mitigation? It is important to bear in mind that a notice of this kind does not oblige the person to whom it is given to pay a fine. There is a choice to be exercised within 21 days, or perhaps even later, whether to submit to a trial and put before magistrates the circumstances relevant to the offence.
9.45 p.m.
Lord Thomas of Gresford: The noble Lord will appreciate that in so doing that person opens himself up in serious offences to sentences of imprisonment and fines of four times the level of the fixed penalty.
Lord Goldsmith: That is what he is subject to at present. In the absence of the fixed penalty scheme, that is all he will be subject to. I do not regard that as an answer.
It comes back to this issue. One either considers it a useful additional weapon in the armoury to maintain law and order—there will be cases where it is wholly inappropriate; that much is clear—or one does not. I simply say in relation to these amendments that too much prescription will undermine the operational freedom that police forces will need in order to make the system work.
Lord Davies of Oldham: The only contribution to the debate to which I violently objected was the suggestion by the noble Lord, Lord McNally, that it was my time of woe. I was enjoying the debate and learning from it. I enjoyed even more the contribution from my noble friend Lord Goldsmith. He presented, but in a more erudite and accurate form, the arguments I would have sought to deploy on the issues raised.
Of course these are operational matters in one obvious respect. There are certain circumstances where, as the noble Lord, Lord Thomas, accurately defined, it would be beyond belief that the policeman would calmly issue a fixed penalty notice. The noble Lord referred to drunkenness. Drunkenness is often attended by violence. We would all expect our police officers to be able to protect themselves effectively without incurring unnecessary risk to themselves. In those circumstances the police officers would either effect the arrest themselves or ensure, with assistance, that the individual reached the police station where the
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matter could be dealt with. If the offender were drunk, that might occur after a period of sobering up. If an individual had been violent, some constraint would be attached so that the policeman was able to discharge his responsibility without threat to himself.
These are fixed penalty notices with the same penalty attached. It is not expected that an enormous range of potential punishments will be attached to it. The fixed penalty means exactly that. If you are caught, that is what you will get. Of course there are elements of unfairness. There are massive unfairnesses in parking and speeding fines. Someone may cost the community several thousand pounds by his illicit parking, but he receives the same fine as someone whose parking in the wrong place has caused minimal trouble to his fellow citizens. That element of injustice applies to any concept of fixed penalty.
It is clear that this approach is being extended to a different range of narrowly defined and lower scale offences. I am not sure whether I am expected to exercise the judgment of Solomon as regards where the offences lie in the list of my right honourable friend the Secretary of State or my dear friend the Minister of State. However, these are defined as offences which can appropriately be dealt with on most occasions in the judgment of the police officer at the point at which the offence is committed. That must be a limited range. That is why the issue is presented in these terms.
I am grateful to my noble friend Lord Goldsmith. He identified that the issue must be tackled with appropriate discretion. I bear in mind his point, emphasised by the noble Lord, Lord McNally, that training will be necessary. Our police forces will be faced with a new situation. We all recognise that this is a new development. Appropriate training will be needed against the background of the guidance issued by the Secretary of State. I assure your Lordships that that is envisaged.
Viscount Goschen: Can the Minister answer my question?
Lord Davies of Oldham: I am sorry. I thought that I had answered all the points that had been raised. I said that if there was anything that I had not covered, I would ensure that I wrote to the noble Lord concerned. If there is a particular question that the noble Viscount asked that I have forgotten, I shall be only too pleased to respond.
Viscount Goschen: The debate has emphasised that, while there are considerable advantages in theory to the idea of fixed penalty notices, there is a great deal of detail that needs to be probed through, particularly the points raised by my noble friend Lord Cope and the noble Lord, Lord Thomas. The noble Lord, Lord Goldsmith, invited us to accept that we cannot be too prescriptive in the legislation but it will be all right, on the night. There are some important questions of detail.
I apologise for having intervened three times on the amendment. I was looking for an answer, not on the first set of questions but on the second set about an

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individual who went to court and told the magistrate that he had not been given an opportunity to get the discounted fare of the fixed penalty. If he was issued with a fine, which could be four times the fixed penalty, would that individual have any redress against the court? Could be use that defence to get the fine lowered?
Lord Davies of Oldham: The categorical answer is no. It is for the police officers concerned to decide whether to issue a notice. There can be no subsequent plea bargaining in the court with the individual claiming that they never had the chance to pay the fixed penalty. If the individual did not take advantage of the opportunity to respond to a fixed penalty notice when it was applied to him, the fault would rest with him. If he was involved in an offence for which a fixed penalty was not applicable, he could not plead to the court that the offence was applicable under the framework.
Viscount Goschen: I apologise for troubling the Committee further, but with the greatest respect, that was not the question. Let us suppose that next year, when the Bill has received Royal Assent, I went into the street and let off a firework, which is clearly covered under Clause 1 as an offence for which a penalty notice can be served, and was arrested by the police and not offered the opportunity to pay the fixed penalty. I would have done nothing different from another individual who had committed a comparable offence. Would I have to pay the full fine that could be imposed by the court, or could I argue that I should be allowed to pay only a quarter of it?
Lord Davies of Oldham: I am clearly not going to satisfy the noble Viscount on that point in sufficient detail this evening. I shall have to write to him about it.
Lord Cope of Berkeley: As has been pointed out, we have had a much wider debate than I anticipated when I tabled these modest amendments. I hope that our contribution will be helpful to those who will work on the guidance.
The original question was whether we should have a code of practice or guidance. The Minister responded with the same phrases that were used by his colleague in another place when similar points were made. The Government believe that codes of practice should be used specifically to safeguard the rights of individuals. However, the rights of individuals are being safeguarded by the opportunity to go to a court. I suspect that the Minister's response to my noble friend will be that, when one appears in front of a court, one can argue in mitigation all types of circumstances. Unlike a police constable, the court is able to vary the level of a fine or other penalty from nought to whatever the maximum may be in accordance with the pleas that are put before it. I believe that that is a genuine way in which flexibility exists in the system, even though the penalty for different offences will be fixed under Clause 3.
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I believe that we want to give the police all reasonable help in their very difficult task. However, we are also all concerned that such help should be practicable and workable. There will be difficulties in connection with this scheme, particularly during the early stages. I hope that the idea will work. I believe that we all want to see it work if it helps the police to do their duty and helps to protect the public.
However, we must try to tease out the details of what we seek to achieve through this measure. Clearly it will not provide an easy, "snap" solution to the difficult problem of the disorderly behaviour of people over the age of 18. The measure applies only to people over the age of 18. By definition, it applies to people who are likely to be drunk, and so on, and often such situations will arise in the small hours of the morning or late at night in difficult circumstances for the police.
I hope that we have made at least some contribution towards ensuring that the guidance makes the provision as workable as possible. Of course, as the noble Lord, Lord Brennan, said, it will need to be subject to review. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 21 not moved.]
Clause 6 agreed to.
Clause 7 [Payment of penalty]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 22:
Page 4, line 36, at end insert "by recorded delivery".
The noble Lord said: In moving Amendment No. 22, I shall speak also to Amendments Nos. 23 and 24. In earlier debates, we identified the importance of establishing the identity of an individual against whom a penalty notice will be issued. However, that will be very difficult, given that, unlike motor cars, people do not have licence plates with numbers on them that can be read and followed up—at least, not yet.
In Clause 10, provision is made for what would happen in the court if an argument arose as to whether the individual concerned was the person who committed the offence. In order to take into account such a circumstance, we have made some modest suggestions to try to improve the drafting, such as the use of recorded delivery. Various ways exist to attempt to show that a letter with payment was posted when in fact it was not; for example, by asking a friend to testify that he saw it being posted. However, there is a simpler way to ensure that those difficulties, at least, do not arise—that is, by using recorded delivery.
In Amendment No. 24, we also suggest that a person's last known address should be sufficient. The type of offender who will dodge penalties may make himself difficult to track down when it comes to giving notice. I hope that these modest suggestions will help to avoid some of the problems. I beg to move.
Lord Renton: These are relatively minor amendments compared with those which we discussed recently. However, I believe that they are practical and important. As it stands, if a person says that a letter

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was posted, that is a very vague notion. My noble friend's suggestion in Amendment No. 22 that it should be posted using recorded delivery is practical. I should have thought that the Government would welcome that. I have to say to my noble friend that I have a very small doubt about Amendment No. 23, which would use the word "send" instead of the word "give". There are various ways in which to move a letter. Using the word "send" is rather limiting. However, my noble friend may be right.
Amendment No. 24 refers to a person's "last known address". That is helpful because people move and the police do not necessarily know that. The best that can be done is to send a notice to the last known address.
10 p.m.
Lord Cope of Berkeley: If the word "give" were left in the Bill, the justices' chief executive would, either physically himself or through a representative, have to hand the notice to the defaulter giving notice of the registration. In practice, however, the notice will come through the post. That is why I suggested using the word "send" instead and proposed sending the notice to the "last known address" by recorded delivery.
Lord Renton: My noble friend may well be right, but we should perhaps bear in mind the fact that the word "give" is somewhat wider than the word "send".
Lord Davies of Oldham: I appreciate the good intentions that lie behind the amendments, which serve as potential aids to make the Bill more effective. Unfortunately, I am not sure that the Bill would be improved by them.
I turn first to Amendment No. 22. Subsections (3) and (4) of Clause 7 have a twofold purpose. First, they will ensure that people who make their penalty payments by post can rely on the letter having arrived in due course,
"Unless the contrary is proved".
If they can prove that the letter was posted, it would be for anyone disputing the fact of payment to show that it did not arrive in the usual way. Secondly, those subsections will ensure that claims to have posted payments are not accepted without evidence. We do not wish the provisions to be restricted to people who use only the recorded delivery system. If they wish to use it, that would be helpful but some people might prefer to use registered post or simply get a certificate of posting, which can be obtained free of charge from a post office. We regard each of those as adequate evidence of posting and of the date of posting. In each case, we think that it is right for the person to be able to rely on the presumption of delivery.
In other words, the burden of proving non-delivery should be borne in these cases by anyone seeking to assert that the fine has not been duly paid. It is important to ensure that people cannot simply claim to have posted a payment without any evidence to support that claim. However, when they can produce that evidence, they should be entitled to the presumption.
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Amendments Nos. 23 and 24 would be inappropriate. Clause 9(3) as it stands does not exclude the possibility of notice being sent to an offender's address but it does place on the courts the responsibility of ensuring that notice is given. We think that that is right. A registration is a serious matter and the responsibility must rest with the courts. Ultimately, whether notice has been given is a matter of evidence in the circumstances of any given case. I emphasise once again that I appreciate the intentions that lie behind the amendments but I am not convinced that they would improve the Bill.
The justices' chief executive must issue notices of registration at the last known address. That is the answer to Clause 24; that is, that the responsibility lies with the justices' chief executive.
The registration certificate issued under Clause 8 must include the defaulter's last known address, so that where there is notification it will be sent by the justices' chief executive. That will ensure that the notices are sent effectively, that there is proof that that is so, and the responsibility thus rests with the court.
Lord Cope of Berkeley: I shall reflect on that answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 7 agreed to.
Clause 8 agreed to.
Clause 9 [Registration of sums payable in default]:
[Amendments Nos. 23 and 24 not moved.]
Clause 11 [Interpretation of Chapter 1]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 25:
Page 6, line 21, at end insert "and the Chief Constable of the Ministry of Defence Police;"
The noble Lord said: Amendment No. 25 is a probing amendment. We want to look a little closer at which police officers from which forces will be empowered to issue the fixed penalty notices.
A number of police forces, apart from the regular forces, come under the purview of the Home Office. It is clear that officers of the British Transport Police will be able to issue fixed penalty notices and will have responsibility for specific offences such as trespassing on the railways. But in the Armed Forces Bill the Government are significantly extending the powers of the Ministry of Defence Police.
The intention is clearly that the force's role in relation to the wider community should be increased. That is a move not without controversy, as was clear in the debates on the Armed Forces Bill. I believe that it would be more contentious if the Ministry of Defence Police were empowered to issue fixed penalty notices to members of the civilian population who were nowhere near Ministry of Defence property and thought that point worth probing with the aid of this amendment.
Other forces, such as the Royal Parks Police and the Atomic Energy Authority Police, may also be included. If the Minister can tell us anything about the Government's policy in that regard, that too will be

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helpful. I should make it clear that I am speaking here specifically about the Ministry of Defence police force, not about the service police—the Royal Military Police, the RAF police and the marine equivalent—because their remits are within their respective services and it would not be appropriate to include them in this amendment. This is intended to be a probing amendment to draw out the Minister's thinking on this matter. I beg to move.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before putting the question on Amendment No. 25, I must stand part Clauses 9 and 10. The Question is that Clauses 9 and 10 be agreed to.
Lord Windlesham: We went over Clause 10 rather swiftly. I have a point I wish to make on it in relation to enforcement. We are right at the end of the first chapter of the Bill and I should like to leave this point with the Minister for his consideration. It relates to Clause 10 and the enforcement of penalty notices. Enforcement is likely to prove the Achilles heel of the whole scheme. Some information from Australia has just come to my notice and I hope that the Government will consider it carefully. In New South Wales the police have powers to issue on-the-spot fines for certain breaches of the Police and Public Safety Act. Those include failure to comply with a reasonable direction by a police officer and being in possession of a knife. The New South Wales debt recovery office recently carried out a survey which shows that very few people paid their fines, either in the time allowed or at all. Even when infringement notices were issued, only 6.1 per cent of the total were paid within the 28-day period allowed.
The published figures on fine defaulters for those categories of fixed penalties were 95 per cent of those who received a fixed penalty notice for the possession of a knife and 91 per cent for those who had refused a direction or order from a police officer. Those figures of non-compliance are simply astonishing. As we come towards the end of this part of the debate, perhaps I may ask a question. Does that not show once again that the whole concept of fixed penalty notices for offences of disorder, which are totally different in character to parking and driving offences, is such that the likelihood of them having the effect sought by the Home Secretary is minimal?
Lord Thomas of Gresford: Perhaps I too may raise a query under the same heading as that raised by the noble Lord, Lord Windlesham. I understand that the policy of the Bill is that a person who is served with a penalty notice will not have a conviction recorded against him. Consequently, unlike a caution, it will not form part of any criminal record kept in the criminal records office.
Let us suppose that a person is a defaulter. Would that then become something that is recorded against him in the criminal records office? What is the future position? If, for example, a person has 10 penalty
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notices for breach of Section 5 of the Public Order Act, will no record be kept of that? Is that not a matter which would come before a court at a subsequent time?
Lord Bassam of Brighton: Perhaps I may deal with the points raised by the noble Lords, Lord Thomas and Lord Windlesham, concerning fixed penalty notices. All I can say as regards the point raised by the noble Lord, Lord Windlesham, is that that is the Australian experience. Obviously, those figures are dramatic and interesting. I shall certainly want to see the evidence.
There are problems within the criminal justice system of recovering fines in any event, but compliance figures are far higher with fixed penalty notices which relate to traffic offences. I suggest that we need to build on the experience in that field. The fixed penalty notices will probably be comparable in terms of quantum. There will be a default court provision for the processing of fixed penalty notices. It will therefore be in people's interests to pay them. Experience and time will tell, but I would expect there to be a far higher compliance level in this country where there is more generally a history of compliance with such matters. I register the concern raised by the noble Lord, Lord Windelsham, and shall study the research with interest when I am presented with it. However, I do not share his gloomy prognosis.
I turn to the points raised by the noble Lord, Lord Thomas of Gresford. A record will be kept of a fixed penalty notice, but not in the same way as a criminal record. That record will be kept locally and the accumulation of FPNs on a regular basis will be known.
I see no reason why the accumulated number of notices cannot be drawn to the attention of a court where perhaps subsequently someone is in default of a fixed penalty notice because he has not paid it; or perhaps where someone opts not to pay the FPN and contests the issue in court. I see no reason why the record of there having been fixed penalty notices cannot be made known to the court. Obviously, we must study that matter closely and take careful cognisance of people's views.
I turn to the amendment which the noble Lord, Lord Cope, moved a few moments ago.
10.15 p.m.
Lord Burnham: Are we not discussing the Question whether Clause 10 shall stand part of the Bill?
Lord Bassam of Brighton: I concede the point.
Lord Burnham: The noble Lord seems yet again to equate parking offences and public order offences. Does he really believe that? Furthermore, he seems to believe that the British are more likely to pay up the FPNs than are the Australians. Why is that?
Lord Bassam of Brighton: I equate them in the sense of process and operation. As regards compliance levels here, there is a tradition of compliance particularly with fixed penalty notices—
Lord Burnham: But not in Australia.
Lord Bassam of Brighton: The Australian situation is the Australian situation. Clearly, the noble Lord, Lord Windlesham, has made an interesting point but it does not undermine the point that there is great relevance in having fixed penalty notices. The noble Lord's party supports the principle of them, and I am interested that that is the case given some of the hostile observations that have been made by Members opposite during the course of the debates. I understand and appreciate the importance of having a critical debate, but we need to concentrate our minds on ways in which we can make the provisions practical and workable. That is what we are trying to do in government.
We believe that the provisions are valuable and resist any effort to oppose Clause 10. We believe that over time fixed penalty notices will prove their value to the criminal justice system and make an important contribution.
Lord Carlisle of Bucklow: Like the noble Lord, Lord Windlesham, I am concerned about the possible effect of the proposals. In principle, I support what the Minister said about fixed penalties in cases of this kind because it helps to reduce the number of people who will have criminal convictions for the rest of their lives in respect of perhaps reasonably minor indiscretions at a young age.
However, if the effect is that more people go to prison for non-payment of the fine, the scheme will have failed. I understand that the comment of my noble friend Lord Windlesham was that where the system has been tried it has had that result. Therefore, can we be assured that the Government will keep a close eye on the matter? If it is shown that in practice the non-payment of fines causes a greater increase in the prison population than the existing law, the whole system of attempting to have a fixed penalty rather than a criminal offence for various matters will have failed. I hope that the Minister will bear that in mind.
Lord Cope of Berkeley: As to Clause 10 stand part, I cannot answer the question about the higher compliance rate in Australia. It is a good thing that the Australians are not regarded as a race; otherwise, the aspersions cast on those individuals might get the Minister into serious trouble, but it is an extremely good point.
As to the question of a record, the draft guidance states that where it is known that the alleged offender has been issued with a number of penalty notices for disorder offences within the previous six months, or a year, a penalty notice is unlikely to be a suitable response to the offence. It may be known to the policeman in the street who is about to issue a penalty. However, the guidance goes on to say that chief
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officers can obtain information which will enable local ticket office records to be checked for the purpose of deciding whether to issue a penalty notice for the current offence or to charge the alleged offender. In practice this will happen only if the officer has gone back to the police station to consult the records rather than in the street, but it throws light on the idea that no criminal record will exist. It is not a criminal record in the ordinary sense of the word, but it is a record of the penalties which will be available both to the police when making their decisions and also to the courts if the offender is charged. It is not quite true that there is no record and no penalty with repeat offences, unless the offender is ingenious enough to commit the offences in different jurisdictions, or follows a football team which travels, in which case it will be less easy for the police to trace the record.
Lord Thomas of Gresford: Before the noble Lord sits down, I wonder whether he is aware that the current practice in court is for a list of convictions and cautions to be produced when a person is sentenced. Apparently a third list of fixed penalty notices is to be produced.
Lord Bassam of Brighton: I am delighted that we have had more debate on this matter which has provided the opportunity for further clarification and new information. I take to heart the 'sensible observations of the noble Lord, Lord Carlisle. The noble Lord was kind enough to support fixed penalty notices, and I am pleased to see that support for them is growing within the Committee. The noble Lord is right to suggest that we need to keep under review such matters as the collection of fixed penalty notices and fines, and we undertake to do that.
As I indicated in earlier debates on this Bill, we intend to pilot these matters very carefully after detailed consultation. The guidance will be all-important as to the way in which the fixed penalty notice scheme operates. All of those points need to be taken into account very carefully when considering this particular clause stand part debate.
Clause 9 agreed to.
Clause 10 agreed to.
The Deputy Chairman of Committees: We return to Clause 11, Amendment No. 25. Amendment proposed: page 6, line 21, at end insert "and the Chief Constable of the Ministry of Defence Police".
Lord Cope of Berkeley: I shall not repeat the remarks I made prematurely a few moments ago. I beg to move.
Lord Burnham: As my noble friend said, there is here a degree of cross-fertilisation with the Armed Forces Bill, which is why I rise to speak to this amendment. It is noticeable that the British Transport Police are included in the Bill but the Ministry of Defence Police, the United Kingdom Atomic Energy Authority Constabulary and the Royal Parks Constabulary are not. The Ministry of Defence Police is the tenth largest

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force in the country. I can only assume that the Government team concerned with this legislation has not spoken to the team responsible for the Armed Forces Bill. At the Committee stage of the Armed Forces Bill we shall oppose the provisions whereby the Government seek to extend the powers of the Ministry of Defence Police. The relevant clause is Clause 31. We shall not oppose the clause as a whole but parts of it, as indeed did my honourable and right honourable friends in another place.
Overall, there is an extension of the authority of the Ministry of Defence Police in the Armed Forces Bill. I cannot see the logic for not extending the powers in the same way in this Bill. In the Armed Forces Bill the Government clearly seek to equate the powers of the Ministry of Defence Police within the vicinity of or on Ministry of Defence property, so far as is possible, with the Home Office Police. They are also extending their powers when travelling between one place and another.
Many of the provisions are quite logical, although, in our opinion, they have gone too far. However, I ask the Government to carefully look again at the relative powers of the British Transport Police and the Ministry of Defence Police with the other police forces I have named. I support my noble friend's amendment.
Lord Bassam of Brighton: As my honourable friend Mr Charles Clarke said in another place:
"The role of the Ministry of Defence Police is an important and significant issue".—[Official Report, Commons Standing Committee F, 15/2/01; col. 205.]
I should like to make it clear, as he did, that we would not want to give the Ministry of Defence Police extra powers in these matters unless there were powerful reasons so to do. No such reason really has been advanced prior to this debate. We have as yet received no official request from the Ministry of Defence Police for it to be given these powers. We have been in touch with that force. It has been asked for its view on these matters. It has made no official request to have this range of powers.
The protocols of agreement between the Ministry of Defence Police and the territorial forces about how they should operate together are important and complex. We would not wish to jeopardise the relationships involved by granting powers which the police force involved has not requested. The MoD Police has not requested these powers. We have been in touch and consulted it on these matters. Therefore, the amendment is not one that we can accept.
The term "chief officer of police" only covers so-called police forces—for example—for police areas in England and Wales. It does not cover the Royal Parks Police, MoD Police or any other non-territorial police forces. The British Transport Police has been included within the legislation because it expressed a wish to be so included. Logically that makes a great deal of sense because the range of offences covered in Clause 1 comprise offences which could take place in areas where the British Transport Police is operationally active.
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I hope that I have clarified our position on this issue. For those reasons I hope that noble Lords opposite will feel able to withdraw their amendment.
Lord Burnham: The Minister says that he can see no case for extending the provision to the Ministry of Defence Police. The positions of the Ministry of Defence Police and the British Transport Police are absolutely identical. They are meant to defend the cause of justice, law and order, whatever one chooses to call it, on land for which they are responsible, either Ministry of Defence land or railway land. The cases are absolutely identical.
If, as the noble Lord says, he can see no case for extending the powers to Ministry of Defence Police, why can he see a case for the British Transport Police? Is it merely because the noble Lord happens to have talked to the British Transport Police and encouraged that force to ask for these powers and not the Ministry of Defence Police? There can be no other reason.
Lord McNally: Further to that point, it would seem also that the parks police are even more four-square with the British Transport Police. Have the Government simply not talked to them? Why were they left out?
10.30 p.m.
Lord Bassam of Brighton: I am sure that all of those police forces have been consulted over these matters. I am not aware that the parks police have expressed a desire to have these powers, although, particularly with regard to the parks police, I can see the point made by the noble Lord, Lord McNally. However, the MoD Police are quite clear that they do not require the powers. It would be wrong of us, particularly given the protocols of agreement between the MoD Police and territorial forces, to oblige them to take on powers that they have not positively expressed an interest in having. Members of the Committee have made their points forcefully. I shall ensure that we redouble our efforts and check once again, but I am confident that that is the position.
Lord Cope of Berkeley: The amendment has produced another interesting debate. We shall reflect on what has been said. I shall not add anything at this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12 [Alcohol consumption in designated public places]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 26:
Page 6, line 32, at end insert "and reasonably believes that their behaviour may lead to an offence"
The noble Baroness said: In moving Amendment No. 26, I wish to speak also to Amendments Nos. 27 and 28. These amendments bring me to a point which I raised at Second Reading with regard to the

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consumption of alcohol in designated public places, most commonly referred to, under current bylaws, as alcohol free zones.
As currently drafted, if a constable reasonably believes that a person is or has been consuming alcohol in a designated public place or intends to consume alcohol in a designated public place, the constable may require the person concerned not to consume the alcohol in that place or to surrender the alcohol to the constable. We believe that, in order for a constable to exercise his or her powers under Clause 12 of the Bill, he or she should, as our amendment suggests, reasonably believe that the behaviour of the person either consuming or likely to consume the alcohol in a designated public place may lead to an offence.
Perhaps I may repeat the example that I used at Second Reading. Let us suppose that a group of people—perhaps on a family outing to a beach which is in a designated public place—take with them a few beers and a bottle of wine. A police constable will have the right to remove that alcohol on the spot even though it may be obvious to most people that the likelihood of that group's behaviour deteriorating to such a degree that it may lead to an offence is fairly remote. The fact is that once this Bill is passed all of us will feel fairly uncomfortable about consuming alcohol in a designated public place, just as we do if tempted to park even for a brief moment on double yellow lines.
The Minister responded to those concerns at Second Reading by saying that drinking alcohol in a designated public place does not by itself constitute an offence. I accept that. However, we firmly believe that for that effectively to be the case Clause 12 must be more narrowly defined. As currently drafted, a keen constable would be acting quite within his power to compromise all of us, no matter how innocent the activity. This is an example of a nanny state if ever there was one. Amendment No. 27 deals with the disposal of anything surrendered to a constable under Clause 12. We on these Benches have considered this point at some length and have concluded that, while it is important to retain as much flexibility in procedures to be followed by police officers as possible, it should be the responsibility of the chief of police in that area to dispose of anything surrendered as and when he or she deems it appropriate. For example, there is always the possibility of some dispute arising following the confiscation of alcohol or containers, a dispute that may be hard to settle if the physical evidence is disposed of prematurely. In addition, I believe that we are now all very aware of the dangers involved in handling receptacles of any kind found in a public place. Surely it would make sense for the responsibility to rest with a senior police officer.
Turning to Amendment No. 28, this emphasises our wish to see flexibility in the system, given the often difficult circumstances that a constable will need to face and the realistic time-frame within which he or she must decide the right course of action and implement the right procedures. In essence, we think that it would be too draconian to expect a police officer, when seeking to restrain someone or, more likely, a group of
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individuals, from consuming alcohol and, if necessary, removing the alcohol from that person or those persons, to remember to state that failing without reasonable excuse to comply with the requirement is an offence. Yes, that would be both a good idea and good practice, but it should not be made a hard and fast rule of law.
What would happen if, on one occasion where the offence was clear cut, a constable should forget to make the statement? It would be a nonsense for the offence to be negated in a court of law just because the constable failed to meet the requirements of Clause 12(5). I beg to move.
Lord Bassam of Brighton: The Government believe that these amendments would both weaken and complicate the new police powers provided by the clause. Clause 12 will not make it an offence for a person to drink in a place that is designated by virtue of Clause 13. The noble Baroness has accepted that an offence would be committed only if a person continues to drink alcohol in such a place after having been warned by a police officer not to do so, or fails to comply with the officer's request to surrender any alcohol or alcohol containers in his or her possession, in accordance with Clause 12(2). There is, therefore, an important safeguard written into the clause to protect those who may innocently or unwittingly be drinking in such a public place. We would expect people in this position to comply with the officer's request.
The police will have a discretion as to the circumstances in which they exercise these powers. If they do not warn an individual not to drink, no offence will be committed. In addition, by virtue of Clause 13, it will be only those public places that have experienced problems associated with anti-social public drinking that will be designated by the local authority for this purpose. It is right that the police should have effective powers to tackle antisocial drinking in such places and to contain public disorder situations where alcohol misuse plays a part.
We must avoid a situation occurring in which the police consider it to be appropriate to exercise the Clause 12 powers in a designated public place, but then are required to exercise a judgment in respect of each and every individual as regards whether an individual may go on to commit an offence if allowed to continue drinking before exercising their powers.
Baroness Buscombe: I hope that the Minister will forgive me for intervening. The Minister has just contradicted himself. On the one hand he has said that by drinking in an alcohol-free zone, one is not committing an offence, but on the other hand it is entirely at the discretion of police officers to decide that it is an offence. That does not make sense.
Lord Bassam of Brighton: I think that the position is plain. It is not an offence to drink; it is an offence to refuse an officer's request. That is the important point to remember here.
Lord Carlisle of Bucklow: While I accept that it appears not be an offence to be drinking, even though

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someone may have been told by an officer that he should not do so, this gives a power to the officer to confiscate from an individual anything he may have in his possession. Following on from the point made by my noble friend Lady Buscombe, if I visit a beach not knowing whether it is a designated area and have with me a cask of wine, is the Minister saying that the police will have the power to remove that cask of wine simply because I happen to be in a designated place? Not unreasonably, having a cask of wine and a glass with me, the police might think that I am likely to have a drink. I understand that the police will be given the power to remove that alcohol from me.
Lord Bassam of Brighton: As they do in many instances, the police will have a discretion to exercise such powers. I think that we can expect the police reasonably to exercise that discretion. What they are looking for is anti-social drinking in places where they reasonably believe that public disorder may occur. That is the important point. An area will not be designated unless the area is likely to be a place where disorder may occur. That is how this particular set of powers has been built up and developed in our thinking.
There are already 113 local authorities which exercise similar powers—many of them, I hasten to add, Conservative authorities. They have welcomed these powers and the reasonable way in which they have been exercised. If the noble Baroness would like to draw to my attention to real, practical examples of where there have been difficulties of the order and the nature that she has described to the Committee, I shall be very interested to hear of them.
Baroness Buscombe: The situation at the moment is slightly different; it is much more difficult to invoke by-laws. If the Bill is introduced, it will be a straightforward process for local authorities to introduce these alcohol-free zones—probably in a blanket way—to try to eradicate anti-social behaviour. However, because it will be so easy and straightforward, it will not solve the problem; it will only move it. Creating these blanket areas of alcohol-free zones could make criminals of all of us. That is the point that I am trying to make.
Lord McNally: I should like to bring a word into the debate which I know is much loved by the Minister—that is, "proportionality". The noble Baroness is getting out of proportion the dangers of what is proposed against the real menace it is intended to deal with.
Late at night we always get marvellous images. The thought of the noble Lord, Lord Carlisle, in shorts and sandals, toddling on to the beach with a cask of wine in one hand and a glass in the other, can be considered only as a social exercise and not as an anti-social one. Knowing the noble Lord's hospitality, I am quite sure that a beach party would soon be in motion.
It has been pointed out that Liberal Democrat councils, Conservative councils and Labour councils have all come up against the problem of areas of a
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town being taken over and denied to ordinary citizens. That has been caused by one of the facts of modern life; that is, the easy access to cheap alcohol in supermarkets, and to not only groups of deadbeats and ne'er-do-wells but also groups of young people making whole areas no-go areas for the ordinary citizen. The fact is that local government has increasingly needed to use these powers. I do not see that as the action of a nanny state but as a reasonable power to deal with a real menace to the ordinary citizen.
I am not as convinced as the noble Baroness that this power will merely move the problem to another area. The areas that become known drinking centres are easily identifiable and, once the drinkers are removed, some of the problems will be removed with them.
10.45 p.m.
Baroness Buscombe: Perhaps I may respond to the point made by the noble Lord, Lord McNally. We on these Benches collectively are not against alcohol-free zones. My concern is that a blanket approach will not solve the problem but merely move it to another area. Does the noble Lord think that people will stop drinking? Of course they will not. It will not make a difference in that sense at all.
The amendment seeks more narrowly to define the offence to ensure that a police officer will approach those people only where it is reasonably likely that an offence will take place. In other words, the rest of us will be left to have a social drink, as opposed to an antisocial drink. That makes it easier for the police officer to carry out his duties in a sensible way. He will not be accused, if he stands back, by some who say, "Look at them. They should stop drinking. It is not allowed. It is an alcohol free zone". He can then say, "I am absolutely correct to stand back and allow those people to carry on drinking because I do not believe that what they are doing at the moment is likely to cause any difficulty or that they will commit any offence". That is the point I am making. I simply want to see a more narrowly defined provision.
This is not about being prescriptive. I heard what the noble Lord, Lord Goldsmith, said in relation to the need for us not to be too prescriptive in terms of the operation of the Bill's provisions. That is important. We have tried in some of our amendments to concede that point and to help the Minister in that way. But, at the same time, the public need to be reassured that they will be allowed to continue to go about their lawful business and to enjoy urban areas and rural areas, no matter whether they are alcohol free zones, if they are behaving in a way that is social and is not likely to lead to an offence. That is purely what this provision is about.
Lord McNally: Before the noble Baroness sits down, does she agree that a large group of people, even if they are drinking socially, in a public place can be intimidating to the rest of the community? She must take that point into account when deciding whether it is to the greater good that people should be able to exercise the kind of freedom to which she refers. It is

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not about people unfurling the rug and opening the picnic hamper somewhere and enjoying a glass of wine. It is about groups of people—often young people in quite large numbers—drinking alcohol that they have bought in supermarkets. They may not be going to commit any offence, but they certainly cause disquiet, particularly among older citizens. In the end, whole areas where this activity is carried on become no-go areas for those other citizens.
Baroness Buscombe: I find it hard to accept this argument coming from a Liberal Democrat. I assume, therefore, that the noble Lord is suggesting that, even if groups of young people are in no way in danger of committing a n offence and their behaviour is not likely to deteriorate to the extent that they are committing an offence, they will have to be teetotal? Is that what the noble Lord is saying?
Lord McNally: No. But if 20 or 30 young people go into Tesco's in central St Albans and then go across to the Arena Plaza and start consuming the alcohol that they have purchased, they cause disturbance and in some cases distress.
Baroness Buscombe: That is exactly my point. If they cause disturbance, our amendment kicks in. They are likely to cause an offence, in which case the police officer then feels comfortable that he is right to go up to them and ask them to surrender their alcohol to him. It is to assist the police that we are proposing this amendment. It is not in any way to try to make the provision more difficult or more draconian.
Lord Bassam of Brighton: I am not quite sure that the noble Baroness lives in the real world. I have been dealing—
Baroness Buscombe: Forgive me, but I find that deeply insulting. I hope that the Minister will refrain from such remarks and that he will retract that statement.
Lord Bassam of Brighton: I am not one for being offensive across the Dispatch Box. That is not my style. I try to be polite and precise. But what we are trying—
Baroness Buscombe: Will the Minister apologise for that statement?
Lord Bassam of Brighton: I apologise if I have given offence. It was not intended as a personal aside. But we do have to have real world considerations. That is the point that I am trying to drive home. I ask the noble Baroness to reflect on that. I live in a city which is very busy for 24 hours of the day in summer. There is a real problem with young males aged 20 to 35 drinking on the streets in a particular part of the city, St James Street. The local authority is extremely keen to have this range of powers in the way in which they are described in the Bill. It feels that they will help it to deal
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with a real nuisance. There is actually cross-party agreement within the city council as to how those powers might properly operate.
The Government have very carefully consulted with the Local Government Association and with local authorities generally about the exercise of these powers. We are simply trying to replicate a situation that existed by application through by-laws. That is all that we are seeking to put in place. When the noble Baroness says that this is the "nanny state", that is when I say that we need to deal with real situations in real places and in real time. As the noble Lord, Lord McNally, said, this will give genuine relief to people who feel threatened and menaced by others in such circumstances. I give way.
Lord McNally: Perhaps I may give the Minister another example; namely, the city of Liverpool, which, as he knows, is under Liberal Democrat control. The local authority has taken very strong measures against this kind of public-place drinking, partly because the old image of Liverpool was associated with whole areas where such behaviour could take place. This reflected very badly not only on the image of the city but also on the commerce and the trade; and, indeed. people's willingness to visit the city. One of the first results of that hard-line policy is the fact that more people now go into central Liverpool to enjoy themselves in a social way because they no longer feel intimidated by such public abuse of alcohol.
Lord Bassam of Brighton: That is precisely the point, is it not? In a city like Liverpool, or one like Brighton and Hove, people will want to drink socially in restaurants and in bars where there are, perhaps, open areas in the summer from which people spill out on to the streets in a confined way. Indeed, tables are often placed on the pavements so as to enable people to enjoy a meal in the open air. It is to protect that very social act of drinking in a more generally considered public place that we are seeking to enable local authorities to make application in the way proposed.
There is adequate protection in the legislation. Officers will be able to exercise judgment and discretion. The power will not be abused in the "nanny state" way of which the noble Baroness is so afeared. I certainly cannot see it interfering with her glass of wine on the beach at Rock, or wherever it is that she takes her pleasure in the summer—according to the example that she mentioned on Second Reading. There are significant safeguards available. Clause 13 will ensure that it is only those public places that have experienced problems associated with public drinking that will be designated for this purpose. In those circumstances, I have absolutely no doubt that the local authority will very carefully define the area to be covered.
I know from my own example in Brighton and Hove that very careful debate has taken place with local amenity groups, local traders, hoteliers, restaurateurs, local action groups on alcohol, and so on, so as to define where the line should be drawn. Indeed, that debate has been most important. Because local

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councils will be held to account locally, they will have some difficult choices to make as to exactly where that line is drawn.
We do not find these amendments to be workable. We do not believe that they will significantly enhance the quality of this legislation. As I said at the outset, I believe that they would significantly weaken it. For all of those reasons, I must continue to resist the amendment. I invite the noble Baroness to withdraw it.
Baroness Buscombe: In responding to the noble Lord, perhaps I may, first, point out that I, too, live in the real world. I happen to live in London where I know that all of these problems manifest themselves on a daily basis—hence my reaction to the rather insulting comment that was made.
I am disappointed in that I do not believe that the Minister responded to Amendments Nos. 27 and 28. We are looking for ways to emphasise the need for flexibility in the system and to help police officers in the process of carrying out what we know to be a very difficult job for all of them on a day-to-day basis. I am sorry that the Minister does not seem to understand that I am trying by way of these amendments to
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support the work of the police in terms of effectively managing these alcohol-free zones in a way that we believe would help everyone in the long term. Such provisions would help the general public to understand where the parameters lie within the Bill. However, I shall not press my arguments at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 27 and 28 not moved.]
Clause 12 agreed to.
Lord Davies of Oldham: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Special Educational Needs and Disability Bill [H.L.]
Returned from the Commons agreed to with a privilege amendment; the amendment considered and agreed to.
House adjourned at four minutes before eleven o'clock.