Lords Sitting of 10 December 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 Southwark.
Baroness Hylton-Foster—Baroness Hylton-Foster— Took the Oath.

Anthrax: Treatment
Lord Soulsby of Swaffham Prior Lord Soulsby of Swaffham Prior asked Her Majesty's Government:
What advice they are giving to doctors regarding antibiotic use in the event of exposure to the anthrax bacillus.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, advice to doctors on the treatment of those with anthrax symptoms and those potentially exposed to spores is available through the Public Health Laboratory Service. Specific guidance is available on the PH LS website, including on the use of antibiotics. Arrangements have also been made to draw the attention of GPs and other clinical staff to the guidance as appropriate.
Lord Soulsby of Swaftham Prior: My Lords, I thank the Minister for that reply. It is encouraging. The Public Health Laboratory Service guidelines suggest that penicillin is used as a prophylactic and even in therapy. However, the strain of anthrax that has been disseminated in the United States and a number of strains in the wild are also producers of penicillinase, and hence can lead to resistance. Will the Minister assure the House that the guidelines are updated to take account of the abilities of these organisms?
Lord Hunt of Kings Heath: My Lords, antibiotic-resistant anthrax is a known phenomenon. Tests in the US indicate that the strains of anthrax identified there were susceptible to penicillin and to ciprofloxacin and doxicyclin. In the UK, the antibiotic of choice is ciprofloxacin, which is considered to be the most effective antibiotic in these circumstances.
In any incident, it is clearly important to test the anthrax for antibiotic resistance, as that cannot be predicted. Such testing will continue as the incident unfolds in case more than one strain of anthrax is used. This will then confirm the treatment. Laboratories, including the PHLS, are well able to undertake such tests as a matter of routine.
In relation to the guidance, I have checked with advisers and have been informed that it is consistent with the relevant information that is now available. I should be happy to discuss the matter further with the noble Lord.
Lord Clement-Jones: My Lords, the Question was also directed towards the prophylactic use of
1132
antiobiotics against anthrax. What action is the department taking to prevent such use or to discourage it?
Lord Hunt of Kings Heath: My Lords, the guidance issued by the PHLS recommends., at page 8, prophylaxis after exposure. In that case, ciprofloxacin is recommended as the antibiotic of choice.
Baroness Finlay of Llandaff: My Lords, the cascade of information from the Government to NHS trusts and GPs has been very effective. However, the difficulty remains of diagnosing the first index case. What measures are in place to ensure a continuous cascade of information so that it does not fall from the front line of the minds of those clinicians who might be faced with seeing the index case and who would be key in diagnosing it?
Lord Hunt of Kings Heath: My Lords, the guidance was originally available on the PHLS website on 11th October. GPs and other clinicians had their attention drawn to that advice in a letter from the Deputy Chief Medical Officer on 11th and 15th October. More detailed guidance was issued on 17th October to all health authorities. I very much take the point that the noble Baroness has raised. I can assure her that the PHLS will update guidance as appropriate. We have an effective way of then ensuring that that reaches front-line clinicians.
Earl Howe: My Lords, as the Minister indicated, strains of anthrax can vary in their susceptibility to antibiotics. In view of that, what are the Government doing to ensure that rapid methods are available to detect antibiotic resistance in a strain of anthrax arid, therefore, to give rapid advice when it is needed?
Lord Hunt of Kings Heath: My Lords, as I believe I said in my answer to the noble Lord, Lord Soulsby, tests are undertaken and it is very important to carry those out as quickly as possible. Testing continues to take place in relation to specific incidents in case more than one strain of anthrax has been used. Therefore, the purpose of testing is to confirm whether anthrax has been involved and, if so, which strain. Tests are then carried out to determine whether that strain of anthrax is resistant to a particular antibiotic. Therefore, a hierarchy of responses ensures quick and continuous testing and, if anthrax is confirmed, it identifies whether the strain would be resistant to a particular antibiotic.

Faith Schools
2.44 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
Whether they will ensure that the experience of Northern Ireland in inter-denominationally integrated schools is taken into account in England

1133
and that parents are consulted about inter-faith education when new religious schools are proposed in the state sector.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, we shall require promoters of new faith schools to have local support and to demonstrate how they will be inclusive and work in partnership with other schools. We consider that approach to be more appropriate than directly copying Northern Ireland's integrated school system. Promoters of new schools must carry out detailed consultation with the local community and interested parties.
Lord Hylton: My Lords, I thank the Minister for her reply. Will she note that I was not suggesting a direct copy of Northern Ireland? Would she be prepared to consult her ministerial colleague there on this whole matter, and does she agree that inter-religious schooling in England is highly desirable?
Baroness Ashton of Upholland: My Lords, indeed, we consult colleagues in all departments on issues that are appropriate and relevant. We acknowledge that there are 20 or so existing Roman Catholic and Church of England schools in England, as referred to by the noble Lord, Lord Hylton. The noble Lord is right to draw attention to existing joint-faith schools which bring together children of Christian faith. It is worth noting that a key aspect of the success of these schools is their ability to work together on shared aims through mutual respect in order to secure the best education for their children.
Lord Dubs: My Lords, does my noble friend agree that one of the lessons of Northern Ireland is that educating children separately has a damaging effect on community relations and on the attitude of one religion towards another? Does she accept that the concerns in relation to a move to faith schools are that such schools would not easily be inclusive and that they might lead to increased segregation in this country without necessarily following any Northern Ireland model?
Baroness Ashton of Upholland: My Lords, as my noble friend Lord Dubs knows well, at present 4 per cent of Northern Ireland's pupil population attends integrated schools. The general policy in Northern Ireland is that children should be educated in accordance with their parents' wishes. That is reflected in the different schools which exist in Northern Ireland, including maintained, controlled, integrated and Irish medium schools. All schools, regardless of whether they have a particular religious designation, should further understanding of the diversity of national, religious and ethnic identities in the UK and the need for mutual respect and tolerance. That is exactly how we would approach this issue in England.
The Lord Bishop of Southwark: My Lords, does the Minister acknowledge that there is a long tradition of
1134
Church schools in England, which serve the whole local community and not only the children of practising Christians?
Baroness Ashton of Upholland: My Lords, I agree with the right reverend Prelate that there is, indeed, a long-standing and widely accepted tradition of faith schools in this country. Christian faith schools have a significant history as part of the state education system and play an important role in its diversity. We consider that it would be wrong to deny members of other faiths access to schools of their faith.
Lord Dearing: My Lords, I declare an interest as the chair of the committee of the Church of England that recommended an increase in the number of that Church's secondary schools. Is the Minister aware that at a meeting of the General Synod of that Church last month a resolution was passed which welcomed an ecumenical approach to those additional schools? The resolution stated that the schools should serve the whole nation and should be open to children from the diverse communities that they serve.
Baroness Ashton of Upholland: My Lords, I am aware of the work of the noble Lord, Lord Dearing, and of the resolutions that were passed by the General Synod. The Government welcome the emphasis that the noble Lord gave in his report to the Archbishops' Council to the principles of social and religious inclusiveness. We were delighted to see that that was reinforced in a resolution of the General Synod on 14th November which noted that Church schools should be open to the diverse communities that they serve. That is an important part of education in this country.
Lord Smith of Clifton: My Lords, does the Minister agree that the situation in Northern Ireland is diametrically opposed to that which obtains in England; namely, it has de facto religious education with a very small integrated school element? Here, by and large, we have a large integrated school element and relatively few faith schools. Does she agree that the experience of Northern Ireland, as outlined by the noble Lord. Lord Dubs, suggests that we should be very wary about the development of faith schools in this country?
Baroness Ashton of Upholland: My Lords, I ask noble Lords to be cautious in suggesting that somehow faith schools are a cause of other things. We should be careful about heaping on to the heads of schools responsibility for other aspects of segregation. Many socio-economic factors lead to tensions in our community. We need to be clear that faith schools should play an important role in their communities in terms of working in partnership with schools of faith and of none. That is something that we would be keen to see and to promote.
Baroness Massey of Darwen: My Lords, my noble friend the Minister has spoken about community

1135
involvement and community consultation. Can she explain what will be the role of school governors in the new schools?
Baroness Ashton of Upholland: My Lords, as the noble Baroness will know from being a school governor, school governors play an important and vital role in all schools. We would expect them to be mindful of the ethos of the school and of the way in which we expect those schools to participate in their local communities. It is a longstanding tradition for schools of all kinds to be part of their community. We expect school governors to ensure that their school participates in the community with schools of other faiths, that the teaching of citizenship is fully carried out within the school and that the ethos of tolerance is part of how every school develops.
Earl Russell: My Lords, as one who arrived at Eton having never knowingly met a Conservative, does the Minister agree that segregation of any kind makes the life of schoolchildren harder than it need be?
Baroness Ashton of Upholland: My Lords, the noble Earl puts his question extremely well. It is important to be clear about what we mean by segregation and to understand that children need to grow up with traditions, understanding and tolerance. But they do so from a background of history, tradition and culture. For many children, that includes a religious background. Therefore, we need to ensure that they meet as equals; that all our children are educated and are able to be educated without fear in the school system; and that we have respect for the diversity of education in this country.

Asylum System
2.51 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
When they expect the asylum system in the United Kingdom to be working effectively.
The Minister of State, Home Office (Lord Rooker): My Lords, this Government are committed to delivering an effective asylum system and we have made significant progress towards achieving this since coming to office. In the past financial year the Immigration and Nationality Directorate (IND) at the Home Office made 132,840 initial decisions on asylum applications and there were 8,930 removals. The backlog of undecided asylum applications stood at 43,000 at the end of September this year.
Measures to increase the effectiveness of the system were announced by the Home Secretary in another place on 29th October. Further details will have to await the publication of the White Paper, which we expect to be in late January.
Lord Campbell of Croy: My Lords, I thank the Minister for his reply. The Home Secretary recently
1136
admitted that the asylum system was not working, and the latest figures show that of the 30,000 failed applicants due to be removed by March, only about 5,000 have been removed. Therefore, what progress is being made in identifying quickly both genuine refugees and potential terrorists?
Lord Rooker: My Lords, perhaps I may say to the noble Lord that we do not necessarily associate asylum seekers with terrorism in a global fashion, as implied in the question. The process needs to be speeded-up. Our target is to achieve 60 per cent of initial decisions in two months. At present, we are achieving about 50 per cent, so we are not too far off. We come closer each month to reaching our target.
The removals programme is a large one. To remove 30,000 people a year would mean removing 2,500 per month. We expect to reach 2,500 per month by the spring of next year. To do that sensitively and carefully without causing disturbance in communities requires enormous planning. That is taking place at present. It also requires an extension of the detention estate. We need to be able to detain prior to removal to make that effective.
Lord Dholakia: My Lords, I welcome the Government's latest press release, which talks about new categories of work permits to boost the UK economy. Does the Minister consider that skilled asylum seekers already in this country could benefit from this radical reform of the existing approach to migration?
Lord Rooker: My Lords, we are not planning that. One of the reasons for that is because the belief that asylum seekers with English language can work here is such a pull factor for the people traffickers.
Lord Alton of Liverpool: My Lords, I refer to a debate we had in your Lordships' House one month ago. Will the Minister give some thought to the introduction of an American-style green card system and the opportunity, therefore, for at least some of those who come to this country for economic reasons to stay here for licit and legal purposes? Can he tell the House what monitoring of the dispersal system is taking place and how many of those dispersed to other parts of the country return to London within the first six months or so of dispersal?
Lord Rooker: My Lords, I shall first answer the latter part of the noble Lord's question. Once we have dispersed some 30,000 people in about 18 months under the National Asylum Support Service, some pressure will be taken off the South East, and Kent in particular. Once the initial decisions are given or people enter the appeal process and come off support—they may be given exceptional leave to remain—we do not track people. We shall not know how many have returned to the South East. However, there is anecdotal evidence, which I have picked up in the East Midlands, in particular, that many people do not necessarily return.

1137
As regards the first part of the noble Lord's question, the White Paper will set out proposals for managed migration; that is, through more than one scheme. People will have an opportunity to come to this country to work. In some cases that may lead to settlement, and in other cases that will be for temporary purposes. The objective will be partly met—it will not be fully met. Those who wish to come to the country to work, as opposed to using the asylum system to seek to do that, will have an open and transparent means of doing so. We shall thereby remove the pull factor from the people traffickers.
Lord Berkeley: My Lords, can my noble friend tell the House who pays for the cost of travel; that is, of getting 2,500 people out of this country to wherever they are going? I do not imagine such people have the money to do that. Do the Government pay or someone else, such as the carriers?
Lord Rooker: My Lords, the cost of removing people from the country is funded by my department. At present the figure is about 200 per week, some 800 per month. We are some way short of reaching the target. Such removal is done in many ways. Sometimes we charter aircraft because it is the cheapest way.
Lord Greaves: My Lords, last week I met a lady from the Congo who came to this country eight years ago to apply for asylum. She, her husband and her children, two of whom were born in this country and have no other home to go to, have still not had an initial decision. The Home Office wrote to her last February stating that still she would have to wait. At the same time I met several other people who have been here for several years. Would it not be sensible for the Government to clear the backlog of people who have been here several years by giving them an amnesty and leave to stay in this country? To remove them in such circumstances would be utterly inhumane.
Lord Rooker: My Lords, I do not necessarily agree with the last point raised by the noble Lord. I regret that former constituents of mine, who have been in this country longer than the lady in the example given by the noble Lord, have not had a satisfactory decision. I agree that such cases are difficult and complex, given the phenomenal increase in the past few years. It is clear that we are targeting those on whom it is easier to make a decision. The easiest ones to remove will be those who have been here for a short time. That is self-evident. If the noble Lord writes to me with details of the case he mentions, I shall have it looked at. We regret the present situation, which is due to the lack of investment in the past. We have doubled the number of staff in the Immigration and Nationality Directorate to speed up decisions. The system was chaotic and had been so for several years. That is why people such as those in the example given by the noble Lord have fallen through the net.
Lord Campbell of Croy: My Lords, does the Minister recognise that my reference to potential
1138
terrorists arose from reports that some of the atrocities that had been committed abroad had been planned by people in this country, some having come here as refugees?
Lord Rooker: My Lords, of course that applies to some. I did not want the question and answer to pass without qualification because I believe that it would send the wrong signals to those outside. That is one of the reasons why we take fingerprints and check identities as far as possible. We are calling people into the reporting centres in a more rigorous, systematic and better managed way than we have ever done before. Part of the argument heard in this House in the past few days touches on the motives that people have for being here and the deeds they are planning abroad. That is one of the reasons for the anti-terrorism Bill.
The Earl of Sandwich: My Lords, are the Government stepping up their response to abduction of children for sexual exploitation and trafficking of such children in this country?
Lord Rooker: Yes, my Lords. Work is being done in that respect. There is little evidence of people being brought into this country for sexual exploitation in respect of children. There is some evidence that they are brought to this country for onward transfer to other European countries, which I shall not name. There is a good deal of active work being done at present, together with our partners in Europe and elsewhere.

Northern Ireland: Community Policing
3 p.m.
Viscount Bridgeman Viscount Bridgeman asked Her Majesty's Government:
What their policy is in regard to organised crime and community policing in Northern Ireland.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, the Government's policy is to attack organised crime in a systematic way and to promote community policing in Northern Ireland. The Organised Crime Task Force has been in operation for just over a year with very considerable success.
Our policy is to support, in every possible way, the Northern Ireland Policing Board and the Police Service of Northern Ireland in order to deliver effective community policing.
Viscount Bridgeman: My Lords, I thank the noble and learned Lord for his reply. In view of the serious problem, and the fact that a large number of senior police officers have taken advantage of early retirement and that absenteeism in the force is unacceptably high, can he give an assurance that the phasing out of the reserve force will not take place while the terrorist threat and the high level of intimidation and organised crime remain? Further, can he assure the House that the Government

1139
will do everything they can to enhance the effectiveness of the Special Branch in carrying out its anti-terrorist operations?
Lord Williams of Mostyn: My Lords, certainly the Chief Constable is very alert to the management of the reduction of officers at senior ranks. Plainly, we take a good deal of advice from and we pay a good deal of attention to the Chief Constable. In my experience it is extremely difficult to contemplate an effective fight against terrorism without using all intelligence capacity, which includes Special Branch.
Lord Swinfen: My Lords, do the Government have any evidence that there is any connection between organised crime and terrorist groups in Northern Ireland?
Lord Williams of Mostyn: My Lords, there is a good deal of evidence to show that that is precisely the situation. The line between organised crime and alleged political activity is thin to the point of disappearance on many occasions.
Lord Rogan: My Lords, does the noble and learned Lord agree with the Northern Ireland Organised Crime Task Force that more than half the groups involved in drug dealing in the Province have paramilitary affiliations? Further, does he agree that the police in Northern Ireland must continue vigorously to pursue all paramilitary groups, whether they claim to be on ceasefire or not, if Northern Ireland's drug problem is to be arrested?
Lord Williams of Mostyn: My Lords, not for the first time, I am in substantial agreement with the noble Lord, Lord Rogan. There is no justification for trying to draw a distinction between politically motivated crime in Northern Ireland at the present time and crime which is motivated by the usual criminal motive, which is greed. As I said in a previous answer, it is not possible to draw the line. We do the community a disservice by pretending differently.
Lord Smith of Clifton: My Lords, the noble and learned Lord referred to the success achieved by the task force in just over a year of its operation. When will it next make a public announcement to tell us about its successes or the problems that it continues to face? In particular, with regard to community policing, how is it endeavouring to deal with the kind of violent demonstrations that occurred yesterday in both Belfast and south Armagh?
Lord Williams of Mostyn: My Lords, the police have a very difficult task to carry out in Northern Ireland. We should not view that with equanimity. The truth is that no police force is capable of operating in any community without the whole-hearted support of all parts of that community. The task force has been extremely effective. It will be a longer haul to get cross-community acceptance that the new Police Service of
1140
Northern Ireland is there to serve the entire community—every single part of it and every single individual in it.
Baroness Park of Monmouth: My Lords, can the noble and learned Lord tell the House whether, in the context of community policing, we can be assured that there will be no giving way to Sinn Fein's demand that former paramilitaries should be allowed to represent the community in the new DPPs, the local community police organisations? It has been widely reported that that is what it wants. But that does not coincide in any way with the recommendations of the Patten report which specifically said that it would not recommend that.
Lord Williams of Mostyn: My Lords, I know of the recommendation in the Patten report. I do not know of any plans to deviate from its conclusions.
Lord Harrison: My Lords, will my noble and learned friend say what preparations the Government are making to prevent organised crime from using the new euro notes and coins for nefarious purposes? Further, does he agree that if the euro is useful for criminals, why cannot the rest of us use it?
Lord Williams of Mostyn: My Lords, we shall adopt exactly the same stratagems and policies to deal with euro-crime in Northern Ireland as in the rest of the United Kingdom. Many commercial organisations in this country are quite happy to use the euro following 1st January. If the noble Lord has any francs left, he needs to change them before 17th January.
Lord Alton of Liverpool: My Lords, does the noble and learned Lord agree that the historic reasons for disaffection and disengagement from the institutions in Northern Ireland—not least from the Royal Ulster Constabulary but also from the civic institutions—and the motives for boycott and disengagement have been removed by the creation of these new policing arrangements and civic institutions? We need to be far more proactive in promoting, especially within the nationalist community, reasons for engagement and involvement.
Further, can the noble and learned Lord tell us what is being done to encourage young nationalists to think about a career in the Northern Ireland Police Service?
Lord Williams of Mostyn: My Lords, that is an extremely important point. It is gratifying that the hierarchy of the Roman Catholic Church has positively encouraged members of that faith community to come forward. The SDLP has done the same. It is legitimate for us to say, "Where are you?" to Sinn Fein. The recent intake, as the noble Lord will know, will be 50 per cent from the Roman Catholic community and 50 per cent from the non-Roman Catholic community. They should be trained and fully operational by early next year.
Baroness Blood: My Lords, this subject is very opportune for me. I have just returned from the United

1141
States. I went with a senior group of police officers from Northern Ireland and members of the new policing board to look at community policing. Does the Minister agree that community policing is a sexy term? Everywhere we went community policing was put forward as being the answer to problems. Yet we never heard exactly what was meant by community policing. I prefer to call it community-orientated policing because in Northern Ireland "community policing" meant the soft side of policing. If this becomes part of the Government's policy I am fearful that policing will not be seen in real terms.
Lord Williams of Mostyn: My Lords, I am not sure that community-orientated policing is any more or less sexy than other community policing. If one has a description for any form of activity, the more often it is used the more it tends to become jargon. There are many models in England and Wales where community policing has been extremely effective. I take the point of the noble Baroness, Lady Blood, that one cannot just take two words—community policing—and regard those as a panacea for all ills. As I said earlier in answer to the noble Lord, Lord Smith, it will be a very long haul in Northern Ireland to overcome many generations of fear and suspicion.

Business of the House: Anti-terrorism, Crime and Security Bill
3.8 p.m.
Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That in the event that the Third Reading of the Anti-terrorism, Crime and Security Bill is taken on Tuesday 11th December, Standing Order 48 (Amendments on Third Reading) be dispensed with to allow the House to consider amendments to the Bill tabled before 12 noon on that day.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

National Heritage Bill [H.L.]
Read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.

Anti-terrorism, Crime and Security Bill
3.9 p.m.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Symons of Vernham Dean.)
On Question, Motion agreed to.
Clause 111 [Implementation of the third pillar]:
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 77ZA:
Page 66, line 5, at beginning insert "At any time before 1st July 2002,"
The noble Baroness said: My Lords, in Committee, I undertook on behalf of the Government further to consider the serious concern raised by many of your Lordships about the justice and home affairs enabling power set out in Clauses 111 and 112. It was clear to the Government that the power had raised a genuine and deeply felt concern—mainly over the scope of the third pillar measures that could, in theory, be implemented through secondary legislation under such a power.
For example, the noble Lord, Lord Waddington, was concerned that legislation on racism and xenophobia could be adopted in that way. No measures in the European Union's terrorism road map adopted on 20th September contain provisions against xenophobia. As the noble Lord pointed out, such provisions might arise in relation to third pillar legislation, but not under the powers in the amendments.
Other noble Lords, especially the noble Lord, Lord Pearson of Rannoch, whom I do not see in his place, were concerned that the enabling power could be used to enact the European arrest warrant, which is due to be agreed at the Laeken European Council this week. The House will be aware that several issues are to be negotiated before the European arrest warrant can be adopted, but the Government have made absolutely clear that we have no intention of implementing it through the enabling power.
The Government remain of the view that it is right to seek that power. Measures agreed by the JHA Council of the European Union make a significant contribution to the fight against terrorism. We must be able to implement them swiftly. We remain of the view that it is right to introduce such measures, which are, after all, binding agreements made at European level through secondary legislation. But we recognise that the power would be a new method of dealing with business in that area, which must be considered seriously. We have also carefully considered the views expressed by your Lordships.
We therefore propose two key amendments to address the concerns that have been raised. The first is Amendment No. 77ZA. That ensures that the power will run for six months only, until the end of June. That period will allow us to implement the key measures contained in the European Union's anti-terrorism road map. However, I want to be absolutely clear to the House that we will look for a suitable legislative vehicle before that period is complete by which to return to the issue.
The second key change is contained in Amendment No. 78, which sets out in absolutely clear and precise terms what we intend to use the power to implement. I hope that that will allay your Lordships' fears and enable all—or most—of your Lordships to support the measures. The measures covered by the amendment

1143
are part of the European Union's road map on terrorism, agreed by the Justice and Home Affairs Council on 20th September and endorsed by the European Council on 21st September. We should, be absolutely clear that that constitutes Europe's response to the terrorism outrages of 11th September.
The measures include, first, the framework decision on asset freezing. For a specified list of offences, including terrorism, that measure allows orders to be enforced in the minimum possible time. The rapid execution of freezing orders could be vital in securing terrorist assets that might otherwise be dissipated or destroyed. It may therefore make the difference between, on the one hand, securing a conviction or freezing terrorist assets and, on the other, allowing terrorists and their money to go free.
The second measure is the European Union framework decision on combating terrorism. That will introduce common definitions of terrorism offences and minimum penalties across the EU. That framework decision constitutes progress, but let us be under no illusion that it is sufficient on its own. More needs to be done.
Earl Russell: My Lords, I am most grateful to the Minister for giving way. She could materially assist her case were she able to give the House one further assurance: that the Government have no plans to introduce between now and 1st July 2002 the proposal in the White Paper on House of Lords reform that this House should lose the power to reject statutory instruments.
Baroness Symons of Vernham Dean: My Lords, the noble Earl will not be surprised to know that I cannot give an assurance of that nature. If I may finish the points that I wish to make, the noble Earl may find that I can give the House many assurances. I recognise his point—it was made when your Lordships last discussed the matter—but I cannot give that specific assurance now.
To return to the second measure, the European framework decision on combating terrorism, I said that we felt that more needs to be done on the matter.
The third measure is the European framework decision on setting up joint investigative teams to fight organised crime, especially terrorism, drug trafficking and trafficking in human beings. That will provide the framework for police officers across Europe to work together against terrorism and organised crime. The power will also be used to implement the 1995 and 1996 conventions related to extradition between member states.
I hope that that will allay fears that the Government will use the power to implement measures that have nothing to do with terrorism—one point that exercised many of your Lordships when we discussed the matter last week. One thing that we have learnt since 11th September is that we still have a great deal more to do—often in areas that do not immediately and obviously appear to do with combating terrorism. We need to be able to break down the barriers behind
1144
which terrorists hide: bureaucratic delays in executing court orders; procedural barriers that stop effective police co-operation; and bureaucratic delays that mean that by moving around Europe, a terrorist can always keep one step ahead of the law; nor can we allow ourselves to fall into the trap of tackling terrorism in isolation from the crimes off which it feeds. Drugs trafficking, arms dealing and the miserable trade in human beings, of which we are all too well aware, are all crimes that are inextricably linked to terrorism.
So the power will not be used for measures against racism and xenophobia—important though such measures may be; nor will it be used to implement the European arrest warrant—essential though that is. These government amendments make no attempt at what has been described as Christmas tree antiterrorism legislation; nor will the power remain on the statute book indefinitely; rather, it will be used for a strictly limited period to implement a strictly limited—series of measures. We believe that it will be of great use in tackling terrorism across Europe.
I turn to the two amendments tabled by the Liberal Democrats.
3.15 p.m.
Lord Peyton of Yeovil: My Lords, I am sorry to interrupt the Minister. Before she moves on, I had the impression—which was shared by several of my noble friends—that she mentioned Amendment No. 78, which is tabled in my name. I should be interested to know whether she was actually referring to that amendment, and if so, what she said.
Baroness Symons of Vernham Dean: My Lords, forgive me if I misspoke, but the amendment that I meant to mention was Amendment No. 78A standing in the name of my noble friend Lord Rooker.
I shall now address Amendments Nos. 77BB and 77CB standing in the name of the noble Lord, Lord Goodhart. I assure your Lordships that we shall not between Royal Assent and the date of the sunset clause—30th June—specified in Amendment No. 77ZA introduce measures further to those listed in subsection (1A) by any means other than primary legislation.
I hope that I have been able to put some substance behind the arguments that I put to your Lordships last week. We are not trying, as I think that one of your Lordships put it last week, to "smuggle through" additional provisions that might not have a direct relationship to terrorism over and above the ones that we feel that we need. I hope that I have been clear in saying that we shall have to return to the issue. Nevertheless, we feel that the Government have listened very carefully to what has been said in your Lordships' House, and that we have now introduced amendments that I hope and believe will address the very substantial issues that we discussed last week. I beg to move.
Lord Howell of Guildford: My Lords, I am very grateful to the noble Baroness for setting out this latest group of amendments, which we on this side of the House have examined with very great interest and care. I should say straightaway, in answer to her more general remarks, that we are united with the Government in seeking enactment of effective legislation against terrorism. We are not, however, united or enthusiastic when it comes to measures and powers that we believe have very little or nothing to do with terrorism. We are even less enthusiastic when it comes to measures in relation to which there would be completely inadequate or almost non-existent parliamentary accountability. That is our starting point in considering the amendments.
I confess that it was with a modest amount of relief that I watched the amendments coming out of my fax machine late on Friday night, which was perhaps a little late in the day. The amendments did, however, envisage a change of heart to some degree by the Government. Nevertheless, we on these Benches would like to probe a little further, to gain the reassurance that the Government mean what they say.
The proposal on a six-month cut-off date seems to be clear enough. As for the issues in Amendment No. 78A, however, we must yet again seek assurances. I have heard everything that the noble Baroness has said, and we welcome what I understand to be a firm undertaking that the European arrest warrants project will be dealt with in future, proper primary legislation—possibly in an extradition Bill, if there is one, although it does not seem to be having a very happy start. If there is such legislation, it will be handled in that manner. Whether such an arrangement would be adequate parliamentary involvement is for another debate at another time—personally, I do not think that it would be—but at least it is not being proposed that such provision should be pushed through by this Bill's provisions and the move to secondary legislation. None the less, may we be assured beyond peradventure that that matter will be dealt with in that manner, and that we shall not find in a few months that the position has changed?
If these new amendments are now the Government's proposals, we would like to be reassured that paragraphs (a), (b) and (c) in Amendment No. 78A will be the only proposals in the pipeline between now and next June and that no other matters or framework decisions will suddenly appear from nowhere. We would like an assurance that we are dealing only with these two matters and with the framework decision on,
"the execution in the European Union of orders freezing property or evidence, on joint investigation teams. or on combating terrorism".
Although that provision sounds a little broad, may we be assured that it will not be a holdall or a loophole for a whole lot of other measures?
We seek those key assurances, which I think that we have already been given by the noble Baroness. However, I would like her to confirm them in her reply, after my noble friends and other noble Lords have spoken to this group of amendments.
1146
I confess that we are still left with considerable unease about this whole episode. Moreover, as the old saw goes, nothing lasts like the provisional: this legislation is provisional, but how long will it last, and what will be the arguments next June? We also face the forthcoming debate on EU arrest warrants. I note that it is now being proposed that, if Italy will not play ball, that proposal should be achieved by the process of enhanced co-operation, as authorised in the not-yet-ratified Treaty of Nice. I do not know how that process will work, but we shall have to debate it later.
It would still not be entirely satisfactory even if these truly sensitive matters of policing and criminal justice were dealt with in future, after June, in primary legislation. As my noble friend Lord Kingsland said in last week's debates, and as the Delegated Powers and Regulatory Reform Select Committee suggests in its superb report, regardless of whether those decisions are made in primary or secondary legislation, they are reached virtually irrevocably by a type of prerogative treaty process.
In theory, this Parliament decides yes or no on those matters, and, as the noble Viscount, Lord Bledisloe, said, if it is primary legislation, there can also be small changes to them. In practice, however, the whole thing is dumped on our Parliament. The process is inconsistent with the aim that Ministers and the Prime Minister have repeatedly stated, that we need to bring national parliaments more closely into the process not only of legislation, but of pre-legislation and decision making. I think that it was the noble Lord, Lord Garel-Jones, who, last week in Committee, said that inter-governmental third pillar measures should be decided by parliaments. That is not happening. It is not really happening even in relation to primary legislation, and it is certainly not happening in relation to secondary legislation.
Let us hope that my interpretation of the Government's proposals is the correct one. We shall need absolutely firm reassurances from the noble Baroness—perhaps the Attorney-General should give us these cast-iron assurances—
Noble Lords: No!
Lord Howell of Guildford: Perhaps I shall be lucky. I am very glad to see the Attorney-General on the Bench; it gives me some reassurance. We shall need those cast-iron reassurances. When we have heard them we shall be able to take a final position on how we view the Government's amendments and how we view our own amendments.
Lord Wallace of Saltaire: My Lords, we on these Benches have two major concerns about Clause 111, the first of which is on scope, and the second on timing. This terrorism legislation is being pushed through as an emergency measure. We wish therefore to insist that it does deal only with terrorism and that it is limited to the immediate emergency. It seems that the amendments that the Government have now offered meet those concerns.

1147
We were also concerned that the Government should not attempt at any later stage to expand for any reason whatsoever the interpretation of the narrow scope that is now spelled out in the amendments. That was the purpose of Amendments Nos. 77BB and 77CB tabled by the noble Lord, Lord Goodhart. Consequently, we shall not be moving those amendments, nor Amendments Nos. 77A, 77B and 77C.
We thank the Government for those concessions and for Friday's negotiations. That seemed to us a model way to use our time to consider the Bill in Committee and on Report. The purpose of the Committee stage is indeed to examine and discuss each clause in detail, and the purpose of the Report stage is to consider what concessions the Government are willing to make, and if necessary to vote.
That is the proper role of Parliament and it does not help if sonic among the Government describe the proper role of this House in terms of sabotage by naive, silly, aristocratic people. Some of us do not think that we are particularly aristocratic when it comes to it. We need reasoned debate on Bills of this complexity in which we ask the Government to justify their proposals and we do our job in holding up their proposals to careful scrutiny. Sadly, on this occasion, the other place failed to fulfil that role and it has therefore fallen to this Chamber to fulfil much more of it in its turn. When it comes to discussing further the reform of the House of Lords, it is clear that we shall have to discuss the reform of the House of Commons, too.
The noble Lord, Lord Howell, referred to the Prime Minister's declared intention to increase the role of national parliaments, which he has repeated on a number of occasions. As originally proposed, the amendment would have decreased the role of national parliaments. We on these Benches have much to be unhappy about in respect of the third pillar. Much of what is now under the third pillar we would be happier to move into the first pillar, because apart from anything else it provides a proper lengthy process through which proposed legislation moves.
When I was chairman of Sub-Committee F there were a number of occasions on which third pillar proposals moved remarkably rapidly from initial proposal through to acceptance because no careful block clauses occurred under the first pillar. The position was made a good deal more obscure by the British Government's declared opting out from the Schengen convention and subsequent opting in to a great many of the clauses under it. That may confuse the Daily Mail and it certainly confuses many of us within this House.
Having said that, however, we accept this useful clarification. We accept the careful, further assurances which the Minister gave in her opening speech on the meaning arid intent of the clause. Therefore, we do not wish to move our amendments and will accept the clause.
3.30 p.m.
Viscount Bledisloe: My Lords, at this and earlier stages I have tabled amendments to delete Clauses 111 and 112 in their entirety. I want to welcome with perhaps greater warmth and enthusiasm than the noble Lord, Lord Howell, could express, the care and trouble the Government have taken to meet our concerns in their amendments. I agree with the noble Lord, Lord Wallace, that that is a most satisfactory conclusion to the proceedings of this House.
I want to ask only two questions. First, is it entirely clear from what the Minister said that the power will be used only to implement those measures which are already contained in the European Union road map on terrorism? Secondly, I want to ask the Government a little more about the European arrest warrant. I gather that last week the passage of that was defeated or delayed by the intervention or participation of the Italians. Without in any way making any form of racist remark, it is perhaps a sorry day that the British people have to look for the protection of their liberties to the Italian Government and not to their own Government.
Notwithstanding that defeat, why are the Government so keen to press ahead so quickly with a measure which is still under scrutiny by the Select Committees of both Houses of Parliament and has not been released and on which this House has already expressed its enormous concerns? It has nothing to do with the fight against terrorism and would be much better considered at proper length and with proper care. Why can that not wait?
Lord Alexander of Weedon: My Lords, my interest in the amendment is as chair of the Select Committee on Delegated Powers and Regulatory Reform. It had immense reservations about the original proposals; in fact, reservations as strong as it had on any issue in the almost seven years during which I have chaired it. I welcome the amendments, particularly in so far as they limit considerably the scope of the application to introduce third pillar measures by secondary legislation and have a tight sunset clause.
However, in welcoming them, perhaps I may say a few words about the principles. They are important and they will be important when the issue is considered again, as the Minister has said it will be, in a comparatively short time-scale. Furthermore, the committee was, as always, assisted by the careful and open memorandum put forward by the Government and their response to our report. That enables me to say with some confidence that with the help of the memorandum I hope that there is total agreement that the third pillar powers are potentially wide-ranging enabling powers, many of which have still to be exercised in ways of which we in the House are totally uncertain.
Secondly, they cover the extremely sensitive areas of policing and criminal justice. They create the potential for new offences to be introduced into our domestic law by agreement at ministerial level and punishable by very significant terms of imprisonment. That would

1149
be a novelty in our law where serious criminal offences have always been introduced by primary legislation. The Government memorandum very fairly makes clear that such regulations to implement third pillar measures would often require the amendment of existing primary legislation. In other words, there would be frequent use of Henry VIII powers across a potentially broad front. If at some stage in the future we adopted what we were initially invited to adopt, the only limit would be that we were accepting whatever fell within the broad perimeters of the third pillar.
The Government's justification, which they set out for us, was the principal one; that the European Communities Act 1972 provided a similar method of legislation in regard to directives introduced within what was then the European Community. It was, in other words, by secondary legislation. The Select Committee's report pointed out that there were very significant points of difference. The first was that the 1972 Act considered social and economic measures. It did not concern itself with policing and criminal justice which are often critically concerned with the liberties of individuals.
The second point of difference was that the European Communities Act deliberately limited itself to permitting the introduction of offences in the areas in which it was operating punishable by imprisonment of up to two years. Not so the scope of the present proposals, which provide for a potentially lengthy term of imprisonment.
The third point of distinction is that there is less democratic control over third pillar measures. European Union measures under the first pillar go to the European Parliament, with co-decision powers with the Council of Ministers, and so have a measure of democratic control. By contrast, the third pillar is simply an agreement between Ministers and there is no such control.
The Select Committee on Delegated Powers and Regulatory Reform recognised that some measures introduced under the third pillar might be of less importance than others. We suggested that in properly drafted legislation there would be included a schedule of those measures, principally procedurally, which could be incorporated into our law by secondary legislation, and a clear exclusion of other more important measures. In his response to the Committee's report the Minister fairly recognised that point. He said:
"The Government is satisfied, therefore, that the enabling power can be justified as part of the Government's emergency proposals. We recognise that it will be used to implement important measures and that if the Government was bringing them forward as purely national measures this would be effected by primary legislation. These measures are not, however, purely national measures. Third Pillar measures are EU level measures that are binding on the UK and have to be implemented".
That appeared to be the case in principle for implementation by secondary legislation. I do not follow that. If such matters are important enough to require parliamentary scrutiny, surely they are
1150
important enough to require the same level of parliamentary scrutiny as is given to other important measures in our domestic law.
I accept that this point will not call for further discussion on the amendment before us today, but as we shall have to return to it at a later stage, I alert the Government and the House to what I believe will be fundamental issues of principle. I would like to see pre-legislative scrutiny so that the measures can be thought through properly.
With that comment on the original proposals and hoping to be constructive for the future, I welcome the way in which the Government have responded to the Committee's report and the concerns of the House, and the way in which they have brought forward these amendments.
Lord Waddington: My Lords, I am glad that the Government have gone a considerable way towards meeting the concerns expressed by so many noble Lords. My noble friend Lord Alexander of Weedon referred to the fact that the European Communities Act 1972 allowed the creation of new offences, but new offences that carry a term of imprisonment of not more than two years. Noble Lords were concerned that Clause 111 or Clause 112 allowed the creation of offences carrying unlimited terms of imprisonment.
I would like elucidation on one outstanding matter.
Amendment No. 78A (1A)(c) makes reference to measures "combating terrorism". Even after the Government's amendments and after the considerable distance that they have gone to meet the concerns expressed, Amendment No. 78A would still allow, in theory, the creation by secondary legislation of new offences that would carry unlimited terms of imprisonment. If that is so, will my fears be allayed by the Government telling me that, although that is the case under Amendment No. 78A, there is nothing in the roadmap that will result in the creation of new offences carrying unlimited terms of imprisonment before next June?
It is extremely important that that matter is cleared up. If this amendment allows, and if the roadmap still allows, the creation of offences carrying unlimited terms of imprisonment, the point made by my noble friend Lord Alexander of Weedon is underlined. We are treading on dangerous territory and creating dangerous precedents—we may say that we have moved on from the 1972 Act—if we now seriously consider that it is correct for a government to create new offences that carry unlimited terms of imprisonment by delegated legislation. I believe that that would be a serious departure from the way in which we have always made law in this Parliament.
3.45 p.m.
The Earl of Onslow: My Lords, I genuinely thank the Government for moving a long way towards understanding the concerns raised by noble Lords on all sides of the House. I know that it was a hard decision for Mr Blunkett. He made noises about an

1151
unelected House and he was especially rude about people like myself whom he has recently allowed to continue to be Members of this House.
What offences do the Government have in mind to bring in under these powers? We produced a terrorism Act after Omagh; we produced a terrorism Act in 2000 and we are dashing through a terrorism Act now. Against our will we are giving the Government powers to bring in new offences under the European aegis. What offences do the Government intend to introduce? Can the House be given some indication what new offences will be produced under this plan?
Baroness Park of Monmouth: My Lords, perhaps the Minister can clarify a point about which I have asked a question before. I welcome the concession of a sunset clause that allows us to review our position in six months' time, but what will be the status of whatever we agree at Laeken. Suppose at Laeken we say, "We agree with this, but we would like to think about it again in six months' time", but the EU says, "No, this is an EU decision that is reached jointly and it cannot be rescinded". My understanding is that we cannot rescind EU legislation once it has been agreed.
I refer the Minister to Clause 18(4) which allows the Secretary of State not to disclose information to a public authority abroad. He is restricted in his powers to this extent:
"A direction under this section shall not have the effect of prohibiting … the making of any disclosure in pursuance of a Community obligation".
Shall we be undertaking obligations which cannot be rescinded even though, after six months' experience, we decide we do not want to go along with them? I cannot believe that we are free to make a community decision and to go back on it six months later. I shall be delighted to be reassured that my concerns are baseless.
Can the Minister also tell the House whether methods of combating terrorism, as listed by the noble Baroness, include the proposals for Europol, about which I have inquired several times?
Lord Brennan: My Lords, I am sure that I speak for many noble Lords on this side of the House in welcoming these amendments put forward by the Minister. They seek to meet a genuine concern, which is a simple one to express. Our tradition of democracy in this country is that serious criminal law is enacted by the people's elected representatives through primary legislation. Clauses 110 and 111, as they were, sought to introduce on their face an apparent extension of government powers at the cost of that tradition. I say "apparent" because it is clear from the government amendments tabled today that they recognise the concern and have chosen to act to remedy it. The concern will not go away. As the noble Lord, Lord Alexander of Weedon, made clear, this is a constitutional matter of great importance on which I can reflect simply.
A decision by the Council of Ministers on serious criminal law affecting the Community may be the result of unanimity. That is numerically impressive but
1152
it is not thereby endowed with democratic virtue. The virtue of criminal law enacted by the people's representatives is that it commands the respect of the people. I am sure we shall return to that debate; today is not the occasion for it.
I welcome the refocusing of this use of European law to combat terrorism in its four objectives. I said at Second Reading that the freezing of assets was a critically important method of combating terrorism. Secondly, the framework decision which the Council of Ministers has been agreeing seeks to implement that to which we as a nation have already committed ourselves, in spirit if not in letter, in the various conventions of the United Nations to combat terrorism. Thirdly, on extradition, it is, to put it mildly, totally unsatisfactory that an extradition hearing in our country can drag on for three or four years before the person is extradited. Lastly, and perhaps most importantly, there is the need to have the investigative forces liaising in this campaign.
My congratulations on the good sense of these amendments are coupled with a practical question. We have debated the constitutional significance of these clauses. We were told that they were being implemented because action was necessary. With regard to each of those four objectives, when can we expect secondary legislation—I am sure we shall readily endorse it—to aid in the fight against terrorism?
I close by noting again—I did so at Second Reading—the good sense of the opinion expressed by the noble Lord, Lord Jenkins of Hillhead, that the passing of legislation of this kind in an emergency meets the objective of the security of the people but must also meet the objective of protecting democracy. The public will forget quickly the political spats about these amendments. What they will want to remember is whether Parliament passed legislation that commanded the confidence of the country. It is by accepting concerns and putting forward these amendments that they command that confidence. I heartily endorse the amendments.
Lord Peyton of Yeovil: My Lords, I wish briefly to welcome the amendments brought forward by the Government. I am not sure whether they go far enough. But I am certain of this. They have already altered the climate in which we discuss important issues, and that makes a major difference. I echo the points made by my noble friend Lady Park of Monmouth. What is the standing and worth of decisions which will now be made under these powers and before the sun sets on them? I have been concerned throughout the debates by the apparent tendency—I accept what the noble Lord, Lord Rooker, said at Second Reading—to ignore the powerful opinions and advice offered by the Delegated Powers and Regulatory Reform Committee. The opinions of that committee do not seem to have been fully digested by Ministers in another place. That committee commands huge respect. I am sure that I speak for the whole House when I say how grateful I feel to my noble friend Lord Alexander of Weedon for what he has

1153
done in the past and for what he said today. His contribution has been important in bringing about an improved climate.
I find puzzling and disappointing some of the remarks the Home Secretary is reported to have made during the passage of the Bill. I have great respect for the Home Secretary. He seems to be one of those people, rather rare in our time, who says what he thinks and means without bothering about a disagreeable, odious veneer of political respectability. However, there seem to be times when he goes dangerously far. I wonder whether some his colleagues who are Ministers in your Lordships' House might play a small part in persuading the Home Secretary that the large and massive votes of last Thursday were not brought about by energetic powerful whipping. That is a somewhat self-defeating exercise in your Lordships' House and it certainly did not have any effect on the results of the Divisions last Thursday. Nor was it the result of any forgetfulness of the horror of the events of September 11th. No one in your Lordships' House does not have those events fresh in his or her memory; nor would he or she be influenced into forgetting the appalling shock which those events gave to the whole civilised world.
I add only one comment and do so with some caution. The Home Secretary should not attribute those massive majorities on Thursday to any sudden uprush of love and admiration between the various Opposition parties in your Lordships' House.
Baroness Carnegy of Lour: My Lords, my noble friend Lord Howell has been accused of not being perhaps 100 per cent enthusiastic about all the government amendments to this part of the Bill. My experience is that governments are at their trickiest when they have just discovered that they are wrong. On this part of the Bill, I believe that they were most wrong of all.
We welcome very much what the Government have done. Watching a television programme yesterday lunchtime I was lost in admiration for the endurance and enthusiasm of the noble Lord, Lord Rooker. He did extremely well, busily convincing the public that the Government were doing the most wonderful thing. They have done a lot, but we shall have to wait for six months to decide how third pillar business will be implemented in this country. My noble friend Lord Alexander of Weedon—he is chairman of the Select Committee and I am a member—identified again the issues for your Lordships. However, in six months' time we shall have to decide in Parliament the difference between matters coming under the third pillar which are extremely urgent because of counterterrorism activity and what the noble Lord, Lord Brennan, described, in a most remarkable speech, as serious law.
I wonder whether it would be possible on each occasion for Parliament to decide on a Motion whether or not business could be treated in secondary legislation. It may be that the kind of schedule the Minister foresaw will do the trick, but it will be very
1154
difficult to decide. As she has said, the line between that which is purely a terrorist matter and that which is not is very thin indeed. It may be that there is a more solid way than simply a schedule that may or may not stand the pace over the years. We are grateful, however, for what the Minister has done.
My noble friend Lord Peyton is a little unkind when he says that the Minister took a long time to say that he would do something. He did say it right at the beginning in this House and, to be fair to the Government, because of the timing the House of Commons did not have a chance to look at the committee's report when they discussed the matter. They have responded as best they can. Had they not been in such a rush, they could have done it all now and not in six months. Nevertheless, I welcome what they have said.
4.00 p.m.
Lord Elton: My Lords, the reputation of this House will not in the end depend on what people, however distinguished, say about it from outside, nor indeed what we say about ourselves today. It will depend on the work we do today and the result which it produces.
Unlike my noble friend Lady Park, I believe that the purpose of the amendment is to allow the Minister to make regulations which will be permanent for six months. They will remain permanent, and the temporary nature relates merely to the window of time in which he can make changes. The statutory instruments that come before us in the next six months will therefore be of critical importance. I am relieved to see that they are at least under the affirmative procedure, so that we shall have to consider each as it comes through. They may come rather thick and fast, because the Government have only a little time in which to act. It is reassuring, however, because it means that afterthoughts cannot be dragged in after the six months are up.
The second limb of the amendment limits not the time but the scope to the three things listed in paragraphs (a), (b) and (c). My eye has fallen with some alarm, as it did with my noble friends Lord Howell and Lord Waddington, on the very last words of the very last paragraph, "or on combating terrorism". It strikes me as a very extensive catch-all phrase, particularly as the Government have said countless times that one cannot distinguish between terrorist crime and other crime. Given the definition used for this subject, those words embrace almost any form of criminal activity, provided it is within the third pillar.
There is some odd terminology before us. There is something called a road map, which I understand is a list of the things being considered under the third pillar at present and which may be brought forward. I shall listen with very great care to what the noble Baroness says in reply to my both of my noble friends, to her explanation of what is caught by this phrase, and what the Government will therefore be enabled to enact by secondary legislation.

1155
Secondary legislation cannot be amended. To throw it out would he a very drastic move, and we will not be able to temper what the Government propose by secondary legislation if we think it goes too far. We will only be able to refuse it or accept it. This definition is therefore of considerable importance.
Lord Stoddart of Swindon: My Lords, I would prefer that Clauses 111 and 112 were not in the Bill at all. Having said that, however, I appreciate that the Government have come a long way in meeting the concerns which were rightly expressed in Committee in this House.
What concerns me most is that, had this House not had the time and the ability to scrutinise it, the legislation would have gone through. It is a matter of concern that a Bill containing 126 clauses should be sent to this House without most of them having been properly considered. It is no good the Home Secretary or any other Cabinet Minister complaining about this House, when it has done its job—a job which should have been done by the House of Commons in the first place, it having been elected to do so. It is entirely reprehensible that an elected House of Commons should have less concern than this House for the freedoms and the rights of the people of this country.
I believe that Mr Blunkett is doing a good job, is speaking his mind, guiding people along a road of less political correctness. However, he has to understand that, unless the House of Commons does its job, this House has to spend a great deal more time on the Bill—more than three times as much—and has to do the job for it.
I think that I speak for most members when I say that we would prefer to be at home in our beds than sitting here at one or two o'clock in the morning, doing a job for which the other people along the corridor are properly paid.
Lord Pearson of Rannoch: My Lords, perhaps I may press the Minister to confirm beyond doubt that any provisions arising from the exercise of Article 31 will require unanimity in Brussels. I say that because Article 31, as it stands in Title VI of the Treaty and on its own, contains no reference to whether the provisions under it will be reached by unanimity or qualified majority voting.
The article is controlled by Article 24 of the TEU, which the Government now wisely wish to leave out of the Bill, but Article 24 is itself amended by the Treaty of Nice from unanimity to qualified majority voting, if that treaty is to be ratified.
Article 34 is clearer and does appear to come under unanimity. Article 31, standing on its own as it now does, is silent on the matter and it would be very helpful to have confirmation from the noble Baroness that these new provisions will require unanimity in Brussels before they are brought here by regulations.
Baroness Symons of Vernham Dean: My Lords, the whole House is clearly united in seeking effective legislation against terrorism, although I am bound to
1156
say probably not quite so united in enthusiasm for the amendments which Her Majesty's Government have brought forward.
The noble Lord, Lord Howell, sand that the six months sunset clause was clear, and I hope that is clearly set out in Amendment No. 77ZA. Although I am not a lawyer, I believe that I am in a position to assure the noble Lord that the European arrest warrant legislation will not be brought under this Bill. Indeed, we have made it clear that it never would be. It now cannot be brought under this Bill, because of Amendment No. 78A. Even if we had wanted to—which we did not—we now cannot. I hope that that has closed off a line of argument which perhaps has occupied your Lordships rather more than it should have done. It will be dealt with through separate primary legislation.
I turn to the points raised in regard to paragraphs (a), (b) and (c) set out in Amendment No. 78A. The noble Lord asked whether any further proposals were in the pipeline. I should say that I do not know what will happen over the coming six months; that is, whether we shall see a further terrorist outrage or an incident that might prompt further emergency legislation. Sadly, we live in such times. However, I have given a specific assurance in relation to the Liberal Democrat amendment that Her Majesty's Government would not seek to bring forward through secondary legislation any further baubles, so to speak, to add to the Christmas tree following the passage of the Bill through this House. I hope that that point is clear. Any further action that needed to be taken would be dealt with through primary legislation, excepting those matters covered by subsection (1A), which we have already discussed in relation to the Liberal Democrat amendment.
I was grateful for what was said by the noble Viscount, Lord Bledisloe. I believe that the Government have listened carefully to the exchanges in Committee. That stage is for the purpose of detailed and reasonable discussion. On this occasion, I believe that the House discharged that function in an exemplary manner.
Perhaps I may move on to the second point raised by the noble Viscount in relation to the Italian position. It is a fact that Her Majesty's Government disagree with the position adopted last week by the Italian Government. I should tell the noble Viscount that every other member state also disagrees. We shall need to discuss this further at Laeken where we very much hope to reach agreement.
Italy's position has made clear a very important point; namely, that decisions are taken by member states not, as many noble Lords fear from time to time, by the Commission or by the European Parliament. It is important that such decisions ultimately rest with member states themselves.
Lord Pearson of Rannoch: My Lords, before the noble Baroness leaves the matter of the European arrest warrant, when primary legislation is brought before this Parliament, can she tell the House whether

1157
we will be able to amend what may have been agreed at Laeken or wherever? Alternatively, is it the case that once Ministers have agreed the new European arrest warrant in Laeken or Brussels, our powers to amend it will be negligible?
Baroness Symons of Vernham Dean: My Lords, I cannot say that we shall be able to amend the powers of the European arrest warrant. As is the case when discussing other European treaty matters, I believe that we shall need to look at a treaty and consider whether noble Lords feel able to agree with it and, similarly, whether another place feels able to agree. The legislation will be dealt with in a way that is familiar to noble Lords.
Perhaps I may move on. The noble Lord, Lord Waddington, raised a number of points relating to the two-year cut-off point for offences. Given our amendments, the reference to creating offences with a penalty of more than two years only in practice will apply to the framework decision on combating terrorism. Even in that case it is unlikely that we shall need to impose a cut-off point of more than two years because in most cases UK law will already have in place severe penalties for terrorism. We shall do the minimum required to implement the framework decision. We are looking in particular at the need to impose sentences over two years in relation to offences committed abroad which may not be covered by existing UK law. I hope, at least to some extent, that the position has been clarified for the noble Lord.
I was very grateful for the contribution made by the noble Lord, Lord Alexander of Weedon. I hope that the noble Lord will recognise that my noble friend Lord Rooker and I have asserted from the beginning that we recognise the well-argued reservations of the Delegated Powers Committee. My noble friend made that point clear in the debate on Second Reading and I hope that I did the same in Committee. I am also grateful to the noble Lord for alerting Her Majesty's Government to the fundamental matters of principle which were laid out in the report of the Delegated Powers Committee. I can assure the noble Lord that we wish to discuss this matter again with the committee before any further legislation is brought forward. I believe that one of the strengths of your Lordships' House is its capacity to undertake such tasks. We are grateful for the wisdom that the noble Lord's committee is able to bring to bear on such issues.
The noble Earl, Lord Onslow, asked what we had in mind to bring forward under Amendment No. 78A. The 1995 and 1996 extradition conventions will simplify the extradition procedures between EU member states. The noble Earl may be interested to know that the United Kingdom is one of only five member states not to have implemented those conventions. That will have to be achieved through what I believe a noble Lord described as the "window of opportunity" we shall have over the coming six
1158
months. Indeed, secondary legislation on the extradition conventions will be brought forward next week.
The Earl of Onslow: My Lords, I believe that we are in danger of getting into a serious muddle. As I understand it, over the coming six months we shall have new primary extradition legislation. We have said that we shall not have the European-wide extradition warrant. Now we are saying that, yes, there will be a certain amount of extradition law introduced under this arrangement. Can the noble Baroness tell the House exactly what that will be? I am in a serious muddle over this and I hope that I am not unique.
4.15 p.m.
Baroness Symons of Vernham Dean: My Lords, the extradition conventions were agreed in 1995 and 1996 by the then Conservative Government. We have an obligation to bring forward those conventions by the end of this year. That may be seen as stepping through the window of opportunity created by the legislation over the coming six months. We have an obligation in respect of those two conventions to complete the process before the end of the year.
The point made by the noble Baroness, Lady Park, concerned whether we would then be in a position to retreat from the legislation. It is the opportunity for taking such secondary legislation which would then close down as a result of the sunset clause, as was kindly pointed out by the noble Lord, Lord Elton. However, the secondary legislation so created will not die with the sunset clause. I hope that that answers the point made by the noble Baroness and endorses the issue spotted by the noble Lord, Lord Elton. Furthermore, I hope that that answers the point put forward by the noble Earl.
I turn now to the convention on mutual legal assistance which will enable us to provide video evidence. That will prove extremely useful if a witness is unwilling to travel or if we do not want such a witness to travel. It offers a clear advantage as regards expediting proceedings against terrorists either here or abroad. Furthermore, there are other issues as regards the framework decision on asset freezing. I hope that those three bundles of issues at least give the noble Earl an idea of the kinds of matters that we shall be bringing forward.
I hope that I have responded to the points put forward by the noble Baroness, Lady Park, in relation to the sunset clauses. They provide an opportunity to bring forward the secondary legislation that will close on 1st July of next year. Thereafter we would introduce further legislation. We would not turn our backs on secondary legislation that, it is hoped, will be created during the period between now and 1st July of next year.
The noble Baroness also raised a point with regard to Europol. I have asked Home Office Ministers to write to the noble Baroness in answer to her question. Again, I shall return to the attack on behalf of the noble Baroness.

1159
I thank the noble Baroness, Lady Carnegy of Lour, for the compliment she paid to my noble friend who, perhaps I may say, richly deserved it. As I indicated in response to the points made by the noble Lord, Lord Alexander of Weedon, we shall consider carefully the robust points that were put forward in the report of the Delegated Powers Committee. I hope that we shall have an opportunity to discuss them.
I hope that I have answered the substance of most of the points raised by the noble Lord, Lord Elton. He went on to ask what constituted an act of terrorism. We have covered this ground in the past few weeks. Amendment No. 78A is specific on the sorts of issues that are covered, such as decisions on,
"freezing property or evidence, on joint investigations teams, or on combating terrorism",
for acts of terrorism with which we are becoming all too dismally familiar. It is important, for example, that the placing of bombs—sadly seen so recently—is specifically covered as an act of terrorism.
Lord Howell of Guildford: The phrase, "combating terrorism" at the end of proposed new subsection (1A)(c) continues to create a little unease. Can the Minister assure us that the enabling powers brought forward during this limited period will be confined to terrorism, or are the Government still mired in the difficulty that they cannot define where terrorism ends and other forms of crime begin, so that they cannot give undertakings on the matter?
Baroness Symons of Vernham Dean: To some extent the noble Lord is right. We are talking about freezing property, evidence and other matters closely related to terrorism. That brings us back to the discussion we have been having in the past few days. Her Majesty's Government thought that it was right to have a broader definition so that we would not get into legalistic arguments. Your Lordships said that that was not satisfactory and would prefer something that was related to terrorism. So the Government sought to meet that point. The reference is to the Council framework declaration; that is all that the amendment is intended to be. The measure has been more narrowly drawn, as your Lordships wanted, but I freely acknowledge that there are a number of ways in which it could he interpreted. That is the crux of the argument we have been having in our debates.
The noble Lord, Lord Pearson of Rannoch, who is now in his place, raised another point. All the measures listed in Amendment No. 78A will be decided under Article 34, so they are subject to unanimity. I hope that that is a satisfactory answer.
I appreciated the remarks of the noble Lords, Lord Peyton of Yeovil and Lord Stoddart of Swindon. We have tried to enter into the genuine spirit of what a Report stage should be, listening carefully to what is said and trying to answer the points raised rationally and sensibly. We aim to meet the genuine concerns
1160
that have been expressed by your Lordships. In that spirit I hope that we can proceed in agreement on these amendments and clauses.
On Question, amendment agreed to.
[Amendments Nos. 77A and 77B not moved.]
Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 77BA:
Page 66, line 7, leave out from "under" to "or" in line 8 and insert "any third pillar measure"
[Amendment No. 77 BB, as an amendment to Amendment No. 77BA, not moved.]
On Question, amendment agreed to.
[Amendment No. 77C not moved.]
Lord Rooker Lord Rooker moved Amendment No. 77CA:
Page 66, line 11,1eave out "the third pillar" and insert "any third pillar measure"
[Amendment No. 77CB, as an amendment to Amendment No. 77CA, not moved.]
On Question, amendment agreed to.
[Amendment No. 78 not moved.]
Lord Rooker Lord Rooker moved Amendments Nos. 78A and 78B:
Page 66, line 15, leave out subsections (2) and (3) and insert—
"(1A) For the purposes of subsection (1), the following are third pillar measures—

(a) the 1995 Convention drawn up on the basis of Article 31 of the Treaty on European Union on Simplified Extradition Procedure between the Member States of the European Union,

(b) the 1996 Convention drawn up on the basis of Article 31 of the Treaty on European Union relating to Extradition between the Member States of the European Union, and

(c) any framework decision adopted under Article 34 of the Treaty on European Union on the execution in the European Union of orders freezing property or evidence, on joint investigation teams, or on combating terrorism."

Page 67, line 14, leave out "the third pillar" and insert "any third pillar measure"
On Question, amendments agreed to.
[Amendment No. 79 not moved.]
Clause 112 [Third pillar: supplemental]:
[Amendment No. 80 not moved.]
Clause 113 [Use of noxious substances to cause harm and intimidate]:
The Duke of Montrose The Duke of Montrose moved Amendment No. 81:
Page 68, line 25, at beginning insert "In England and Wales or Northern Ireland,"
The noble Duke said: This subject was touched on at Second Reading by my noble friend Lady Carnegy of Lour on the suggestion of the Law Society of Scotland. I have the feeling from what the Minister said at col. 719 on the fourth day of Committee that he is also aware of the issue of the common law of Scotland.
This group of amendments seeks to disapply Clauses 113 and 114 from Scotland. Clause 113 creates a new statutory offence in relation to the use of, and

1161
threats involving dangerous substances. It offers as a penalty a maximum prison sentence of six months, a fine not exceeding the statutory maximum, or both on a summary conviction, or imprisonment for a term not exceeding 14 years, a fine, or both, on conviction on indictment. Clause 114 creates a new statutory offence in relation to hoaxes involving noxious substances, with equal penalties.
These are suitable subjects to be included within the framework of legislation when dealing with modern terrorism. Presumably they are seen as providing strength to the statutory law of the United Kingdom. The problem for Scotland is that these activities are all capable of being regulated under the common law, and in this case under a charge of fraud or breach of the peace. The penalty for being found guilty under this offence is a maximum of life imprisonment or an unlimited fine.
The common law is a far greater deterrent, and unless the Government feel that terrorists in Scotland should be dealt with more leniently than at present, I submit that these amendments are required. The other irony of the situation may be that statistically one might find a larger number of people angling to be charged as terrorists after a rowdy night out in Scotland because they feel assured that there is a fairly low penalty if they are found guilty. I beg to move.
Baroness Carnegy of Lour: The Law Society of Scotland is probably right. I imagine that the drafting needs some attention as I think that there needs to be a consequential amendment to Clause 126. I hope that the Government will accept the amendments.
The Earl of Mar and Kellie: During the devolution debates, I stressed the value of devolution in giving Scots law, and Scots criminal law in particular, its own Parliament. I am therefore inclined to support the amendments proposed by the noble Duke, as this type of legislation would be better dealt with by the Scottish Parliament. Both offences can be classed as breaches of the peace and the almost unrestricted punishments would be more effective.
Lord Rooker: My Lords, the Scottish Parliament debated and agreed the way forward proposed in the Bill on 15th November. To remove Scotland from the Bill in the way proposed would cause problems. The whole of the United Kingdom will be affected by those who use noxious substances to cause serious harm. The effects would be felt in Edinburgh, Belfast and Cardiff as equally as they would be in London. Bearing in mind that the Scottish Executive has agreed the policy, which was agreed by the Scottish Parliament after the debate on 15th November, I hope that noble Lords will think twice about pressing the amendments.
The Earl of Mar and Kellie: My Lords, the debate was as to whether or not a Sewell Motion should be passed rather than a full debate on the contents of the Bill.
Baroness Carnegy of Lour: My Lords, perhaps I may ask the Minister—the noble Lord, Lord McIntosh is
1162
looking very cross with me—whether it is the case that the Scottish Parliament had asked Scottish Members of the House of Commons and noble Lords—particularly on the advice of noble Lords based in Scotland—to do what they think is best? It is a perfectly legitimate request. I thought perhaps the Government might accept it.
Lord Rooker: My Lords, the Government are not accepting it. The policy has been agreed by the Scottish Executive and the Scottish Parliament. Whichever way one looks at it, they have agreed the way forward proposed in the Bill.
The Duke of Montrose: My Lords, as I understand it, the Scottish Parliament has asked us to debate what should be in the Bill. We have the power to put in and take out whatever we want. The amendments do not remove Scotland from anything other than Clauses 113 and 114. However, if this is not clear, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Lord Rooker Lord Rooker moved Amendment No. 82:
Page 68, line 27, after "has" insert "or is likely to have"
The noble Lord said: In moving Amendment No. 82, I shall speak also to Amendments Nos. 83, 84 and 89. I shall be extremely brief.
As drafted, it is not precisely clear in the Bill that Clause 113 would cover the circumstances where an action set out in subsection (2)(a), (b) and (c) has been disrupted before it has had chance to take effect—for example, where the police intercept a package of anthrax spores designed to kill the recipient before it reaches its target. It is obvious that such cases must and should be caught by the offence. Amendment No. 82 seeks to clarify this by providing that the action need be only "likely" to have the effect. Amendment No. 84 is a consequential amendment: Amendment No. 83 is necessary to ensure consistency; and Amendment No. 89 is necessary to ensure consistency with Clause 114. I beg to move.
Lord Elton: My Lords, we need to get this right. If the substance is intercepted it will not be "likely" to have the effect that we are trying to prevent. Therefore, surely, the wording should not be "is likely to have" but "is intended to have"? The noble Lord will perhaps think about this matter between now and the next stage.
Lord Rooker: My Lords, we are always in thinking mode. I shall not rewrite the amendment on my feet. I am fairly confident that I could have explained this from the longer and extensive note that I have and could have used. However, if we have it wrong, we have tomorrow to put it right.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. 83 and 84:
Page 68, line 31, leave out "falls" and insert "has an effect falling"
Page 68, line 37, leave out "is likely to induce" and insert "induces"
On Question, amendments agreed to.
[Amendments Nos. 85 and 86 not moved.]
Clause 114 [Hoaxes involving noxious substances or things]:
[Amendments Nos. 87 and 88 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 89:
Page 69, line 25, leave out "likely to"
On Question, amendment agreed to.
[Amendment No. 90 not moved.]
Clause 37 [Meaning of racial hatred]:
[Amendment No. 91 not moved.]
Clause 38 [Meaning of fear and hatred]:
[Amendment No. 92 not moved.]
The Attorney-General (Lord Goldsmith)The Attorney-General (Lord Goldsmith) moved Amendment No. 92A:
Page 20, line 16, at end insert—
"(8) The Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence under Part 3 of the Public Order Act 1986 (c. 64), or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief."
The noble and learned Lord said: My Lords, in moving Amendment No. 92A, which stands in the name of my noble friend Lord Rooker, I shall speak also to the other amendments in the group which relate to Part 5 of the Bill.
The effect of Amendments Nos. 93 to 98 would be to remove a substantial part of Part 5 from the Bill. I shall recap, first, why the Government sought to introduce Part 5, recognising as I do so that, by not moving Amendments Nos. 91 and 92, it is accepted in the House that at least part of what the Government have done is acceptable.
Some noble Lords previously suggested that Part 5 had nothing to do with 11th September and that it was not a measure in response to those events. But we cannot and should not forget that ordinary people in our streets face hatred and harassment because others hold misguided prejudices about their beliefs. At the weekend, the Guardian outlined some individual cases: the Muslim schoolteacher, in a headscarf, who was asked on a Manchester train, "Do you think you will live until 9 o'clock tonight?"; graffiti on a wall reading, "Avenge USA—Kill a Muslim Now!"; a child in Cambridge attacked because his mother was wearing hijab; leaflets posted through letter-boxes across the country claiming that Islam stands for intolerance, slaughter, looting, arson and the molestation of women. It is a sad indictment of our society, but it is also the reality that faces many people today.
There is a weakness in our law because it deals with racial groups, not religious groups. As I have previously noted, some religious groups—Jews and
1164
Sikhs—can also be considered as racial or ethnic groups, and, as a result, are protected by the additional safeguards of the Public Order Act 1986 and the Crime and Disorder Act 1998. The current situation is anomalous. On a website run by a disreputable and hateful organisation, there could be the same message about three different groups—the Sikhs and the Jews, which would be prosecutable as incitement, and the Muslims, which would not be. That is an anomaly which needs to be resolved, and the events of 11th September require that resolution quickly. That is why these provisions were included in the Bill and that is why they should remain in the Bill.
Let me identify some of the support that there has been for these provisions being in the Bill. The Muslim Council of Britain, the leading Muslim representative organisation, issued a statement confirming its support in principle for both incitement to religious hatred and religiously aggravated offences. The Board of Deputies of British Jews—although, as I have indicated, the Jewish people are considered a racial group—also supports the extension of the law to religious groups. It noted that in the month after 11th September the number of anti-Semitic incidents recorded by the Jewish community in Britain doubled. Justice, in its paper to the Home Affairs Select Committee in another place, stated that it broadly supports the extension of incitement to racial hatred to cover religious hatred. It said that this will act as an important measure to protect vulnerable minority communities. The Law Society paper to the Select Committee on Home Affairs welcomed in principle the proposal to create an offence of religious hatred. The second report of the Joint Committee on Human Rights stated at paragraph 58:
"There would be little difficulty in establishing a pressing social need for action".
The United Nations Human Rights Committee, in its concluding observations earlier this month on the United Kingdom's latest periodic report, noted the recent upsurge in religious harassment and attack and urged the UK, among other things, to extend its criminal legislation to cover offences motivated by religious hatred.
In Committee, the proposal received support from the right reverend Prelate the Bishop of Southwark, who is in his place today, and the right reverend Prelate the Bishop of Blackburn. I hope that we shall hear at least from the right reverend Prelate the Bishop of Southwark today.
The second general point raised by noble Lords and others is that Part 5 will limit freedom of expression and will stop criticism of religions and hinder religious discussion and debate. My noble friend the Minister and I have sought to explain existing law and the safeguards in the Bill. I shall trespass on your Lordships' indulgence and mention them again and then return to Amendment No. 92A.
The first of the six safeguards is that the law requires that before an offence has been committed, a person must use threatening, abusive or insulting behaviour. Secondly, there must be a mental element—an intention to incite religious hatred or a likelihood that

1165
the conduct or words will do so, coupled in that case with an intention that the words should be insulting, threatening or abusive.
Thirdly, the offence is directed at hatred—a strong word. The dictionary definition "hatred" is not defined in the Bill—is more than contempt or ridicule. Fourthly, the offence deals not with hatred of a religion but of a group of people who are defined by their faith or lack of it.
Fifthly, the conduct has to enter the public domain. The offence is not directed at purely private expressions of any sort. Sixthly, no prosecution can be brought unless it is instituted by the Attorney-General or with his consent.
The Government do not underestimate the concern expressed in this House and in the other place that a person should not be prosecuted for expressing a legitimate religious belief. I have made that clear, as has my right honourable friend the Home Secretary. In Committee, I undertook to consider how best to ensure that such prosecutions do not occur. We carefully examined the amendments tabled in Committee and in another place but concluded that they would not be effective. The difficulty is that providing exclusion from prosecution or a specific defence—where, for example, a person cites a religious text—creates a loophole that could be exploited by persons who deliberately seek to incite hatred and who are the very people we want the legislation to catch.
We have seen examples where extremists have used quotes from holy books out of context to incite hatred. It is not difficult for the devil to cite scripture for his own purposes. Amendment No. 92A will provide guidance, which will give reassurance, on the kind of conduct that, by being a legitimate expression of religious belief, is not likely to amount to an offence of inciting religious hatred. I hope that that provision, in conjunction with existing safeguards, will reassure those persons who feared that expressing truly held beliefs could inadvertently lead to them being prosecuted.
4.45 p.m.
Lord Lester of Herne Hill: My Lords, guidance is obviously important when dealing with a new criminal offence that will interfere with freedom of expression. Will the House see that guidance before concluding its proceedings on the Bill this week, so that it will know how prosecutorial discretion will be guided one way or the other?
Lord Goldsmith: My Lords, I hope to persuade your Lordships that the offence should be left in the Bill. The intention is that the offence will come into effect once Royal Assent is given. It is important that guidance is available by that date, so that the public know the consequences. I am hesitant to promise that the guidance, which has not yet been drafted, will be available by Thursday. I shall give thought to that question as I continue.
Lord Lester of Herne Hill: My Lords, does the Attorney-General agree that it is important, as a
1166
matter of parliamentary accountability, that Parliament knows what it is doing before creating a controversial offence? Would it not be in the interests of democratic, responsible and accountable government for the House to see the guidance that the Government contemplate?
Lord Goldsmith: My Lords, it is guidance that I shall give as the prosecuting authority—as the prosecutor with the authority to say whether or not an offence should be committed. That is not the same as government guidance amending, in any way, the offence. I shall consider further the noble Lord's comments. I thoroughly share his views about the importance of democratic accountability. I shall return to the question of precise timing.
Amendments Nos. 95 to 97 deal with the penalties for incitement to racial or religious hatred. Amendment No. 95 would retain the proposed increase from two to seven years but only for racial offence, not religious offences. Amendments Nos. 96 and 97 would remove the provision.
The Government believe that the penalty for the existing offence of incitement to racial hatred as well as the new offence, if it is included, of incitement to religious hatred should be seven years—which would match the penalty set by Parliament for racially aggravated offences in the Crime and Disorder Act 1998.
Amendments Nos. 94 and 98 relate to aggravated offences, where there is a criminal element already but the crime is made worse by being aggravated by a racial element. It is not acceptable to use violence to cause harassment or to damage property because of hostility towards a person's religion. It is one thing to dislike a person for their religion; it is one thing to dislike the religion itself; it is quite another thing to punch a person because they hold a religious belief that one does not like. Sadly, those kinds of offences have increased since September 11th and we need to send a message now that that is unacceptable.
Noble Lords will recall that there was support from both the Conservatives and the Liberal Democrats for this measure in 1998 when racially aggravated offences were introduced in the Crime and Disorder Act. Both parties opposite called on the then Home Secretary to include religiously aggravated offences. The Government undertook to keep that under consideration and that was happening when September 11th occurred. Those events made clear that religiously motivated offences are a reality and that we need to act now. That is why we have brought forward Clauses 40 and 43. Therefore, I hope that noble Lords will support the inclusion of those offences.
In conclusion perhaps I may quote an Attorney-General, albeit an American, Robert Kennedy, who said in 1963,
"What is objectionable about extremists is not that they are extreme, but that they are intolerant. The evil is not what they say about their cause, but what they say about their opponents".

1167
The Government's position is clear. We need to protect our communities and the people in this country from religious hatred. The provisions in Part 5 of the Bill will do that. We are not creating something entirely new. We are expanding existing offences with the same criminal thresholds and safeguards that have been in place for years. Where there have been concerns we have listened, examined the possible options, and in the case of Amendment No. 92A, we have brought forward a solution.
My right honourable friends the Prime Minister and the Home Secretary have both made it clear that the United Kingdom has no argument with Islam or Muslims. The vast majority of British Muslims are law-abiding citizens who condemn terrorism in all its forms. It is unacceptable in our society for innocent people to be subjected to hatred simply because another person equates their religion wrongly with terrorist activity. The Government believe that this part of the Bill strikes the right balance between ensuring freedom of speech, which we prize dearly in this country, and ensuring that innocent and law-abiding people are able to practise their religion and to go about their daily business without being subjected to hatred or threats.
With the support for this provision and the safeguards for it, I believe that there is no good reason to oppose it. It was described by Mr Oliver Letwin in another place as being introduced by the Government with "noble motive". To protect vulnerable religious communities is a noble motive. I hope that noble Lords will now want to join in sending a clear message that this House wants to protect those people, the young woman in Manchester, and British people against unjustified threat and intolerance. It is an opportunity to send a message of tolerance and inclusiveness. There is no justification for hiding behind delay and procrastination.
My right honourable friend the Home Secretary did the right thing in including this noble provision in this Bill. The House would do wrong to vote it out. I beg to move.
Lord Dixon-Smith: My Lords, the noble and learned Lord has made a gallant defence of an inclusion in the Bill that is riot a part of the fundamentals of the battle against terrorism. His proposition rests on the assertion that it is. Indeed, it would be wrong of me if I were not say that there is justification for legislation in this field. The question is whether this is the right legislation, the right time and whether the legislation itself is entirely correct.
I shall try to follow the pattern that the noble and learned Lord has followed in his remarks because it might lead me to follow a logical progression, otherwise my thoughts might tend to be slightly scrappy. The noble and learned Lord rightly listed those bodies which support this legislation, such as the Muslim Council of Britain the Jewish Board of Deputies, Justice, the Law Society in principle, and the Joint Committee on Human Rights which says that it will have little difficulty in supporting legislation in
1168
this field. The right reverend Prelates have also supported the principle of this legislation. That is a powerful argument with which we do not quarrel.
The question which I do not believe has been answered by all those bodies is whether in fact they have said that this legislation must he passed now and in this form. With the possible exception of the right reverend Prelates who, by the good fortune of their presence here, have been able to express their view, I doubt whether the other bodies have expressed their support in those specific terms.
We come to the definition of the offence. As the noble and learned Lord said, before an offence takes place there must either be threats or abuse or insults; there must be an intention to incite religious hatred; there must be an intention to insult. The offence must be to create hatred of a group and it must be public and not private.
Those are all valid arguments. I believe I am also right in saying that they are also offences likely to cause a breach of the peace. Under existing law, if it were correctly applied—unfortunately today it is more honoured in the breach—these matters could be dealt with. The question whether the amendments would or would not work I leave to one side.
The noble and learned Lord said that offences under this new part of the Bill would be subject to his ruling as to whether or not they were offences. He intends to issue guidance as to what would or would not be an offence in this matter. I do not wish in any way to call into question the integrity of the noble and learned Lord when I say this. I hope very much that he will not take it that way. But the fact of the matter is that guidance is entirely discretionary. It is not binding It can be set aside, changed, and it is not subject to parliamentary approval.
To return to the question asked by the noble Lord, Lord Lester, even if we have the guidance before us it is not certain that it is necessarily the guidance which will apply three or five years in the future when the noble and learned Lord has perhaps gone on to greater things and some other person is doing his job. So there will always be a question over guidance.
Furthermore, I am not satisfied that we are anywhere close to a proper definition of a "religious group" or a "religion". I have two ways of asking the question. We do not have any particular problem in this country with regard to Mormons. More questionable is the Church of Scientology. I think of a group such as the Baha'is. They are seriously religious, but is Baha'i a religion?
If one thinks back to the early days of the Non-Conformist Church, how should we have dealt with someone like Wesley? He "took on" the established Church in order to establish a new church. These remarks may seem somewhat odd, but the legislation that we pass—subject only to sunset clauses that we may apply to it—will be permanent, unless it becomes the subject of subsequent legislation. So there are deep and serious long-term issues wrapped in these simple little clauses which have been included in the Bill to fulfil a short-term political need.

1169"/>
We do not quarrel with the principle behind the Government's approach; but the method is wrong. It is still wrong, despite the noble and learned Lord's remarkably clear advocacy. I hope that when the time comes the House will support the following amendment in this group, which seeks to remove the clause from the Bill.
5 p.m.
Lord Lester of Herne Hill: My Lords, in speaking to this amendment, perhaps I may speak also to the other amendments in the group, especially Amendment No. 93, and therefore speak only once. It is appropriate that we are discussing this sensitive issue on Human Rights Day, when we are concerned with the rights and freedoms of everyone in the country—majorities and vulnerable minorities. The Government's proposals are directed at protecting vulnerable minorities in this country, as the Attorney-General has explained.
As long ago as 1994, during the debates on the Criminal Justice and Public Order Bill, I sought to persuade this House and another place to abolish the common law offence of blasphemy, which is truly anomalous and is part of the problem connected with this proposed new offence, in line with the recommendations of the Law Commission, made after detailed consultation. I shall briefly explain the significance of that in a moment.
The Attorney-General was kind enough to refer to the Second Report of the Joint Committee on Human Rights on the Bill and on this offence. In the report we said that we shared the view of the Constitution Committee that the inclusion of non-emergency measures is inappropriate in emergency legislation required to be considered at speed. We observed also that this was not a proper or sensible way to make legislation. Those observations apply in particular to the proposed offence of incitement to religious hatred. The offence as it has been explained would apply not only to the spoken word but also to the written word, to public performances of plays and to all forms of broadcasting.
Unlike the new statute in the Republic of Ireland, the offence will not cover other forms of hatred—notably hatred expressed against gay men and lesbian women. Ireland has sensibly legislated beyond race and religion to cover that other most vulnerable group in our society.
At paragraph 60 of its report, the Joint Select Committee noted:
"We were … pleased to learn that the Home Secretary is not committed to the view that the present state of the law of blasphemy is in tune with the equality-based and respect-based arguments which would be likely to be used to justify the interference with freedom of expression potentially occasioned by the provisions of the Bill on incitement to religious hatred".
The trouble is that the Home Secretary has explained that he does not consider it appropriate to abolish the vague common law offence of blasphemy in emergency legislation designed to counter the serious threat of terrorism. But he does think it appropriate to create the new offence of incitement to religious hatred
1170
as a matter of emergency. There is no evidence before Parliament that there is any emergency or pressing social need to justify creating this new statutory offence in such extraordinary haste without dealing with the underlying anomalies in existing law.
There are two underlying anomalies to which the Attorney-General has not referred. The first is that the law does not deal with religious discrimination; it deals only with racial discrimination. It does not deal with incitement to religious discrimination; it deals only with incitement to racial discrimination. The second anomaly is that the Church of England is uniquely protected in its tenets by the ancient common law offence of blasphemy against gross forms of insult. That anomaly was abolished by the Supreme Court of Ireland—of all places—a couple of years ago in a judgment in which the Supreme Court said that the ancient crime of blasphemy existed to protect the Church of England, but the Church of England was not the same as the Catholic Church; that in Ireland no such offence was needed and it was too vague to be capable of enforcement.
But the problem is that, to many Muslims in particular, the existence of a common law offence that protects Christianity against gross insult, and Judaism as a branch of Christianity under the curious law that applies to blasphemy—since Judaeo-Christian tenets are lumped together for this purpose in a complicated way—is grossly insulting. As counsel for Viking Penguin in the Satanic Verses case—where it was sought to put people from Viking Penguin and Salman Rushdie in prison for blasphemy in insulting Islam—I learnt that the sooner we get rid of the offence of blasphemy, the sooner we remove a source of legitimate grievance from the Muslim community; and the sooner we stop people who do not believe in freedom of expression, whether they are Muslims, Jews or anyone else—including Christians—from seeking to use arguments based on mere insults of a gross kind as a justification for criminal prosecution.
I am very glad that I shall never be Attorney-General. Whatever guidance he produces, he will be in a catch-22 situation. In the first place, if we do not get rid of the offence of blasphemy, we can be perfectly sure that pressure will be brought to bear on him by some sections of the community to use this new offence when he does not consider it appropriate to do so. If he authorises a prosecution, we shall be in a catch-22 situation. I can say that with confidence because I have worked in race relations since the early 1960s and have watched what happens to the offence of incitement to racial hatred. If a prosecution is mounted and it succeeds, the danger is that one makes a martyr of the person who has uttered evil thoughts in public. If the prosecution fails, the danger is that one legitimises the evil utterances as those who purvey such views are able to say, "A jury has acquitted and this was the speech that was thought to be forbidden or punishable by law".
I do not say that it follows from any of that that we should be opposed to this new offence in principle. Indeed, I am on record as saying, and have said since 1994, that, if we abolish the offence of blasphemy, we

1171
need a new, narrowly drawn criminal offence in its place. I agree with the Attorney-General that, if one were to get rid of the other anomalies to which I have referred, this would be an acceptably, narrowly drawn criminal offence. What is proposed here is what has obtained in Northern Ireland. However, it is never used there because neither of the communities has behaved in the same way as have some on this side of the Irish Sea. It is also similar to a measure that exists in the Irish Republic, although, as I say, it has had the good sense to move beyond race and religion to cover other vulnerable groups.
I hope that I have said enough to make it clear that this matter is very complicated and very sensitive. It requires proper consultation and should not be rammed through via an emergency procedure in Parliament in this ridiculous way. The Law Commission spent a long time in its consultation and, by a majority, came to the view that not only should blasphemy be abolished but nothing should be put in its place.
From what the Attorney-General and the Home Secretary have said, I do not believe that a new manifestation of religious intolerance has arisen since September 11th. I agree that before September 11th there was a continuing manifestation of such intolerance, as we saw in the riots in the cities in the north of this country. I agree that there is widespread racial intolerance, sometimes expressed in religious form, and I entirely agree with the urgent need for effective legislation to counter religious as well as racial discrimination.
Although I would not have expressed it in the same way, I also entirely agree with much of what the Home Secretary said yesterday about the need for social cohesion and the need for everyone to rally round basic civic and political values in this country. Those include the values of a liberal society in relation to free expression as well as mutual respect and tolerance for others and equal treatment without discrimination. I know that the Attorney-General and the Home Secretary share those values. But, speaking with more than 40 years' experience, I shall say to the Attorney-General, who is brilliant but much younger than I am, that it is not sensible to legislate in haste on these complicated matters. Even though I sympathise very much with a large part of what he said about the need for a new offence, let us deal with it properly and not in this hasty way.
5.15 p.m.
Baroness Carnegy of Lour: My Lords, I want to suggest a somewhat different approach. I am afraid that it involves leaving out Clause 39. I am encouraged by the remarks made by Mr Blunkett over the weekend in various interviews when he spoke about the problems that we face in this area. I want to suggest that it is extremely unwise of the Government to highlight religion as the root of the problem when in fact it is a cultural problem. It is the problem that some of our citizens have in coming to terms with being a part of this country, rooted as it is in centuries of a Judaeo-Christian culture. It is rooted also in the
1172
problems experienced by others, whose ancestors have lived here for many years, as the immigrant population begins to join in and they see our culture respond to that.
In my view, to highlight this as a religious problem is likely to be counter-productive. We are free in this country to practise and celebrate our own beliefs and religions. But the culture here—a culture rooted in our history, albeit one which evolves as history moves on—provides the setting in which we all live our lives and the setting for our freedoms, whatever our religion.
It is not easy for any of our people to come to terms with and express a cultural problem in terms of religion. It compounds the issue and makes the situation much more difficult if we attempt to do so. The confusion will be compounded even more should the first high-profile case under such a law happen to involve an alleged offender who is a Muslim.
I believe that the Government would be very wise to emulate what the Scottish Parliament has done. I can understand why it has done so because I have received 35 letters, some from south of the Border, but mostly from Scotland and very many from the Highlands and Islands. A shot asylum seeker in Glasgow followed by a church burnt down caused the Scots Parliament to pause for thought. I believe that the Government would be very wise to think again on this matter. I do not believe that the idea of the Government giving us the conditions under which legislation would not be made would help. I believe that that would be a fundamental error.
I should be very interested to know the right reverend Prelate's view on this matter. I have discussed it with a number of his colleagues north of the Border who do not disagree with me that it would be very much better to pause and to return with a Bill which gets to the root of the matter. They agree that we require a Bill which tackles the question of how we live within the existing culture of this country and how we let it evolve without trouble. Religion is linked to culture but it is not the root problem. I ask the Government to consider that.
Lord Campbell of Alloway: My Lords, I ask your Lordships to consider whether it is acceptable that the Attorney-General—there is nothing personal about this—should issue guidance as to the conduct in respect of which he will not institute proceedings or consent to the institution of proceedings as proposed by this amendment. I am concerned only with Amendment No. 92A. Is there any precedent for this situation—a foretaste of the discretion which is exercised by the Attorney-General and which is owed to the whole of Parliament and not to a party? Is there any precedent for that?
Is this not a plain pre-emption of the issue which your Lordships are about to consider as to whether Clause 39 should stand part? If it does not stand part, this amendment is otiose and in the air. We have not yet considered whether Clause 39 should be included in the Bill. If, in your Lordships' opinion—I do not

1173
pre-empt this—Clauses 39, 40 and 41 should not stand part, what are we talking about when we consider this amendment?
If it is not acceptable that Clause 39 stand part, the Attorney-General should have no discretionary power to administer the unacceptable. In a sense this preempts the situation and is an ingenious "fudge" for want of requisite particularity on the face of the statute. It is a departure from the manner in which I have always understood that legislation is and should be presented. The noble Lord, Lord Rees-Mogg, wrote in The Times today:
"we might as well get the Bill right now".
Surely the noble Lord is right. Surely that is our duty. What on earth are we doing talking about the discretion of the Attorney-General for which there is, as far as I am aware, no precedent?
Lord Alton of Liverpool: My Lords, I support the remarks of the noble Lords, Lord Dixon-Smith and Lord Lester of Herne Hill. I voted for the Bill at Second Reading. I believe that governments are entitled to be given support in the kind of circumstances which prevailed. I do not in any way resile from the support I gave the Government then.
Over the weekend suggestions were made about the Home Secretary. He was described as bullying and scaremongering and was accused of driving on some sort of illiberal and authoritarian agenda. Anyone who knows the Home Secretary—I have known him since our days together in local government in two different northern cities—knows that those descriptions are as implausible as they are offensive. He argues, and I agree with him, that,
"to limit a Bill tackling world-wide terrorist networks to the mechanics of causing a terrorist act, rather than the funding, the drug smuggling and the criminal activity behind it, renders it useless".
I am certain that he is right about that. However, this clause on religious hatred falls into none of those categories.
The noble Lord, Lord Campbell of Alloway, mentioned the article which appeared this morning under the name of my noble friend Lord Rees-Mogg. In that article my noble friend also argued that the Bill is effectively hybrid because it contains so much, and that it is not really about emergency legislation or necessary in the circumstances in which we find ourselves today. I believe that there is a compelling case, therefore, for a separate measure to deal with this sensitive question, one with which I believe the Attorney-General dealt with great sensitivity from the Dispatch Box earlier on. It is precisely because he showed such sensitivity that he recognises—I think we all do—that wise deliberation and reflection are necessary here.
The noble Lord, Lord Lester of Herne Hill, was right when he said that no emergency issues are at stake. The Attorney-General spoke of the young woman in Manchester. All noble Lords would agree with him that the kind of remarks made to her were
1174
vicious, outrageous and unacceptable in any free society. However, during the past four weeks I have been in Oldham, Bolton and Burnley. There, I have met people who are engaged in education at various levels. I repeatedly heard them arguing for a deepening of commonly-held central civic beliefs, alongside tolerance of different cultural and religious beliefs. I heard no call for measures of this kind. I doubt that this new law will do anything to realise the objective which the Attorney-General has laid before us today, or that it would have prevented last year's riots in Oldham, the recent reprehensible attack in Bolton or the continuing level of one in five votes cast just two weeks ago for a British National Party candidate in Oldham.
By contrast, the painstaking approach, which I saw at first hand in Liverpool, of ecumenism, where first the denominations of the Christian faith work together and subsequently the great faiths have painstakingly worked together in promoting religious toleration and co-existence, seems to me to be a better and longer-term way to proceed. Legislation on religious hatred may simply be used as an excuse to stifle perfectly proper debate about, for instance, forced marriage or female circumcision. Surely, those have to be regarded as legitimate areas for discussion and debate. They are odious practices and words such as "diversity" or "pluralism" become misnomers when used to defend them.
The Home Secretary spoke yesterday about norms of acceptability. If Clause 5 were to be enacted, would he be free any longer to speak in such terms, let alone the rest of us? Earlier today he was accused of offensive remarks because of what he said yesterday. Are we really to force our politicians and other commentators into a form of Trappism because they ask whether arranged marriages are acceptable or whether British citizens should be able to communicate in English?
Our best prospect is to move as Australians and those in the United States have done to the fostering of common civic values, while accepting diversity in religious belief; diversity of dietary codes or the celebration through food, dress or music of an individual's mixed origins. As John Casey wrote in the Daily Telegraph on 4th October 2001, this legislation fails to grasp that,
"Belief in the divinity of Christ or the prophetic mission of Mohammed involves love and reverence, not mere intellectual assent".
Such beliefs can, by their very extraordinary nature, cause outrage and upset, but should that constitute a crime? Every citizen has the right to expect that the law will protect him or her from bodily harm. But the law must also safeguard people's rights to express their views freely and worship in whichever way they wish. The Attorney-General has said that there are people from the Muslim community who have spoken in favour of this provision. But there is disagreement within that community too and opinion is divided. Many Muslims recognise the threat which this legislation poses to the free expression of devoutly-held religious belief. In a memorandum to the Home Affairs Select Committee, Dr Zaki Badawi of the

1175
Muslim College, Dr Syed Aziz Pasha of the Union of Muslim Organisations and six other leading Muslim organisations have declared that,
"The extension of incitement legislation at this particular time is unlikely to protect Muslims. We have grave reservations about the introduction of legislation at this particular time".
They argue that the legislation will have,
"a deterrent and 'chilling' effect on the legitimate free speech of Muslims".
The genuine fears and concerns that have been expressed by the Muslim community and the numerous letters which many of us have received from a variety of Christian denominations, as mentioned by the noble Baroness, Lady Carnegy, indicate that we should tread very carefully in this area. Therefore, the noble Lord, Lord Lester, was right to say that we should not proceed in haste. The people who are expressing the very fears I have mentioned are the same people the legislation is supposed to protect.
Among Catholics there has been much debate about the toleration of the right of minority faiths to attack Catholicism in Catholic states. In Britain the state once forbade attacks on the established Church, but also persecuted Catholics for not being members of the state Church. That led to James II introducing a more tolerant rule, with the Declaration of Indulgence. Happily, we have come a long way since those days. I would mention in parenthesis that just 40 years a go the Second Vatican Council's declaration on religious liberty, Dignitatis Humanae, occasioned a change of emphasis with its re-affirmation, as one Bishop put it in January 1998, at a meeting of the Royal Society of Edinburgh, that while error may have no rights, those in error certainly do have rights, including the right not to be unjustly coerced.
Among Anglicans, Bishop Lesslie Newbigin, who referred to the "Islamic mission" in his Gospel and Culture lecture on 1st December 1995 at King's College London, stated:
"If it means discrimination that you make claims and counterclaims with regard to truth, then it destroys all possibility of inter-faith dialogue".
For once I also find myself in the unusual situation of agreeing with the Guardian columnist, Polly Toynbee. She is right to express concern that legislation might be used to stifle religious debate or criticism of religious practices and beliefs. We already have laws decriminalising defamatory libel, obscenity, sedition and blasphemous libel. Those are still in force, but rarely invoked. Laws against racial hatred are rarely invoked. For example, five men who were arrested a year ago for allegedly distributing anti-Semitic literature in the ultra-orthodox area of Stamford Hill were freed after the Director of Public Prosecutions decided not to proceed with charges of racial hatred. The Jewish Chronicle reported that the police said that the charges were dropped because the material was targeted only at a local Jewish community with little likelihood of any civil unrest. Surely, we should be seeking to enforce existing laws, with suitable revision where necessary, rather than hurriedly introducing ill-defined legislation which will serve only to encourage those who seek to undermine the free expression of devoutly held religious belief.
1176
I turn to my last point. I am sorry to have detained your Lordships. If we are to encourage greater religious and racial tolerance in our society, it will be done through proactive laws which celebrate citizenship, not through reactive laws which demonstrate a failure to appreciate the true nature of religious belief.
Two years ago, while giving the Roscoe lecture at Liverpool John Moores University—I declare an interest, as I hold a chair there—Jack Straw, the then Home Secretary, said that new Britons do not come together as do new Americans to celebrate the bestowing of citizenship. He said:
"We should be doing more to celebrate citizenship, to value those who take on the rights and responsibilities of citizenship by naturalisation and acquisition as well as by birth".
He was right. There are many ways in which we could celebrate and underline the full nature of citizenship, especially the opportunities we enjoy in this country for free speech and religious worship. Jack Straw said that there should be,
"a proper ceremony to mark such a key rite of passage".
Perhaps the taking of an oath to uphold our democratic institutions and the rule of law might underline the significance of becoming a British citizen. But these are big questions which are worthy of proper debate in a Bill which is capable of proper reflection, scrutiny and amendment following widespread discussion. This is not the way to do it. As this part of the Bill is not crucial to the Home Secretary's central objective, I hope that the Government will think again.
5.30 p.m.
The Lord Bishop of Southwark: My Lords, there may be three main reasons to support the group of amendments, Amendments Nos. 93 to 98, which seeks to remove Clauses 39 to 43 from the Bill. I do not find them convincing.
First, there are those of your Lordships who do riot believe that incitement to religious hatred should be outlawed because they feel that religious belief should not be given that kind of protection. I do not agree with that position. For many citizens of this country, their religious belief is one of the most precious things that they possess. That is particularly true for some minority groups which fear that their culture, including their religion, is under threat today.
There are those who do not wish the legislation to go forward because of its damaging effect on freedom of speech; those who feel that the ridicule and criticism of one's own or another faith would be hampered; and those who suspect that the legitimate evangelism of any of the faiths would be constrained. Those are real fears which have been expressed in the House today, but they can be overcome.
It should be recalled that in this legislation we are dealing with hatred. We are not dealing with humour, comedy or even strident criticism. Nor are we dealing with the unfortunate, the accidental or the arguably deliberate misinterpretation of another faith. Words spoken in sincerity by one faith community need not

1177
imply hatred of another. A religious service or the desire to convert others, to share the blessings of one's faith with another, is not an occasion to call up loathing, unless it is seriously abused.
The noble Lord, Lord Dixon-Smith, need have no fear; a modern day Wesley would not have incitement to religious hatred among his armoury, any more than did his illustrious ancestor. Amendment No. 92A standing in the name of the Minister addresses that anxiety. The amendment makes the Bill much easier to support.
Secondly, there are those of your Lordships who feel that the proposed legislation would have their full support if it was separated from the anti-terrorism Bill. It certainly can be argued that the incitement to religious hatred did not commence on September 11th and is not contained by its aftermath. The members of the Inner City Religious Council of all faiths have been arguing for just such legislation for a decade or more.
Nevertheless, since September 11th there are those who have not been slow to stoke up faith tensions for their own reasons. The noble Lord, Lord Desai, at Second Reading suggested that supposed religious hatred is in fact racially motivated and that our existing laws are therefore sufficient. I fear that some racist groups are now more sophisticated than noble Lords might surmise. In my capacity as co-chair of the Interfaith Network for the UK I have received reports of white racist groups seeking meetings with Sikhs or Hindus, using the message:
"Of course you are good citizens, it's the Muslims which threaten us all".
Such white racist groups are more than ready to use religious hatred in their divide and rule policy for weakening minority ethnic communities.
For those reasons, I believe that the proposed legislation can legitimately be found in a Bill dealing with anti-terrorism. But even if I did not believe that, I would agree with the views expressed by the noble Lord, Lord Ahmed, at Second Reading that the legislation is better found here than nowhere.
I cannot follow the noble Lords who, like the noble Lord, Lord Lester, support the proposed legislation but not in the Bill. We should grasp this opportunity for much needed reform which has been illuminated more clearly since September 11th.
Lord Lester of Herne Hill: My Lords, I am very grateful to the right reverend Prelate for giving way. As he was good enough to mention my name, perhaps he can deal with one of my main objections: the anomaly of the offence of blasphemy and the way in which that can distort this new offence unless it is abolished first.
The Lord Bishop of Southwark: My Lords, I thank the noble Lord. I shall come to that matter before the end of my speech.
In pressing your Lordships to go ahead, I am encouraged that the view that I have expressed is also the viewpoint of the main-line religious leaders of all faiths in this country. As co-chair of the Interfaith
1178
Network for the UK, I am perhaps in a position to help the noble Lord, Lord Dixon-Smith, when he questions whether such faith leaders have in fact given their full support. For example, Mr Iqbal Sacrani, the general secretary of the Muslim Council of Great Britain, Mr Neville Nagler, the Chief Executive of the Board of Deputies of British Jews, Mr Indarjit Singh, director of the Network of Sikh Organisations, Mr Om Sharma, the president of the National Council of Hindu Temples (UK) and Mr Paul Seito, the co-ordinator of Buddhist organisations in the UK, have been consulted during the past week. They all support this legislation.
Of course there are those who argue contrary to that, but most of the representative religious leaders are of a common mind. It would be remarkable if they were not because for many years they have sought such legislation.
Thirdly, there are members of your Lordships' House who believe that the proposed legislation, limited as it is to incitement to religious hatred, is not adequate; and that it should be withdrawn and become part of a wider Bill which also includes religious discrimination. I totally agree that the legislation before your Lordships' House does not do everything that could be desired, but it is a major first step along the way. The workings of the legislation will give us invaluable experience in the years ahead as it is followed by further legislation tackling religious discrimination. I also add that in such legislation there would be space to deal with the blasphemy law. Its day indeed may have come. It would certainly be easier to view its departure were the clauses regarding the incitement to religious hatred already on the statute book. Certainly, we, from the Church of England, would view the departure of the blasphemy law with much easier hearts were that so.
I conclude by reminding your Lordships that the Bill deals with behaviour and not belief. A wise friend of my acquaintance says of those who mock his ancestry, "It's not them I dislike; it's their behaviour I find difficult". This legislation is about divisive and antisocial behaviour—the incitement to religious hatred. It is not about belief. With that in mind, I hope that your Lordships will not support the amendments seeking to remove these clauses.
Lord Dholakia: My Lords, we heard and rehearsed the arguments for and against incitement to religious hatred at Second Reading, in Committee and in a debate instigated by the noble Lord, Lord Campbell of Alloway. Many of us receive a large number of letters and telephone calls on the subject. They demonstrate that, whichever side of the argument one listens to, the general public—including some members of the ethnic minorities—are adamant that the Anti-terrorism, Crime and Security Bill is not the place for such legislation.
The Attorney-General cited some cases. May I ask him why it was not possible to prosecute when many of them breached the Public Order Act 1986? Some breached the Protection from Harassment Act 1997.

1179
My noble friend Lord Lester of Herne Hill has the appropriate bible—if I may use that expression—from which to cite all the examples.
At the heart of the debate are a number of important issues. They include the blasphemy laws—as ably demonstrated by my noble friend—the limits of free speech, cultural pluralism and the place of minorities in British society. Many of them are part of an on-going agenda, but that is not to argue that free speech should be valued more or less highly than civil order or racial harmony. That confirms that a public debate and consultation process are necessary before we legislate. That consultation has not taken place.
If we cannot take the public, including the ethnic minorities, with us, the law is bound to fail. That is why, while we broadly support the need for incitement legislation, we believe that it should follow detailed public consultation and take into account matters relating to religious discrimination. We are concerned about matters relating to cases in which the hatred is directed against groups abroad. That will immediately bring the Government into the politics of the subcontinent and the Middle East. As I asked at Second Reading: do we really want those battles to be fought on the streets of London?
The concession that the Attorney-General would be responsible for the decision whether to prosecute does not answer the question of why it is necessary to include it in emergency legislation of this kind. The record on incitement to racial hatred has been poor. In a debate on 21st November, the right reverend Prelate the Bishop of Oxford pointed to the difficulty that since 1988 only 42 defendants have been successfully prosecuted and in 1999 there were only four prosecutions, resulting in only three convictions. We are now being asked to pass legislation that could have no better outcome.
One argument that is often forgotten, but of which the noble Lord, Lord Desai, well reminded us, is that an extremist hell-bent on violence is not going to ask about one's religious beliefs. We have seen that not only the Muslim community but almost all visible minorities are victims of vile attacks perpetrated by extremists who will circumvent the law so that they can carry out their propaganda against vulnerable communities.
The Home Office must accept that including incitement to religious hatred in this emergency legislation is resented by members of the Muslim community. Despite the Government's denials, they give the impression that that faith is intrinsically tied up with the events of September 11th. That is quite the reverse of what the Government intended, but they have only themselves to blame.
When will the Home Office learn that these measures are resented not because they are inappropriate but because they patronise ethnic minorities, arid the Muslim community in particular? The Home Office should understand that religious hatred is not new. I could have told the Minister about that when I came here in 1956. As early as then, when I was living in Sussex, the Sussex Racial and Religious Preservation Society was formed.
1180
The Government are shortly to produce a consultation document on Article 13 which will take into account discrimination based on religion. The matter needs to be considered not in a piecemeal fashion but as a comprehensive measure that will take into account the prohibition of direct and indirect discrimination on grounds of religion or belief. We need not worry about the statutory definition of religion or belief because practices that are contrary to human rights as guaranteed by the Human Rights Act 1988 will not be lawful. The Minister would have our full support if legislation were separated from the Bill. That would allow us seriously to consider what was appropriate and how we could command the respect of all our citizens.
For that reason, we support the amendment. We are not alone. Even the Commission for Racial Equality argues that a distinction can be made between anti-terrorism measures that can be justified as necessary in the current situation and those that have wider implications and should be given greater consideration in Parliament.
5.45 p.m.
Lord Peston: My Lords, I rise—paradoxically, now—rather reluctantly. I wrote to my noble friend the Minister when the provisions first appeared to say that I could not possibly support Part 5 and would vote against it; I intend to do so in its entirety today.
I rise because I regard myself as belonging to a great political party. It would be appalling if, when the history of our time is written, at least one voice did net speak out against what I regard as a thoroughly illiberal measure and one totally alien to the history of the party of which, as I say, I am proud to be a member. At least one voice from our side must say that the Bill is a mistake.
I must admit—this is where I differ from some noble Lords with whom I hope to be voting later—that I would oppose such legislation more generally. I can think of no appropriate form of the legislation in respect of which I could put my hand up and say that it is compatible with liberal parliamentary democracy or the open society. Indeed, the main thought in my mind as I listened to those supporting the provisions is that the terrorists have won. If we pass this part of the Bill, we will undermine a fundamental principle of parliamentary democracy. That is the business that the terrorists are in: the destruction of parliamentary democracy.
Further than that, returning to my early days as a student, when I had the great honour of being taught by Karl Popper, I believe that the open society is the essence of what we, the Americans and others do. The crime of religious hatred—whatever that means, and I still have great difficulty following my noble friends' explanations of what it means—is incompatible with the open society.

1181
The provisions have nothing to do with the protection of individuals against abuse, threats, and all that sort of thing. We have a legal system to do that; we have people who speak up for such people. I agree that sometimes, especially in the case of race, not enough is done. The lesson to learn from that is that we should enforce our existing laws properly, not invent this one.
Finally, Amendment No. 92A, which I know that my noble and learned friend proposes honourably and with a desire to help, really gives the game away. My right as a citizen of this country cannot possibly depend on what the Attorney-General—and I do not mean this specific Attorney-General but the office—decides are grounds for conduct that consists of the legitimate expression of religious belief. I decide what I regard as a legitimate expression; I do not require the office of the Attorney-General either to tell me or to be in a position to tell me.
The Earl of Onslow: My Lords, I shall be so brief. I hate a caste system, which condemns someone to be a hewer of wood or a drawer of water, that is religious-based. I hate the concept that a widow can be forced to commit suttee. I hate forced marriages. I hate female circumcision. I hate the concept that people should be stoned to death for adultery. I hate that hands should be chopped off because of thieving. I hate that people should be forced to wear burkas so that they cannot be seen. I hate the rantings of Protestant extremists against the evil of sodomy. I hate the Wahhabite system of law. I hate all of those because they are wrong. I also think that it is wrong that I should be criminalised for hating, and encouraging others to hate, something that is held to be religious by a large group of religious people when I know those things to be wrong.
The Attorney-General shakes his head and says, "No, that's not it". If that is not the point, what is the point? Will I be able to say that I hate a religious doctrine? That is the dilemma that faces us all. Let us leave it to the laws of harassment, sedition and offensive behaviour; let us not pursue these religious lines. The issue is too difficult. Let us also remember that the Pope rescinded the Great Papal Bull Regnens in Excelsis, which absolved all Roman Catholics from loyalty to the United Kingdom, only in 1967, or so the noble Lord, Lord St. John of Fawsley—a totally reliable source—told me.
Let us be very careful about making things that I hate illegal to hate.
Lord Taverne: My Lords, I shall give one very brief example, which appears in the current edition of the Economist, to demonstrate the dangerous territory that the Bill is entering into. There is apparently a radio station called Premier Christian Radio, against which a complaint was made by the Mysticism and Occult Federation. The Radio Authority, which judges such complaints, found some of the federation's criticisms valid, and it criticised the radio station for referring to other religions as full of superstitions and
1182
absurdities; for derogatively referring to non-Christian faiths as "Buddhism, Hinduism and rheumatism"; and for publishing an advertisement from a Church promising certain listeners deliverance from "occultism".
The Radio Authority is not concerned with religious hatred, it is concerned with good taste and decency. The above example, however, shows how difficult it is, both currently and in the future, to draw a line between hurting feelings and what amounts to inciting hatred. It could well be that, when feelings run high, regardless of the guidance that is issued by the Attorney-General, those who make certain types of statement will be prosecuted, freedom of speech will be suppressed, and the type of situation that we saw when a fatwa was issued against Salman Rushdie may well be repeated.
Lord Mackay of Clashfern: My Lords, I want briefly to comment on Amendment No. 92A. The fact that the Attorney-General moved the amendment demonstrates that he is not 100 per cent confident that the Bill's current definition is clear to everyone who might be affected by it. It is an indication that, so far, the Bill's definition of the crime in question is not very adequate. I am sure, as has been said more than once, that it is a very difficult issue. The Law Commission examined the issue and concluded that it would be wise to have no provision at all to address it, although it reached that conclusion against the background of a different time and in considering whether the law of blasphemy should be removed from our common law.
I want to put one question to the noble and learned Lord the Attorney-General—whose thoughts on the issue must be fairly right, as he said that guidance would have to be available when this emergency Bill receives Royal Assent. I am sure that your Lordships recollect the debates that we have had over the years on various provisions on abortion. The most recent such debate was on the Human Fertilisation and Embryology Act 1990, the scope of which made it possible for the first time to include this type of amendment in a government Bill.
The difference between those who agree with abortion and those who disagree with it is a religious one. Generally, those who disagree with it have the view that human life exists from the time of, or very shortly after, conception. That is in the nature of a religious belief. Those who are against it hold the view that those in favour of abortion are killing babies by the hundred. I think that most people would regard killing babies by the hundred as a fairly hateful matter. Therefore, if I say that those who are in favour of abortion are in fact promoting the killing of babies by the hundred, surely I am inciting hatred against them as a group, as those who perform the abortions are said to be murderers, and those who agree with abortion are said to be supporters of murderers. The example demonstrates that we are seeking to legislate on a rather difficult subject.

1183
It may be that the Law Commission, having long and very carefully considered the matter, has reached the right conclusion after all. Regardless, it seems that we cannot properly go down this road as quickly as an emergency Bill would seem to require.
Lord Neill of Bladen: My Lords, I should like to follow up the remarks of the noble and learned Lord, Lord Mackay, by drawing attention to Amendment No. 92A, which states:
"The Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence … or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief".
That is an extraordinary power to confer on an office-holder. The Attorney-General can issue guidance, and presumably he can amend his guidance. If he can issue it, he must be able to say, "I have changed my mind" and revoke it. Therefore, we are effectively saying that the scope of the operation of these provisions depends on the opinion that is formed from time to time by the Attorney-General. That cannot be a proper way in which to legislate. If we wish to express something as being a criminal offence, we should be capable of defining it. It is totally unacceptable, and to my knowledge unprecedented, to allow the definition or scope of provisions of an Act of Parliament to depend on the opinion from time to time of a single officer.
Lord Desai: My Lords, I rise to support Amendments Nos. 93 to 98. As I have consistently made clear, I do not like Part 5 of the Bill. The noble and learned Lord, Lord Neill, put his finger on my primary concern about Amendment No. 92A: the lack of clarity on whether future guidance from the Attorney-General will expand the scope of the provision although we do not agree to expand it.
I am not concerned about specific individuals. As we know, however, British tabloids can drive us to a political frenzy, such as on the issue of dangerous dogs. I can very easily imagine a situation in which, as in the Salman Rushdie case, there is frenzy-driven tabloid propaganda saying that the Attorney-General must immediately take a given course of action. There will be no stopping once we start down such an illiberal road.
I still believe that, if we want to stop attacks on Muslims or arty other minority, we shall have to find a better way of defining those groups than by resorting to the label of religion. That is the wrong label. However, we can do that only if we put together all the religious issues—for instance, discrimination, blasphemy and hatred—and perhaps have a special committee of your Lordships' House to examine the matter in detail. After that, we should return to the legislation and deal with it properly. Bad legislation in this respect will be extremely harmful.
6 p.m.
Lord Elton: My Lords, the noble and learned Lord, Lord Neill, and my noble and learned friend Lord
1184
Mackay of Clashfern seem to have torpedoed completely the palliative Amendment No. 92A, which was intended to persuade your Lordships to go down this route.
I rise as a loyal member of the Church of England in order to try to persuade the right reverend Prelate to have at least a moment of doubt about what he advises us. There are only 24 hours—perhaps a few more; 30 hours—in which an alternative amendment can be tabled. Under ordinary procedure, not only would we have had weeks of discussion between stages so that our positions could have been fully realised, but we would have a full three days in which to carry out further discussions in order to find an alternative palliative amendment.
Therefore, while I agree with the right reverend Prelate that something must be done, that is far from saying that anything will do. I do not believe that this will do and under this procedure I do not see how we can arrive at anything which will do. It follows, does it not, as we have been saying all along, that this is the wrong place for this provision? It should comprise a Bill of its own and not be in this one.
Baroness Richardson of Calow: My Lords, I am well aware that many of our faith community leaders are in favour of the legislation being passed. However, it has been expressed to me on the basis of half a loaf being better than none. It is said that it will go some way towards helping against what they feel to be an injustice; that some parts of the community are protected and that they are not. I am not convinced by that argument. Our faith communities and all religions deserve better than to be put in that negative light. We have consistently said that the events of 11th September and the conflict are not religiously based, so I cannot see the justification for including the provision in an anti-terrorism Bill.
I hope that we shall pass the amendments. The Government are committed to examining religious discrimination, which involves religion and belief. That covers an area wider than simple religious understanding. I hope that we shall have considered reflection of, and be able to put in a more positive light, the role that religions play in our community. We should carefully consider how that can be protected as a force for good within our common life.
Lord Tebbit: My Lords, I do not want to delay the House and I do not want to disagree with the Home Secretary just when he is coming around to agreeing with me. However, I believe that the clause is out of place not merely in the Bill but in any legislation. Perhaps I may respond to a point which arises from what was said by the noble Baroness. Lady Richardson.
The followers of bin Laden are undoubtedly acting as they do out of a religious belief. I have heard a number of Ministers who could be held to be guilty of causing religious hatred of the followers of bin Laden because of what they do. Those followers say that they do what they do because of their religion. That immediately goes to the definition of a religion.

1185
I notice that the Bill contains a reference to a religious belief or a lack of religious belief. However, the amendment tabled by the noble and learned Lord the Attorney-General refers only to
"the legitimate expression of religious belief".
Straightaway, at this stage in this hurried procedure through which we are going, we find inconsistencies in the legislation that is before is.
What is an expression of non-belief? What is an expression of irreligious belief? Are they different? What of cults? Are they protected? Would we think it right to be protecting the local chapter of a Haitian voodoo group? I believe that we are rapidly getting ourselves into a great muddle. It is a great muddle into which we do not need to get.
We can escape all those difficulties simply and easily without requiring any of these definitions; without requiring any discussion of whether a fringe comedian at the Edinburgh Festival could infringe the law; without relying on the whim of successive Attorneys-General to tell us what the law is. We should return to the common sense use of prosecuting for the use of insulting words or behaviour whereby a breach of the peace may be caused.
If we were to increase the penalties for such behaviour to, say, seven years, we would have the perfectly flexible and useable weapon; that is, if a comedian went beyond the bounds of good taste or if someone in a pub among his friends of similar quirky beliefs was insulting about people who would never hear what was said, it could all be ignored. But if a hooligan of some kind went into a place where there were members of a religious group and chose to insult them and stir up hatred against them, we could proceed easily and simply with law that has been used for years and is well understood.
We no not want this proposed legislation and we should get rid of it. It is a mess; it is a danger; and it is a disgrace to the legislation which should come from this Parliament.
Lord Parekh: My Lords, I am afraid that mine will be a slightly dissenting voice because I have the feeling that many noble Lords are already persuaded by the amendments. However, that is the other side to the story and I hope that your Lordships will allow me to say it.
In the debate on the issue there are four important questions. First, should there be an offence of incitement to hatred'? I believe that the answer is yes. Secondly, should incitement to religious hatred be an offence? The answer seems to me to be yes. Thirdly, as no definition of religious hatred is ever perfect, do we have it just about right? The answer seems to me to be broadly yes. Fourthly, are we right to make it part of an anti-terrorism Bill? Again, in my humble view, the answer seems to me to be yes.
Perhaps I may briefly explain those views. Our democracy is based on the principles of rational debate and dialogue. Obviously, it is incompatible with intimidating and aggressive utterances. That has become
1186
particularly urgent because of our multi-cultural society which requires the sense of a dialogue between civilisations and cultures. It is crucial therefore to save the parameters of the public debate and to ensure that our public life is free of inter-ethnic or inter-religious hatred. Hatred is the enemy of dialogue and declares a war on a section of our citizens.
We must also bear in mind that almost all forms of racial hatred grow out of religious hatred. For centuries, for example, Jews were attacked on religious grounds. Their religion was condemned and they were accused of deicide. It was argued that they were therefore objects of legitimate hatred. That kind of evil way of thinking created a climate whose consequences were exploited by the Nazis in the 1930s. The same was true of the Hindus whose so-called animalistic religion was condemned and whose people were declared legitimate objects of hatred.
In your Lordships' House and elsewhere it is sometimes said that this clause relating incitement to religious hatred, is a sop to Muslims, that it singles them out for special treatment and may even prove counter-productive. I do not see the clause in that way at all. The clause protects no one and no particular community; it protects only our democratic system by banning utterances that are likely to poison relations between different communities. Such inciteful utterances may come from Muslims, as in the past they have tended to do, and so they will face the full rigour of the law. If they come from other groups, those groups, in turn, will receive the full rigour of the law.
Sometimes it is said that the Bill will curtail freedom of expression. Again, I do not see why. The Bill is clearly directed to stop certain kinds of behaviour—not utterances. It deals with utterances only in so far as they are action-oriented.
Lord Lester of Herne Hill: My Lords, I thank the noble Lord, Lord Parekh, for giving way. Am I right in thinking that in the Joint Committee on Human Rights he made clear in his questions to the Home Secretary that his position is that the Salman Rushdie novel, The Satanic Verses, should have been prosecuted as a criminal offence? I ask the question because the noble Lord says that this Bill would not threaten free speech. Am I right in saying that that is his position?
Lord Parekh: My Lords, I shall come to that point in support of my argument. The Home Secretary made the matter clear in his evidence to the Joint Committee on Human Rights. In answer to a question of mine he said that the Bill would not have stopped Rushdie's The Satanic Verses. He also said that those utterances that are designed to demean, offend or degrade others are left completely untouched by the provisions of the Bill. In other words, the Bill is concerned with only those utterances that are likely to lead to certain forms of hatred and that are likely to precipitate action against certain groups of people. Therefore, I believe that the Government's intentions are broadly liberal and that any court dealing with the matter would want to take into account the kind of evidence that the Home Secretary gave to the Joint Committee.

1187
Many noble Lords have asked why Part 5 should be included in a Bill dealing with terrorism. I may be totally naive, but I like to believe that the connection is absolutely clear. Terrorism springs from hatred. Of all forms of hatred, religious hatred is the worst because it breeds fanaticism and justifies itself in the name of no less a personage than the Almighty. We have seen that in the Middle East and elsewhere. Religious hatred needs to be stopped or at least discouraged. Hence I see Part 5 as part of a campaign against terrorism in general.
Questions have also been raised about what constitutes a religion or a religious group. Similar questions were raised in the mid-1970s when we were talking about incitement to racial hatred. After all, if race and ethnicity have not proved difficult to define, I do not see why religion should pose a problem. In short, the Bill is directed against religious groups and not against religions. It defines hatred in fairly narrow and tight terms and as far as I can see it has safeguards against indiscriminate use of the provisions of the Bill. Therefore, I am inclined to support the Bill and to reject the amendments.
6.15 p.m.
Baroness Buscombe: My Lords, I shall be brief. I have a few points to add to the debate and I want to speak to Amendment No. 93 standing in my name. The prospect of a new law on religious hatred has attracted criticism from a wide range of groups. The Home Secretary is most concerned to protect Muslims with a new offence, yet Muslims are divided on it. As the noble Lord, Lord Alton, has already said, in a memorandum to the Home Affairs Select Committee in November, several Muslim groups have expressed grave reservations about the prospects of such an offence. Some of them may have been persuaded by the Home Secretary and the current wording of the Bill, but others have not. Given time, consultation and careful drafting, their fears may be allayed, but as it stands this new offence is still a cause of grave concern to many Muslims, let alone Christians and those of other faiths or no faith.
The Home Secretary has one rather eccentric success in that he has managed to unite atheists and religious believers with comedians and journalists who have come together to condemn this new offence because of the potential effect on freedom of speech. While we all deplore religious hatred, this is not the way in which to deal with it. Many religious people have a real concern that the new religious incitement offence will cause more harm than good. Instead of protecting them, they fear that the new law could be turned against them. Religious people should be free to argue passionately in support of their beliefs as should those with no faith. Free speech and robust debate that pose no danger to anyone risk being caught by the new offence.
Lord Avebury: My Lords, is the noble Baroness aware that under legislation relating to Northern Ireland there is a provision that is almost word for
1188
word the same as may be enacted if Part 5 is put on to the statute book and that in 14 years there have been only four prosecutions?
Baroness Buscombe: My Lords, I am very aware of that. I shall quote directly from the Christian Institute which has said:
"we know about anti-religious sentiment. We deal with cases of individuals who arc mistreated because of their beliefs. To silence those who disagree with us we could easily make use of this new law if it is passed. But we do not believe it would he right to do so".
We are moving in dangerous territory. This issue should be left out of the Bill altogether. These provisions touch on such a sensitive area of our national life and they cannot be dealt with properly in the highly pressurised setting of a Bill on terrorism that is being raced through Parliament in time for Christmas. I entirely agree with my noble friend the Shadow Home Secretary, Oliver Letwin, MP, to whom reference has been made by the Attorney-General. The Government's motive is noble, but with respect, their actions are misguided. The House does not need to oppose or to reject Amendment No. 92A; instead I urge your Lordships to support Amendment No. 93 through which we can remove the offence of incitement to religious hatred from this Bill.
Lord Goldsmith: My Lords, I know the hour is late and I sense the mood of the House, but I want to speak to a few points as there is confusion. I respect some of the views that have been expressed and, with respect, I consider some of the views to be misguided.
Does this House believe that such conduct should be prohibited or condoned? I understand, with few exceptions, that the House is of the view that conduct involving the hatred of individuals because of their beliefs is not appropriate and should not be condoned. Therefore, one has to ask whether it is right to outlaw such behaviour as a criminal offence, in what form and when?
I invite noble Lords to pay the closest possible attention to the views that have been expressed by the right reverend Prelate the Bishop of Southwark who has spoken on his own behalf and on behalf of others. Within the past week he has obtained the views of representative leaders of the British religious communities, including the Board of Deputies of British Jews, the Muslim Council of Britain, the Network of Sikh Organisations, and the National Council of Hindu Temples. The noble Lord, Lord Alton, referred specifically to the Muslim Council of Britain and to the appendix put in to the Home Affairs Select Committee in another place. In that memorandum the views expressed by the signatories was that at the moment they did not want to see legislation. As I told noble Lords, the Muslim Council of Britain has now changed its view on that. After reflection, having seen the provisions—the paper was written before the Bill was published—it has agreed the statement which I mentioned earlier. That is confirmed in what the right reverend Prelate the Bishop of Southwark said.

1189
I also ask noble Lords to pay the closest attention to the words of my noble friend Lord Parekh. The views expressed in his study in relation to multiculturalism in this country deserve, I suggest, the closest possible respect.
I respect the view of the noble Lord, Lord Alton, and it is important to note it. He spoke of the need for deepening our culture and cultural inclusiveness. I entirely agree with that. However, sadly, the people whose conduct we want to prevent are not susceptible to that deepening of culture and certainly not in the timescale of which we speak.
Let me deal with specific topics. First, are the ingredients of the offence sufficiently defined? I have been at pains at Second Reading, in Committee and today to identify the ingredients of the offence. They are the same ingredients as existing offences: the offences of incitement to racial hatred. They have not been dreamt up for this Bill. Those ingredients are there and it is important to focus on them. I shook my head at the remarks of the noble Earl, Lord Onslow. He talked about violent disagreement with the tenets of a religion. As I sought to make clear, the ingredient of the offence is inciting hatred of a group of people not of the religion. That is clear from the provisions of the Bill. The noble Lord, Lord Tebbit, and other noble Lords shake their heads. Because of the suggestion of the noble Lord, Lord Thomas of Gresford, I had placed in the Printed Paper Office a copy of Part 3 of the Public Order Act 1986, as it would be amended, which identifies what is meant by religious hatred. It is on the face of the Bill. It means hatred against a group of persons defined by reference to religious belief not to religion. The noble Lord, Lord Parekh, was right in relation to that.
Lord Elton: My Lords, will the noble and learned Lord tell us how that would bite on the case of the Muslim woman which he cited at the beginning of his speech? From his example, I understood that the hatred was directed at her.
Lord Goldsmith: My Lords, the hatred is against a group of persons of which she is a part because she is a Muslim. I hope that that helps the noble Lord.
Noble Lords: Oh!
Lord Goldsmith: My Lords, I do not understand noble Lords' amusement. I have obviously said something which I should not have done.
Lord Elton: My Lords, I think that it was a comment on my ability to take in what the noble and learned Lord was saying.
Lord Goldsmith: My Lords, at least the noble Lord has not been accused of being too young to understand
1190
what the Bill is about. I suppose that I should be grateful that I was not accused of not being a lawyer. That is the other criticism which has been made.
Lord Lester of Herne Hill: My Lords, I am not accusing the Attorney-General of anything. However, is not the Muslim woman in the case he cited already adequately protected by existing criminal law, including the protection against harassment legislation which we enacted only recently?
Can the noble and learned Lord also deal with the point raised by the noble Lord, Lord Tebbit, that his guidelines will not cover those who have no religious belief?
Lord Goldsmith: My Lords, let me deal separately with those questions. First, when the noble Lord, Lord Lester, said that no events had occurred since 11th September, I was going to intervene to ask whether he had read the appendix to the report of the Select Committee on Home Affairs. It sets out incident after incident attributed to events since 11th September. The first state-funded Islamic school, Islamia Primary School, in Brent was forced to close after threatening telephone calls since the incident in the USA on Tuesday 11th September. A school secretary wearing a hijab was abused verbally while out shopping. On Monday 17th September, girls in hijabs were spat on. There are examples after examples. Noble Lords who read the appendix cannot doubt that those events have occurred since 11th September.
Lord Tebbit: My Lords, are those incidents not punishable under existing criminal law?
Baroness Kennedy of The Shaws: My Lords, perhaps I may pick up on that point. Would not Section 4 of the Public Order Act deal with those very allegations? It states:
"A person is guilty of an offence if he … uses towards another person threatening, abusive or insulting words or behaviour, or … distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting".
Making those kinds of abusive comments to a woman in the street wearing a veil would be an offence under that section.
Lord Goldsmith: My Lords, Section 4 of the Public Order Act makes a person guilty of an offence if he uses threatening, abusive or insulting words,
"with intent to cause that person to believe that immediate unlawful violence will be used against him … by any other person",
or that person is likely to believe that such violence will occur. It is a victim orientated offence.
The reason for proposing the amendment was not because the ingredients of the offence are insufficiently defined. It was for another reason. With respect to the noble and learned Lord, Lord Mackay of Clashfern, it is not because I have doubts as to what the offence meant but for this reason. In another place, Sir Brian Mawhinney raised the question whether or not it would be possible to find a way of putting a reference

1191
to legitimate expression of religious belief in the Bill. In this House a similar point was made. The proposal was to help in this respect.
I make two points about the position of the Attorney-General. It is already the position, as it is under a number of Acts of Parliament, that the consent of the Attorney-General, and in Scotland the Lord Advocate, is required for certain offences to be brought. It does not mean that the Attorney-General identifies the ingredients of the offence. That is for the court. Nothing I say could ever make criminal conduct which is not within the words of the statute. The consent—it has been inserted by Parliament on a number of occasions—filters out cases, to prevent them from going to court, where it is not in the public interest for them to be brought to court. It is a question of public interest not an executive decision. I do not say this because of the accusation of youth. But some noble Lords may recall that in 1924 a Labour Government fell because the Attorney-General of the day gave and withdrew a consent for a prosecution which was believed to have been motivated by political considerations. Ever since that day it has been an absolute tenet of faith to successive attorneys-general that the decision as to whether a prosecution takes place—for example, I give consent to explosive substances cases—is given entirely on the basis of public interest not political consideration.
Lord Campbell of Alloway: My Lords, every noble Lord, by and large, knows about the powers of the Attorney-General. Can the noble and learned Lord say whether there is any precedent for the type of administrative power sought under the amendment to be put in the hands of one man, the Attorney-General?
Lord Goldsmith: My Lords, it is not an administrative power. It is a statement that I was offering to publish guidance, to police and prosecutors, as to the circumstances in which I would consent to or institute proceedings. I shall come to precedent. I cannot change the Act. I do not seek to do so. It is not an administrative power to change the ingredients of the offence. It is to give some assurance on what I have said repeatedly in this House: that legitimate expressions of religious belief are not, in my view, criminal and will not be prosecuted. It is for that reason only.
I turn to the third question. Is it necessary to do so now? I was surprised to hear the noble Lord, Lord Lester of Herne Hill, suggest that it was not necessary to do it now. I have read to noble Lords what the Joint Committee on Human Rights said about this being a pressing social need, noting that the United Nations Human Rights Committee had urged us to introduce such legislation.
Although coupling it with the question of blasphemy, the noble Lord is on record as saying that reforms would protect minority groups such as Jews, Sikhs, Muslims or Hindus from serious public order offences without unnecessarily interfering with freedom of speech and that such a law would not threaten satire and powerful criticism of religious beliefs or the lack of them.
1192
It is said that the Law Commission formed the view that it did not think such an offence was necessary. That is not right. In paragraph 2.35 of the report in 1985 the Law Commission said that,
"if such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence, penalising the publication of matter likely to arouse hatred towards persons on account of their race, so that it would penalise publication of matter likely to arouse hostility to others on account of their religious beliefs".
In other words, the Law Commission took the view a number of years ago—this is not a new issue—that if there was a pressing social need, then the right way to deal with it would be to introduce some fairness of this sort.
Ultimately, the question is whether to do it now. I urge noble Lords, despite the expressions that I have detected during the course of this debate, to follow what the right reverend Prelate the Bishop of Southwark said. It is now that we can protect our community. It is now that we can send out a message that we want them not to be vulnerable; that we want to be inclusive. To throw this out now would be sending exactly the opposite message. I urge your Lordships not to send that message.
On Question, amendment agreed to.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 93.
Leave out Clause 39.
The noble Lord said: My Lords, I beg leave to speak also to Amendment No. 94 and Amendment No. 95.
Lord Carter: My Lords, if it would help the noble Lord, I think that the House wishes to reach a decision on whether Amendment No. 93 should be dealt with. I think that the House wishes to come to a decision on that now and then, if he wishes to speak to the other amendments in their place on the list, of course he can do so.
Lord Campbell of Alloway: My Lords, I am obliged to the noble Lord. The essence of the problem—
A Noble Lord: No!
Lord Campbell of Alloway: My Lords, Amendment No. 93 has not been moved other than by myself.
Lord Carter: My Lords, if it would help the noble Lord, the debate has taken place around the virtues or otherwise of Clause 39. The House now wishes to reach a decision on whether Clause 39, as amended, should remain a part of the Bill. After the House has taken that decision, it can then move on to the other amendments to which the noble Lord wishes to speak.
Lord Campbell of Alloway: My Lords, I beg to move.
6.35 p.m.
On Question, Whether the said amendment ( No. 93) shall be agreed to?
Their Lordships divided: Contents, 240; Not-Contents, 141.

Division No. 1

CONTENTS

Aberdare, L.

Ezra, L.

Ackner, L.

Falkland, V.

Addington, L.

Fearn, L.

Alderdice. L.

Ferrers, E.

Allenby of Megiddo, V.

Flather, B.

Alton of Liverpool, L.

Fookes, B.

Ampthill, L.

Forsyth of Drumlean, L.

Anelay of St Johns, B.

Fowler, L.

Arran, E.

Fraser of Carmyllie, L.

Ashdown of Norton-sub-

Freeman, L.

Hamdon, L.

Geddes, L.

Astor, V.

Goodhart, L.

Astor of Hever, L.

Goschen, V.

Attlee, E.

Gray of Contin, L.

Baker of Dorking, L.

Greaves, L.

Barker, B.

Greengross, B.

Barnett, L.

Greenway, L.

Beaumont of Whitley, L.

Griffiths of Fforestfach, L.

Bell, L.

Hamwee, B.

Bitten, L.

Hanham, B.

Black of Crossharbour, L.

Harris of High Cross, L.

Blackwell.

Harris of Richmond, B.

Blaker, L.

Hayhoe, L.

Blatch, B.

Henley, L.

Bledisloe, V.

Higgins, L.

Boardman, L.

Hodgson of Astley Abbotts, L.

Brabazon of Tara, L.

Holderness, L.

Bridgeman, V.

Holme of Cheltenham, L.

Brigstocke, B.

Home, E.

Brooke of Sutton Mandeville, L.

Hooson, L.

Brookeborough, V.

Howe, E.

Brougham and Vaux, L.

Howe of Aberavon, L.

Bruce of Donington, L.

Howe of Idlicote, B.

Burnham, L.

Howell of Guildford, L.

Buscombe, B.

Hussey of North Bradley, L.

Byford, B.

Hylton, L.

Caithness, E.

Inglewood, L.

Campbell of Alloway, L. [Teller]

Jacobs, L.

Campbell of Cray, L.

James of Holland Park, B.

Carnegy of Lour, B.

Jellicoe, E.

Carr of Hadley, L.

Jenkin of Roding, L.

Carrington, L.

Jenkins of Hillhead, L.

Cavendish of Furness, L.

Jopling, L.

Chalfont, L.

Kelvedon, L.

Clark of Kempston, L.

Kennedy of The Shaws, B.

Clement-Jones. L.

Kilclooney, L.

Coe, L.

Kimball, L.

Colwyn, L.

King of Bridgwater, L.

Cope of Berkeley, L. [Teller]

Kingsland, L.

Craig of Radley, L.

Laird, L.

Craigavon, V.

Lamont of Lerwick, L.

Crickhowell, L.

Lane, L.

Cumberlege, B.

Lane of Horsell, L.

Dahrendorf, L.

Lester of Herne Hill, L.

Darcy de Knayth, B.

Linklater of Butterstone, B.

Dean of Harptree, L.

Listowel.E.

Deedes, L.

Liverpool, E.

Denham, L.

Livsey of Talgarth. L.

Desai, L.

Lucas, L.

Dholakia, L.

Ludford, B.

Dixon-Smith, L.

Luke, L.

Dundee, E,

Lyell, L.

Eden of Winton, L.

MacGregor of Pulham Market, L.

Elis-Thomas, L.

Elles, B.

Mackay of Clashfern, L.

Elliott of Morpeth, L.

Maclennan of Rogart, L.

Elton, L.

McNally, L.

Erroll, E.

Maddock, B.

1194

Mallalieu, B.

Rodgers of Quarry Bank, L.

Mancroft, L.

Rogan, L.

Mar and Kellie, E.

Roper, L.

Marlesford, L.

Rotherwick, L.

Masham of Ilton, B.

Russell. E.

Mayhew of Twysden, L.

Saatchi, L.

Methuen, L.

Saltoun of Abemethy, Ly.

Miller of Chilthorne Domer, B.

Sandwich, E.

Miller of Hendon, B.

Scott of Needham Market, B.

Molyneaux of Killead, L.

Seccombe, B.

Monro of Langholm, L.

Selsdon, L.

Monson, L.

Sharman, L.

Montagu of Beaulieu, L.

Sharp of Guildford, B.

Montrose, D.

Sharples, B.

Moore of Lower Marsh, L.

Sheldon, L.

Moran, L.

Shutt of Greetland, L.

Mowbray and Stourton, L.

Simon of Glaisdale, L.

Moynihan, L.

Skelmersdale, L.

Murton of Lindisfarne, L.

Slim, V.

Neill of Bladen, L.

Smith of Clifton, L.

Newby, L.

Stern, B.

Newton of Braintree, L.

Stewartby, L.

Nicholson of Winterbourne, B.

Stodart of Leaston, L.

Noakes, B.

Stoddart of Swindon, L.

Northesk, E.

Strange, B.

Northover, B.

Strathclyde, L.

Norton of Louth, L.

Taverne, L.

O'Cathain, B.

Tebbit, L.

O'Neill of Bengarve, B.

Tenby, V.

Oakeshott of Seagrove Bay, L.

Thatcher, B.

Onslow, E.

Thomas of Gresford, L.

Oppenheim-Barnes, B.

Thomas of Gwydir, L.

Oxfuird, V.

Thomas of Swynnerton, L.

Palmer, L.

Thomas of Walliswood, B.

Park of Monmouth, B.

Thomson of Monifieth, L.

Pearson of Rannoch, L.

Tope, L.

Peel, E.

Trefgarne, L.

Peston, L.

Trumpington, B.

Peyton of Yeovil, L.

Tugendhat, L.

Phillips of Sudbury, L.

Turner of Camden, B.

Platt of Writtle, B.

Vinson, L.

Plummer of St. Marylebone, L.

Vivian, L.

Powell of Bayswater, L.

Waddington, L.

Rawlings, B.

Wade of Chorlton, L.

Razzall, L.

Waldegrave of North Hill, L.

Reay, L.

Wallace of Saltaire, L.

Redesdale, L.

Walmsley, B.

Rees-Mogg, L.

Warnock, B.

Renfrew of Kaimsthorn, L.

Watson of Richmond, L.

Rennard, L.

Wilcox, B.

Renton, L.

Williams of Crosby, B.

Richardson of Calow, B.

Williamson of Horton, L.

Roberts of Conwy, L.

Wilson of Tillyorn, L.

NOT-CONTENTS

Acton, L.

Brookman, L.

Alii, L.

Brooks of Tremorfa, L.

Amos, B.

Burlison, L.

Andrews, B.

Campbell-Savours, L.

Archer of Sandwell, L.

Carter, L. [Teller]

Ashley of Stoke, L.

Chan, L.

Ashton of Upholland, B.

Chandos, V.

Avebury, L.

Christopher, L.

Bach, L.

Clinton-Davis, L.

Bassam of Brighton, L.

Cohen of Pimlico, B.

Berkeley, L.

Corbett of Castle Vale, L.

Bernstein of Craigweil, L.

Crawley, B.

Billingham, B.

Currie of Marylebone, L.

Blackstone, B.

Davies of Coity, L.

Boothroyd, B.

Davies of Oldham, L.

Boston of Faversham, L.

Dean of Thornton-le-Fylde, B.

Brett, L.

Dearing, L.

Bridges, L.

Dixon, L.

Brightman, L.

Donoughue, L.

Brooke of Alverthorpe, L.

Dormand of Easington, L.

1195

Dubs, L.

McIntosh of Haringey, L. [Teller]

Elder, L.

Evans of Parkside, L.

MacKenzie of Culkein, L.

Evans of Temple Guiting, L.

Mackenzie of Framwellgate, L.

Evans of Watford, L.

Mason of Barnsley, L.

Falconer of Thoroton, L.

Massey of Darwen, B.

Falkender, B.

Merlyn-Rees, L.

Farrington of Ribbleton, B.

Milner of Leeds, L.

Faulkner of Worcester, L.

Mitchell, L.

Filkin, L.

Morgan of Huyton, B.

Fyfe of Fairfield, L.

Morris of Aberavon, L.

Gale, B.

Morris of Manchester, L.

Gibson of Market Rasen, B.

Murray of Epping Forest, L.

Gladwin of Clee, L.

Nicol, B.

Golding, B.

Ouseley, L.

Goldsmith, L.

Oxford, Bp.

Gordon of Strathblane, L.

Parekh, L.

Gould of Potternewton, B.

Patel of Blackburn, L.

Graham of Edmonton, L.

Pendry, L.

Gregson, L.

Peterborough, Bp.

Grenfell, L.

Pitkeathley, B.

Grocott, L.

Puttnam, L.

Hannay of Chiswick, L.

Radice, L.

Hardy of Wath, L.

Ramsay of Cartvale, B.

Harris of Haringey, L.

Randall of St. Budeaux, L.

Harrison, L.

Rendell of Babergh, B.

Haskel, L.

Richard, L.

Hayman, B.

Rooker, L.

Hilton of Eggardon, B.

Sawyer, L.

Hogg of Cumbernauld, L.

Scotland of Asthal, B.

Hollis of Heigham, B.

Simon, V.

Howarth of Breckland, B.

Simon of Highbury, L.

Howells of St. Davids, B.

Southwark, Bp.

Howie of Troon, L.

Stone of Blackheath, L.

Hoyle, L.

Strabolgi, L.

Hughes of Woodside, L.

Symons of Vernham Dean, B.

Hunt of Chesterton, L.

Taylor of Blackburn, L.

Hunt of Kings Heath, L.

Temple-Morris, L.

Irvine of Lairg. L. (Lord Chancellor)

Thornton, B.

Tomlinson, L.

Janner of Braunstone, L.

Turnberg,L.

Jay of Paddington, B.

Varley, L.

Jeger, B.

Walker of Doncaster, L.

Jones, L.

Warwick of Undercliffe, B.

Judd, L.

Weatherill, L.

King of West Bromwich, L.

Wedderburn of Charlton, L.

Layard, L.

Whitaker, B.

Lea of Crondall, L.

Whitty, L.

Lipsey, L.

Williams of Elvel, L.

Lockwood, B.

Williams of Mostyn, L. (Lord Privy Seal)

Lofthouse of Pontefract, L.

Macdonald of Tradeston, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.45 p.m.
Clause 40 [Religiously aggravated offences]:
[Amendment No. 94 not moved.]
Clause 41 [Racial or religious hatred offences: penalties]:
[Amendments Nos. 95 and 96 not moved.]
Clause 42 [Hatred and fear offences: penalties]:
[Amendment No. 97 not moved.]
Clause 43 [Saving]:
[Amendment No. 98 not moved.]
Clause 53 [Powers of entry]:
The Duke of Montrose The Duke of Montrose moved Amendment No. 98A:
Page 26, line 21, leave out from "Scotland" to "is" in line 22 and insert "the sheriff
The noble Duke said: My Lords, I am glad to have the chance once again to bring this amendment before the House. It is a particular pleasure to find that I am joined by the Minister, who has been able to reconsider the matter. I am acting merely on the advice of the Law Society of Scotland, but the Minister has the benefit of very distinguished advice. It appears that all are now in agreement. I am sure that tonight I shall receive a more positive response than was the case with my last group of amendments.
In my view, the earlier answers I received to my questions raised a fundamental issue as regards what is to happen when legislation is subject to a "Sewel Motion" in the Scottish Parliament. The noble Lord responded by making it sound as though the Scottish Parliament merely had to agree to what the government of the day proposed, whereas it is my understanding that the Scottish Parliament would ask for and accept that the Parliament at Westminster will agree the wording that is appropriate. Thus we do have a right to consider the issues.
Speaking, I hope, with some support from the Minister, it would be good to think that the Scottish Parliament does not have a monopoly on consultation and co-operation between the parties, which they so often like to emphasise.
The amendment would ensure that in Scotland only a sheriff and not a justice of the peace would be entitled to grant the search warrants referred to in the clause. I am advised that the power to grant such warrants should extend only to sheriffs. Often a justice of the peace will not be legally qualified and may be unfamiliar with the criteria needed to grant such warrants. In the interests of justice, therefore, this matter ought to remain within the sole ambit of the sheriff. I beg to move.
The Earl of Mar and Kellie: My Lords, I should like to speak in support of the amendment. I certainly prefer the use of the 120 full-time sheriffs rather than justices of the peace. The authorities will find it much easier to get hold of full-time territorial law officers.
Baroness Carnegy of Lour: My Lords, I believe that justices of the peace have a somewhat different role from that envisaged in the Bill, so I support the amendments. On the question of the Scottish Parliament, my noble friend on the Front Bench is right that it asked Westminster to do the job. Although we hope not to do anything that the Scottish Parliament would not want to implement, it has given us the job. It is up to the Minister to keep in touch on what the Scottish Parliament wants. I take it that he has consulted on the amendment.
Lord Rooker: I do not know whether noble Lords are trying to convince me to accept the amendment. If your Lordships really want a long debate, that is fine, but we listened to what was said in Committee, thought about it, decided that it was a good idea, and had another think about it. I do not know why I am being criticised for that. We heard your Lordships' views, we listened, and we have changed our minds. We do not want to get into a constitutional debate on who likes the measure in Scotland. We like it down here; it is a reserved matter and we accept it.
While I am on my feet, I shall speak to the other two amendments that are in my name. Amendment No. 99 is a technical amendment. It tightens up the effectiveness of the operation of the Bill by removing a potential source of confusion. It could cause confusion if it were not absolutely clear under which provision a search warrant was being sought or granted. Deleting the reference to "constable" will remove the potential for confusion.
Amendment No. 104A is a drafting amendment to include Part 6 with those other parts of the Bill that will come into force on Royal Assent. Part 6, which creates very serious offences, should come into force as soon as possible. We intended to have a commencement order and another order relating to Part 6. There was an oversight in the original drafting as Part 6 should have been in the same list as the other parts that come into force on the day on which the Bill is enacted. I hope that that meets with your Lordships' approval.
The Duke of Montrose: My Lords, I am grateful to the Minister for his agreement.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 99:
Page 26, line 24, leave out "a constable or"
On Question, amendment agreed to.
Schedule 5 [Pathogens and toxins]:
Lord Rooker Lord Rooker moved Amendment No. 99A:
Page 106, line 26, leave out "White pox"
The noble Lord said: My Lords, this amendment is straightforward. On the list of "nasties" in Schedule 5, white pox is not really necessary because it is a form of smallpox. Although smallpox is not listed, it is covered by the entry in the schedule for variola virus. I beg to move.
On Question, amendment agreed to.
Clause 62 [Information about persons with access to dangerous substances]:
Lord Rooker Lord Rooker moved Amendments Nos. 100 and 101:
Page 30, line 34, leave out "(if any) as may be" and insert "as is"
Page 30, line 37, leave out "and" and insert "or"
On Question, amendments agreed to.
Clause 65 [Directions requiring denial of access]:
Lord Rooker Lord Rooker moved Amendments Nos. 102 and 103:
Page 32, line 3, leave out from "part" to "so" in line 4 and insert "of the premises as is"
Page 32, line 6, leave out "and" and insert "or"
On Question, amendments agreed to.
Clause 80 [Prohibition of disclosures in relation to nuclear security]:
[Amendments Nos. 103A and 103B not moved.]
Schedule 8 [Repeals and revocation]:
[Amendment No. 104 not moved.]
Clause 125 [Commencement]:
Lord Rooker Lord Rooker moved Amendment No. 104A:
Page 73, line 25, leave out "5" and insert "6"
On Question, amendment agreed to.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 105:
After Clause 125, insert the following new clause—
"EXPIRY

(1) Subject to subsections (2) to (5), and without prejudice to any other provisions of this Act—

(a) Parts 3, 4, 5, 10, 11 and 13 of this Act shall cease to have effect at the expiry of two years from the date on which the Act is passed; and

(b) Parts 1, 2, 6, 7, 8 and 9 of this Act shall cease to have effect at the expiry of five years from the date on which the Act is passed.

(2) If the Secretary of State considers that it may be appropriate that any Part of this Act should continue in force without amendment beyond the expiry of its specified period, he may consult such persons as seem to him appropriate to obtain their views as to whether that Part can safely and properly continue in force without amendment.

(3) If, following such consultation, the Secretary of State certifies that no substantial grounds have been advanced as to why that Part should not continue in force, he may by order provide that that Part of the Act shall continue in force for a specified period not exceeding five years.

(4) Where any Part of this Act is extended by virtue of subsection (3) it may be further extended in like manner as set out above.

(5) An order made by the Secretary of State under subsection (3) or (4) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The noble Viscount said: My Lords, after that brisk, delightful canter, we now come to the question of sunset clauses. The concern that the Bill has been pushed through with extreme haste has been patent throughout our debates. There has been no time for reflection and discussion, or for interested parties or those who can impart knowledge to input matters into our thoughts, as would happen in more normal proceedings.
It should be a principle that one does not legislate in haste. If one has to do so, the matter should be reconsidered in a relatively short time, and the Bill should be impermanent so that issues can be properly revisited. To that end, two alternative sunset clauses have been tabled, one of which is in my name and the other in the much more distinguished names of two Opposition Front Benchers.
I shall explain the difference between the two in a moment but, first, I shall deal with the necessity of having such a sunset clause. The Home Secretary said that he would review the Act after a while to see how it was working. I am sure that that should be done, and I have no possible objection to it. If criticisms are made, even if they appear to have some force, the battle will still he whether anyone will find the time to legislate on them. It is necessary to have a provision that the Bill will lapse after a certain time and then the Government can re-enact such parts of it as are efficacious and without problem, and alter those parts that are undesirable.
My amendment specifies two separate periods. The more worrying parts will expire after two years. It is fair to say that that is fairly academic in relation to Part 13 because the House has accepted the Government's earlier sunset clause for that part. Other parts would expire after Five years. I readily confess that I have made the split merely to follow the amendment tabled by the noble Lord, Lord Dixon-Smith, and others. I have not applied my own mind to the segregation.
When this matter was debated in Committee, the Minister spoke to certain parts of the Bill which he suggested were unlikely to he objectionable and, therefore, did not need a sunset clause. He may have been right about some of those parts; he may have been wrong. My attitude was ideally summed up by the noble Lord, Lord Bach, last Tuesday, when he said:
"We are attempting to deal with the problem. Whether this course provides the right answer, only time will te11".—[Official Report. 4/12/01: col. 744.]
That is the truth of the matter. There may be parts of the Bill which the Minister or, indeed, some noble Lords, think are unlikely to be objectionable; they will probably turn out to be the ones that give rise to the worst problems. There are parts of the Bill about which people have expressed great concern; it may be that some of those concerns will prove to be unnecessary. But we do not know—and that is the product of hasty legislation.
My amendment differs from the one proposed by the Opposition Front Benches in that I have suggested that if the Secretary of State wishes a particular part or parts of the Bill to continue in force, and, as far as he is aware, there is no reason why that should not be done without amendment, then he shall, if he wishes to pursue that course, consult the appropriate people to obtain their views as to whether that part of the Bill can safely and properly continue in force without amendment. By pure chance, that ties in very well with the proposal for a review, because the review will constitute the consultation and reveal whether or not there are objections to that part of the Bill.
If, following that consultation, the Secretary of State is in a position to certify that no substantial grounds have been advanced as to why that part of the Bill should not continue in force, he may continue it through secondary legislation. On the other hand, if there have been any substantial objections to it, he will have to proceed by way of primary legislation. So the contentious will come back to Parliament through primary legislation—as is intended in the amendment
1200
of the Opposition Front Benches—but, in an attempt to satisfy the point made to me by the Minister, my amendment would give the Government power to continue without primary legislation those parts of the Bill to which, after experience, no one takes any real objection.
I hope that this will accommodate the points made by the Minister when we debated sunset clauses on the previous occasion. I see the force of the argument that there is no point in Parliament re-enacting measures which have proved to be wholly unobjectionable. I hope that my amendment will prove to be a suitable compromise and will appeal to the Minister. I beg to move.
7 p.m.
Lord Dixon-Smith: My Lords, the noble Viscount has advanced the cause of Amendment No. 105, with which my Amendment, Amendment. No. 106, is grouped.
The essential difference between the noble Viscount and myself is that he believes that following an informal review—which may or may not produce a fully valid answer—where no questions are raised about certain parts of the legislation, those parts may be continued by affirmative order. He believes that that may be a satisfactory conclusion. We, having filleted the Bill slightly differently, if I may put it that way, have concluded that, because of the emergency process we will have to go through to put the Bill on to the statute book—which is what we are all determined to do—the only way this legislation should continue is through the full parliamentary process.
I do not need to speak for long on this matter. We have always made it plain that this is an emergency Bill, the principles of which we accept and agree. We have disagreed with the detail that was inappropriate for such legislation and we have disagreed with the process. Even now, after seven consecutive days, with a one day interval, this is still an ill-considered piece of legislation. We go to Third Reading tomorrow, for which amendments have to be tabled by midday. After seven solid days of debate on this matter, if we have time to think seriously of what we are about I would be extremely surprised.
Whatever happens after the Bill leaves the House, the chance of any further detailed consideration is remote. We believe that a more severe examination, in due time, is appropriate. That is our reason for tabling Amendment No. 106, which, in relation to the more controversial parts of the Bill, requires a short sunset clause. The less controversial parts of the Bill, in common with the noble Viscount's amendment, could last for a somewhat longer period.
The principle of "sunsetting" the Bill is, in effect, accepted by the Minister's right honourable friend the Home Secretary. The concessions that he has made in this area are welcome but they do not go far enough. It is with that in mind that we have tabled the

1201
amendment. I hope that it will be supported when it comes to a vote and that the noble Viscount will not press his amendment.
Lord Goodhart: My Lords, I support the noble Lord, Lord Dixon-Smith. We believe, in principle, that emergency legislation—unless it is very simple indeed—should have a sunset clause. That is why, for example, the Football Disorder Bill, which was enacted a couple of years ago, is coming back next week in a new form of primary legislation. We believe that is the right course for that legislation, and even more the right course for this Bill.
The more contentious a provision, the sooner the sun should set on it—and aspects of this Bill are very contentious. We have had lengthy debates on such aspects at Second Reading, in Committee and now at Report stage. While the noble Viscount, Lord Bledisloe, has analysed the problem correctly, he has come up with not the most attractive solution. Unfortunately, when it comes to the issue of consultation, the Home Secretary can, of course, choose the people with whom he consults. No doubt he can find helpful people, both in your Lordships' House and elsewhere, with whom he can consult and who can say, "All is well". I shall not suggest the names of those whom he may choose for that purpose.
We believe that it will be much better to take the simple and direct course and to have proper reconsideration of this legislation in Parliament, where we will have a proper opportunity to consider the parts that are contentious and the parts that turn out not to have worked well. We should do that in due course and in proper time. If provisions turn out to be unobjectionable, it will not take any time to put them back on the statute book. If any are contentious or remain objectionable, they need proper consideration—particularly in the other place. We strongly support Amendment No. 106 in the name of the noble Lord, Lord Dixon-Smith, which is more or less identical in its effect to an amendment jointly tabled by our parties in the other place. I echo the noble Lord in hoping that the noble Viscount, Lord Bledisloe, will not press Amendment No. 105 but will allow the House to go straight to a vote on Amendment No. 106.
Lord Clinton-Davis: My Lords, before the noble Lord sits down, what would happen if the Opposition did not like another Bill and chose this measure as a pretext for attacking it? That is possible in either House.
Lord Goodhart: My Lords, I am not sure that I follow the problem that the noble Lord sees. If the Bill or parts of it come back in new legislation, it will be debated. I do not see how it would be relevant to consider other Bills when dealing with further consideration of the Bill before us.
Lord Clinton-Davis: My Lords, the noble Lord has not been in the House as long as I have. I have seen
1202
governments and oppositions use legislation for purposes not directly connected with a Bill. It may be that the current Opposition, faced with a general election that may be only a year away, would see some advantage in a debate when they would not have one otherwise. I believe that the Opposition should not be so rewarded.
Lord Renton: My Lords, it has been customary for years, when emergency legislation has been in the national interest, to ensure that such a measure does not become a permanent part of our law—more especially so, if it had to be rushed through. That is true of most emergency legislation to my recollection, which goes back rather a long way. As I said in Committee, it would normally be highly desirable for members of all Front Benches to agree something. If that has not and cannot be done, it will be necessary to accept a suggestion of the kind proposed by my noble friend Lord Dixon-Smith, which seems ideal in the circumstances. I hope that Members of all parties will be glad to accept it.
7.15 p.m.
Lord Rooker: My Lords, this is the first time since I entered the House that I have witnessed a Cross-Bencher being so squeezed by the two Opposition parties. It is for the noble Viscount, Lord Bledisloe, to decide what to do with his amendment, which should not be for the convenience of the Conservatives or the Liberal Democrats. Not that I am encouraging the noble Viscount to press his amendment.
Amendment No. 105 may not fit parliamentary niceties but it is more intelligent than Amendment No. 106. That is not to disparage the Conservative Opposition—far from it. However, Amendment No. 105 is more practicable because implicit in it is that a good part of the Bill should remain permanently in force.
The amendments would virtually time limit the whole Bill. As the measure has progressed through both Houses, we have introduced two major sunset clauses that time limit the detention and justice and home affairs powers. The amendments would commit Home Secretaries to keep returning to Parliament with new legislation. The big pressure in future will be for more than one Bill. The complaint has been made that the measure's content should extend to two, three or maybe even four Bills—exactly as was said by my noble friend Lord Clinton-Davis. The Act would be used as a proxy to fight other legislation. That tactic is well known in the other place but I imagine that does not happen here.
I am sure that we would want to retain the power in Part 9, which deals with aviation security, to remove intruders from airfields. It beggars belief that towards the end of the sunset, persons should be able to say, "Soon we will be able to get on to airfields because the authorities will not have the power to remove us". We are making sure that civil nuclear sites will be secure from terrorist attack. But will we lift that protection in 2007?

1203
The Bill also outlaws aiding and abetting persons to make nuclear weapons. It is inconceivable that we would want to remove that measure in three, five or 10 years. Is it being suggested that while technicians who work with the Ebola virus will be checked out between now and 2007, we should flag up in advance that we shall not be bothered after then but may try to find some parliamentary time? I shall give way if the noble Lord, Lord Elton, insists.
Lord Elton: My Lords, I wonder whether it has occurred to the Minister that 2007 might be high time to close the loopholes found during the intervening period.
Lord Rooker: My Lords, I do not think that that is a serious suggestion. All Bills are amended from time to time. I have said that we took stock across Whitehall to make precautionary moves to close gaps in legislation in the light of terrorists rewriting the rule hook on September 11th. Before that, there had been many little niggles in various legislation but there had been no massive push for parliamentary time.
We acknowledge that the Bill introduces powers that must strike a Fine balance between individual liberty and the security of the state. No one would say that the Bill is perfectly drawn, so we have introduced safeguards. There will also be a review of the mandatory powers in Part 11, if they are ever used. We want to go the voluntary route on data retention but if we go the statutory route that has its own built-in review.
We have included a review of the asylum and detention powers after 15 months, then annually thereafter. Any part of the Bill that amends the Terrorism Act 2000 will therefore be reviewed annually as part of that legislation's requirements where a report on the Act's operation must be laid before Parliament at least once every 12 months. The noble Lord, Lord Carlile of Berriew, has been appointed to undertake those reviews.
We are not convinced of the need for more sunset clauses covering parts of the Bill or the whole measure. However, the speed with which this legislation is being passed must he recognised by the Government.
As I have said before, eight days would probably have been par for the course, plus or minus two days. I accept that the root cause of the problem is the gap between the stages of the Bill. As far as Ministers are concerned, the Bill is bad enough without the Opposition getting at it in terms of keeping track of the process between stages where there is no such gap.
Therefore, having the whole Act reviewed is a matter which we wish to take forward and I hope that it will meet with approval. I would not like to be tied to what I say next, but the words are the best I have at the moment. Between 9.30 a.m. and 12 noon tomorrow, noble Lords on all sides of the House will be able to table amendments for Third Reading, which I now discover is a very useful lifeboat in legislation, although it is not available in the other place.
1204
I am proposing a new clause which will sit somewhere in the latter part of the Bill, probably Part 14. but before Clause 122, as it is now. There will be a statutory review of the Act in addition to all the other "sunset" clauses and reviews which already appear on the face of the Bill. It is a small, new clause. The Secretary of State shall appoint a committee to conduct a review of the Act. He will seek to secure that at any time there will be no fewer than seven members of the committee. It may be more, but seven is the minimum. Every person on that committee will be there only if they are a member of the Privy Council.
The committee will complete a review of the operation of the Act with full access to all the information including that from the security services and so forth. A report will be sent to the Secretary of State not later than two years after the Act is passed. The Secretary of State will be bound on the face of the Act to lay a copy of that report before Parliament as soon as reasonably practical. We shall then say from the Dispatch Box in this House and the other place that we shall guarantee that the business managers will arrange dates and days in both Houses when the report will be debated. It will be detailed.
It will be no use anyone saying, "Will you accept the recommendations?" That cannot be said at this point. If such a report is laid with suggestions for amendments to the Act, if they are not accepted the Ministers concerned will need to have very good reasons for not doing so, bearing in mind that people will have had access to all the relevant information and had a good review of the operation of the Act over the period of two years. It will then be for both Houses to make a judgment on the content of the recommendations.
Subject to any drafting changes, tomorrow we will introduce a new clause to that effect. I hope that will meet your Lordships' desire. We are rushing the legislation and there are no gaps between the stages allowing for mature consideration of the issues raised. However, in the small gaps, such as over the weekend and not sitting on Friday, we have managed to meet some of the issues raised in debate. We hope to have further proposals to meet some of the conclusions reached last Thursday by your Lordships as regards the defeats that the Bill suffered. On some aspects we are seeking a reversal, but we also hope to bring forward what we believe to be a positive modification of some of the key proposals. We have not completed our conclusions; I do not know whether we shall be able to lay amendments tomorrow in this House or later in the other place. We have not completed our discussions and review.
Therefore, I hope that I have said enough to enable noble Lords not to press either of the amendments and to accept our best endeavours to make sure that the Act receives a thorough review and that both Houses have adequate time to debate the conclusions reached by the review in a reasonable period of time.
Viscount Bledisloe: My Lords, I am most grateful to the Minister for that reply. He said that there are offences in the Bill—for example, invading

1205
airfields—which we shall undoubtedly need. The answer to that point was made by the noble Lord, Lord Elton. We shall want some kind of protection of that kind, but it is doubtful whether the clause in the Bill at the moment will be right. That is why the matter needs to be thought through again.
Obviously, it is helpful that there should be a review of the Act of the kind indicated by the noble Lord. He further indicated that there would be a debate in the House about it. But what he did not indicate—and I am sure that he is not in a position to do so—is that the criticisms then made will be brought forward in legislation. The difference between a review and a "sunset" clause is just that. If there is a "sunset" clause it is inevitable that the matter will have to return to the House—unless the noble Lord likes my amendment which he was kind enough to describe as "intelligent" and which enables him to re-enact more simply matters which were not controversial.
No one will be surprised to hear that I still believe that my amendment is better than that advanced by the Front Benches opposite. Quite frankly, the objection made by the noble Lord, Goodhart, that the Minister could just decide who he consults was fanciful. Quite obviously, he would have to consult Justice, the Law Society and so forth. But pride of authorship will not drive me to pressing my amendment because what is vital is that we should continue to insist that we have a "sunset" clause. It can well run with the review, which we are delighted to have. For the moment, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 106:
After Clause 125, insert the following new clause—
"EXPIRY (NO. 2)

(1) This Act, apart from Part 12, shall (subject to subsections (2) to (5)) cease to have effect at the end of the period of one year beginning with the day on which the Act receives Royal Assent.

(2) 1 he Secretary of State may, subject to subsections (3) to (5), by order provide—

(a) that a provision of the Act which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months;

(b) that a provision of this Act shall cease to have effect;

(c) that a provision of this Act which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a specified period not exceeding twelve months.

(3) Parts 1 , 2, 6, 7, 8, 9 and 14 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of five years beginning with the day on which this Act is passed.

(4) Parts 3, 5, 10, 11 and 13 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of two years beginning with the day on which this Act is passed.

(5) Part 4 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of one year beginning with the day on which this Act is passed.

(6) Any order made by the Secretary of State under subsection (2) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

"7.27 p.m.
On Question, Whether the said amendment (No. 106) shall be agreed to?
Their Lordships divided: Contents, 200; Not-Contents, 128.

Division No. 2

CONTENTS

Aberdare, L.

Garel-Jones, L.

Addington, L.

Geddes, L.

Alderdice, L.

Gilmour of Craigmillar, L.

Alton of Liverpool, L.

Goodhart, L.

Anelay of St Johns, B.

Goschen, V.

Arran, E.

Greaves, L.

Ashdown of Norton-sub-Hamdon, L.

Greengross, B.

Greenway, L.

Astor, V.

Hamwee, B.

Astor of Hever, L.

Hanham, B.

Attlee, E.

Harris of High Cross, L.

Avebury, L.

Harris of Richmond, B.

Barker, B.

Higgins, L.

Bell, L.

Hodgson of Astley Abbotts, L.

Biffen, L.

Holme of Cheltenham, L.

Black of Crossharbour, L.

Home, E.

Blaker, L.

Hooson, L.

Blatch, B.

Howe, E.

Bledisloe, V.

Howe of Aberavon, L.

Boardman, L.

Howe of Idlicote, B.

Brabazon of Tara, L.

Hunt of Wirral, L.

Bridgeman, V.

Hylton, L.

Brightman, L.

Inglewood, L.

Brigstocke, B.

Jacobs, L.

Brooke of Sutton Mandeville, L.

Jenkin of Roding, L.

Brookeborough, V.

Jopling, L.

Brougham and Vaux, L.

Kelvedon, L.

Burnham, L.

Kimball, L.

Burns, L.

King of Bridgwater, L.

Buscombe, B.

Kingsland, L.

Byford, B.

Laird, L.

Caithness, E.

Lamont of Lerwick, L.

Carnegy of Lour, B.

Lester of Herne Hill, L.

Carrington, L.

Linklater of Butterstone, B.

Chadlington, L.

Listowel, E.

Chalfont, L.

Liverpool. E.

Clement-Jones, L.

Livsey of Talgarth, L.

Coe, L.

Lucas, L.

Colwyn, L.

Ludford, B.

Cope of Berkeley, L. [Teller]

Luke, L.

Craig of Radley, L.

Lyell.L.

Craigavon, V.

M acGregor of Pulham Market, L.

Cumberlege, B.

Dahrendorf, L.

Mackay of Clashfern, L.

Darcy de Knayth, B.

Maclennan of Rogart, L.

Dean of Harptree, L.

McNally, L.

Deedes, L.

Maddock, B.

Denham, L.

Mancroft, L.

Dholakia, L.

Mar and Kellie. E.

Dixon-Smith, L.

Marlesford, L.

Dundee, E.

Masham of Ilton, B.

Eames, L.

Mayhew of Twysden, L.

Eden of Winton, L.

Methuen, L.

Elles, B.

Miller of Chilthorne Domer, B.

Elliott of Morpeth, L.

Miller of Hendon, B.

Elton, L.

Molyneaux of Killead, L.

Erroll, E.

Monro of Langholm, L.

Falkland, V.

Monson, L.

Fearn, L.

Montrose, D.

Ferrers, E.

Moore of Lower Marsh, L.

Fookes, B.

Mowbray and Stourton, L.

Forsyth of Drumlean, L.

Moynihan, L.

Freeman, L.

Murton of Lindisfarne, L.

Freyberg, L.

Newby, L.

1207

Newton of Braintree, L.

Seccombe, B.

Nicholson of Winterbourne, B.

Selsdon, L.

Noakes, B.

Sharman, L.

Northbrook, L.

Sharp of Guildford, B.

Northesk,E.

Sharpies, B.

Northover, B.

Shutt of Greetland, L.

Norton of Louth, L.

Skelmersdale, L.

Oakeshott of Seagrove Bay, L.

Smith of Clifton, L.

Onslow, E.

Steel of Aikwood, L.

Oppenheim-Barnes, B.

Stern-B

Oxfuird, V.

Stewartby, L.

Palumbo. L.

Stodart of Leaston, L.

Park of Monmouth, B.

Stoddart of Swindon, L.

Pearson of Rannoch L.

Strange, B.

Pael, E.

Strathclyde, L.

Phillips of Sudbury,L.

Taverne,L.

Platt of Writtle, B.

Tebbit, L

Plummer of St. Marylebone, L.

Tenby, V

Rawlings, B.

Thomas of Gresford, L.

Razzall L

Thomas of Gwydir, L.

Reay, L.

Thomas of Swynnerton, L.

Redesdale, L

Thomas of Walliswood, B.

Rees-Mogg, L.

Thomson of Monifieth, L.

Tone L

Renfrew of Kaimsthorn, L.

Trefgarne L.

Rennard, L.

Trumpington, B.

Roberts of Conwy, L.

Tugendhat, L.

Vivian, L

Rodgers of Quarry Bank, L.

Waddington, L.

Rogan, L.

Waldegrave of North Hill, L.

Roper, L. [Teller]

Wallace of Saltaire, L.

Rotherwick, L,

Walmsley, B.

Russell, E.

Watson of Richmond, L.

Saatchi, L.

Weatherill, L.

St John of Fawsley, L.

Wilcox, B.

Saltoun of Abernethy, Ly.

Williams of Crosby, B.

Sandwich, E.

Williamson of Horton, L.

Scott of Needham Market, B.

Wilson of Tillyorn, L.

NOT-CONTENTS

Acton. L.

Dean of Thornton-le-Fylde, B.

Ahmed, L.

Desai, L.

Alli, L.

Dixon, L.

Amos, B.

Donoughue, L.

Andrews, B.

Dormand of Easington, L.

Archer of Sandwell, L.

Dubs, L.

Ashley of Stoke, L.

Elder, L.

Ashton of Upholland, B.

Evans of Temple Guiting, L.

Attenborough, L.

Evans of Watford, L.

Bach, L.

Falconer of Thoroton, L.

Bassam of Brighton, L.

Farrington of Ribbleton, B.

Berkeley, L.

Faulkner of Worcester, L.

Bernstein of Craigweil, L.

Filkin, L.

Billingham, B.

Fyfe of Fairfield, L.

Blackstone, B.

Gale, B.

Boothroyd, B.

Gibson of Market Rasen, B.

Boston of Faversham, L.

Golding, B.

Bragg, L.

Goldsmith, L.

Brennan, L.

Gordon of Strathblane, L.

Brett, L.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Graham of Edmonton, L.

Brookman, L.

Grenfell, L.

Burlison, L.

Grocott, L.

Campbell-Savours, L.

Hardy of Wath, L.

Carter, L. [Teller]

Harris of Haringey, L.

Chandos, V.

Harrison, L.

Christopher, L.

Haskel, L.

Clark of Windermere, L.

Hayman, B.

Clinton-Davis, L.

Hogg of Cumbernauld, L.

Cohen of Pimlico, B.

Hollis of Heigham, B.

Corbett of Castle Vale, L.

Howells of St. Davids, B.

Crawley, B.

Hoyle, L.

Currie of Marylebone, L.

Hughes of Woodside, L.

David, B.

Hunt of Chesterton, L.

Davies of Oldham, L.

Hunt of Kings Heath, L.

1208

Irvine of Lairg, L. (Lord Chancellor)

Patel of Blackburn, L.

Pendry, L.

Janner of Braunstone, L.

Peston, L.

Jay of Paddington, B.

Pitkeathley, B.

Jeger, B.

Plant of Highfield, L.

Jones, L.

Puttnam. L.

Judd, L.

Radice, L.

Kilclooney, L.

Ramsay of Cartvale, B.

King of West Bromwich, L.

Randall of St. Budeaux, L.

Layard, L.

Rendell of Babergh, B.

Lea of Crondall, L.

Richard, L.

Lipsey,.L.

Rooker, L.

Lockwood, B.

Sawyer, L.

Lofthouse of Pontefract, L.

Scotland of Asthal, B.

Macdonald of Tradeston, L.

Simon, V.

Mclntosh of Haringey, L. [Teller]

Stone of Blackheath, L.

Symons of Vernham Dean, B.

McIntosh of Hudnall, B.

Taylor of Blackburn, L.

MacKenzie of Culkein, L.

Temple-Morris, L.

Thornton, B.

Mackenzie of Framwellgate, L.

Tomlinson, L.

Mallalieu, B

Turner of Camden, B.

Massey of Darwen, B.

Varley, L

Milner of Leeds, L.

Walker of Doncaster, L

Mitchell, L.

Warner, L.

Morgan of Huyton, B.

Warwick of Undercliffe, B.

Morris of Aberavon, L.

Wedderburn of Charlton, L.

Morris of Manchester, L.

Whitty, L.

Nicol, B.

Williams of Mostyn, L. (Lord Privy Seal)

O'Neill of Bengarve, B.

Oxford, Bp.

Woolmer of Leeds, L.

[* The Tellers for the Contents reported 200 names. The Clerks recorded 201 names.]
Resolved in the affirmative, and amendment agreed to accordingly.
Lord Carter: My Lords, now that we have completed our consideration of the Bill on Report, the debate on the Unstarred Question can be extended to one-and-a-half hours. Save for the noble Lord, Lord Renton, opening and my noble and learned friend Lord Williams replying—whose time allowance remains as set out—the Back-Benchers now have 11 minutes each, except for the noble and learned Lord, Lord Howe of Aberavon, who is speaking in the gap and who therefore gets four minutes.

Acts of Parliament: Drafting
7.38 p.m.
Lord Renton Lord Renton rose to ask Her Majesty's Government what steps they will take to make the wording of Acts of Parliament easier to understand and more certain in their legal effect.
The noble Lord said: My Lords, I rise to ask this Question with even greater pleasure after what the noble Lord the Chief Whip has said.
It is often said that this proposal is a contradiction and that making statutes easier for lay people to understand may destroy their legal effect. But in spite of that risk, I suggest that it is in the public interest that the Government and Parliament should try to improve legislation to make it easier to understand and less ambiguous and to make it more certain in its legal effect.

1209
As long ago as 1547, the teenage King Edward VI pleaded for that to be done, and efforts have often been made since then. However, in the past 30 years the tendency has been to avoid enacting statements of purpose and of principle but to attempt to cover in detail the many hypothetical circumstances which might arise and do not always arise. That system often fails to anticipate some of the circumstances which do arise. The result has added to the problems of interpretation and led to a huge increase in the work of the courts, especially of the Court of Appeal and of the Law Lords in your Lordships' House. I therefore urge the Government to increase greatly the use of statements of purpose and of principle.
Although detailed provisions are sometimes necessary to define people's rights and duties, especially in fiscal legislation but also in some other legislation as well, they should, even when necessary, be preceded by statements of purpose. No harm would be done, and often clarification would be added. Indeed, such statements will always enable detailed provision to be better understood, not only by enabling the drafting of obscurities to be overcome but also by filling in gaps which are left by attempting to legislate simply to cover in detail hypothetical circumstances.
Since 1870 there has been only one official committee to advise government and Parliament on the drafting of Acts of Parliament. That committee sat from 1973 until 1975 and was the Committee on Preparation of Legislation. I was its chairman and the noble Lord, Lord Richard, who is not in the Chamber at present, was a valuable member. We had an experienced and strong committee, including several leading parliamentary draftsmen who had reached the top in Whitehall or in Edinburgh.
The senior judges who gave evidence before us, including the late Lord Denning and, I believe, the noble Lord, Lord Wigoder, the then Lord Chief Justice, all recommended that the intentions of Parliament should be made clear by statements of principle.
It is a great advantage that the noble and learned Lord, Lord Brightman, will speak in this fairly short debate. He has made a full and brilliant survey of drafting in recent years. It is very long and very detailed, and at its last conference last summer the Statute Law Society benefited from the address which the noble and learned Lord gave. Now that he can speak for longer than six minutes, I hope that he will not feel restrained in the length of speech that he makes, more especially as I shall not speak for the whole of my 10 minutes. And the noble and learned Lord, Lord Williams of Mostyn, who I am very glad is to reply to this debate, may even find that he has a little more than 12 minutes left. I hope so.
Perhaps I may say to the noble and learned Lord, Lord Williams of Mostyn, that I implore him not to be defensive in the reply that he gives to the debate but to be progressive in this matter, for it is one which affects all the people of the United Kingdom.
7.45 p.m.
Lord Hooson: My Lords, I have known the noble Lord, Lord Renton, for many, many years. In the other place and in your Lordships' House he has been a ceaseless campaigner on the very important subject of making our laws more apparent, readable and relevant to all those who are affected by them; that is, our citizens.
I am also delighted to know that the noble and learned Lord, Lord Brightman, is taking part in the debate. He has an unrivalled knowledge of the steps taken over the past 125 years to improve the drafting and presentation of legislation. His lecture to the Statute Law Society on 19th June this year on "Drafting Quagmires" is a rich source of information and suggestions. I have read it several times and I refreshed my recollection of it a couple of days ago.
I took part in the consideration of the wording of one of the Acts which the noble and learned Lord quoted in that lecture, to which I shall refer. Clause 1 of the National Health Service (Private Finance) Bill was debated in your Lordships' House on 17th June 1997. I shall cite that clause as it was first worded:
"Nothing in this section affects the validity of any agreement made by a National Health Service trust if the agreement has not been certified under this section. but would have been an externally financed development agreement for the purposes of this section if it had been so certified".
Can anyone explain that? One tries to imagine how a doctor, an administrator or even a lawyer, if consulted on that clause, would have interpreted it. Mercifully when people asked what it meant, it transpired that the Explanatory Notes to the Bill spelt it out in plain English. The explanation read:
"The validity of an agreement which meets the conditions set out in subsection (3) cannot be challenged merely because it has not been issued with a certificate under this section".
After a great deal of pressure was brought to bear on the Government, who at first rejected the suggestion, the wording of the explanatory note was moved as an amendment to take the place of the original drafting. and it was accepted. That is illustrative of one aspect of the need to have our legislation much more clearly defined. The wording of Explanatory Notes can be used in place of archaic and contorted wording that is often unnecessarily obscure. So much of our modern legislation is affected in that way.
I pose a question to noble Lords here: when one looks at a Bill presented in this House, how often does one look at the Explanatory Notes first rather than the clause? The Explanatory Notes are normally written in clear English. I believe that for years campaigning has continued for the use of plain, direct, modern English and for the avoidance of archaic and outdated methods of reference. I am sure that the noble and learned Lord who is to follow me will expand on that subject.
The noble Lord, Lord Peyton, who I am sorry is not in his place, in his own inimitable way when a member of the other House spoke on this subject on 3rd November 1975. He said that to describe our modern statute law as often unhelpful to the reader was one of the most charming pieces of

1211
understatement that he had ever come across. Those words are equally true today. It is time that the Government took an initiative and did something effective and drastic.
I had tabled an Unstarred Question in case that tabled by the noble Lord, Lord Renton, was not selected for debate. In that Question I suggested that there might be a joint committee of both Houses—it would be helpful if that was chaired by a Law Lord or a former Law Lord—to consider the question of whether there should now be guidelines for those who draft our legislation and those who present it. The noble and learned Lord, Lord Williams of Mostyn, has many achievements behind him and no doubt many ahead of him. However, it would be one of his greatest achievements to ensure that in the future, not only are there debates of this kind in the other place and in your Lordships' House but that action is taken on them to ensure that we have statutes and legislation that can be easily interpreted by the ordinary citizens of this country.
7.51 p.m.
Earl Attlee: My Lords, I am grateful to my noble friend Lord Renton for asking his Unstarred Question. He raises an important point, as most legislation is undoubtedly difficult to understand. Sometimes one cannot help thinking that parliamentary draftsmen are a law unto themselves. I know not how they would react to the suggestion made by the noble Lord, Lord Hooson, of guidelines.
My background is one of industry and not of public affairs, Parliament or law. Some time in the past I had occasion to look up road transport law. I went to the appropriate Act and then to what I now know to be secondary legislation. It was all pretty incomprehensible. My understanding now, nearly 10 years later, is a little better. I now understand what the terms, "The Secretary of State" and "person" mean in legislation.
No doubt the noble and learned Lord the Leader of the House will point out that there are some very good reference books. But sometimes even they are wrong, especially on matters of detail. I shall be surprised if the noble and learned Lord, Lord Brightman, does not tonight extol the virtues of the Keeling schedules. I shall not steal his thunder, other than to strongly support his view.
On a related issue I find it hard to understand why it is not possible to consolidate much-amended Acts on a regular basis. If that is thought to be too difficult, surely it means that the current drafting of the original Act, as amended, is not certain. I may be missing something, but I cannot understand why it is not possible to consolidate any Act or statutory instrument with a pair of scissors and glue. Perhaps the noble and learned Lord will explain what I am missing; I suspect that I am missing something. If that is too difficult for me to undertake, surely it is an argument in support of the Keeling schedule.
My noble friend's Unstarred Question relates to Acts of Parliament, but similar issues arise with regard to statutory instruments. Some SIs, for instance, the
1212
Motor Vehicles (Construction and Use) Regulations, have been amended many times, but for good reasons. If a copy of the regulations is ordered from the Stationery Office, the original version will be supplied. It is possible to order amended SIs if their reference is known, but amending the original would be a massive undertaking. Can the noble and learned Lord tell the House why such important and regularly amended SIs cannot be completely remade at least annually in their fully amended state? Furthermore, it would be helpful if the noble and learned Lord could explain how from time to time Northern Ireland construction and use regulations are able to be issued fully amended when they read directly from the regulations for England and Wales?
I hope that I shall not be testing your Lordships' patience by raising yet another issue, more applicable to statutory instruments than to primary legislation. Multi-million pound orders are placed on the basis of engineering drawings, which are made according to international standards. Engineering drawings have to be unambiguous. Any mistakes in that regard can be extremely expensive unless detected early on in the tender process. My understanding is that drawings and illustrations are only used in SIs when unavoidable. When I read technical SIs, they are difficult to understand, even though I am a hands-on technical person. However, a drawing or illustration can he quite clear about what is meant. After all, a picture paints a thousand words. Does the noble and learned Lord agree that drawings and illustrations should be encouraged in SIs, and if not, why not?
7.56 p.m.
Lord Phillips of Sudbury: My Lords, like all other noble Lords, I thank the noble Lord, Lord Renton. As a relative newcomer it is an example to us all to see a man of his not-so-tender years provide the subject for debate as he has tonight and to be able to look back over a vast life in public service so that. he can even tell us that he was chairman of the last committee properly to review the subject. It is rather strange that one of the few committee reports I received in the early 1970s was from his committee, and it was very important.
Lawyers have always been unpopular, and are unpopular for the reason behind the Unstarred Question.
"Let's kill all the lawyers"
was a cry put into the mouths of the peasants in Shakespeare's Richard—
Lord Goodhart: It was Henry VI.
Lord Phillips of Sudbury: My Lords, my noble friend Lord Goodhart corrects me; it was Henry VI. In the Putney debates 1947 the point was made strikingly and forcefully that the laws then were completely beyond comprehension, needed to be written in plain English and were generally unsympathetic to the yeomen and public of England. More in his Utopia envisaged a world without lawyers. I was told today by a Russian

1213
that the first decree that Lenin signed into force in 1917 was one abolishing lawyers. He had to bring them back in 1922, but at least he tried.
The problem of a lack of public understanding of what we do, and certainly a lack of understanding of not only the content of the laws we pass but their number and range, is a pressing problem. It is so difficult to contend with that I sometimes think that we avert our eyes from it. No government ever contemplate the notion of legislating less law. The pressure is always for more law. We then have our own tradition of law-making which, compared with other parts of the world, is specific, concrete and stated. I suppose one could look to some of the continental jurisdictions, which are much more content to deal in generalisations. Each style has its own virtues and defects, although I think that one is driven into the arms of the lawyer either way. Our present law-making has become so complicated—there is so much existing law to have to work it in withthat the complexity of our present law defeats the layman in all but very few cases. There are very few Sale of Goods Acts or Partnership Acts around these days, so that the layman is driven into the lawyer just as certainly he is with the continental style in which, although the generalisation may be understandable, the application really is not.
In making that point I shall comment on the Human Rights Act in two ways. First, it was perhaps of a more continental style but that is not surprising, given its origins. Secondly, I commend the parliamentary draftsmen. The Act was a consummate piece of skilled work on their part. Nothing I say tonight is aimed at the hard-pressed group of parliamentary draftspeople who, by and large, do a sterling task.
However, I want to suggest that we need to stop the rot in our legislation. The amount of new law is fast growing. One only needs to go to the Library of the House to see, simply in terms of shelf space, the feet occupied by primary, secondary and of course European—directives and regulations—legislation. It increases year by year inexorably. The interlocking of existing with new legislation often gives rise to the most arcane difficulties. It is multi-dimensional. In many spheres trying to understand what the law provides is almost like playing 3-D chess. Finally, most of it is additional. One rarely finds that the amount of law jettisoned by a new piece of legislation is anywhere near the length of the new.
The effect of that is to lead to greater specialisation within the legal profession. That adds another vicious impulse to the whole process. One now gets—it is not a conspiracy—highly specialised groups of lawyers whose commercial advantage is in the specialisation and complexity of which they are masters. They are the drivers of further legislative change. They are the only people who understand the existing law, so when any new legislation is contemplated, they are the only people who contribute to the preparation of it, let alone the passage of the legislation concerned.
1214
Therefore, the whole process is becoming incestuous, introverted and largely self-serving. That is highly dangerous. One gets spin-off effects. For example, large companies are the only happy dealers with the new complex world of law because they are the only people who can afford the legal department which can master the regulation that surrounds them. That becomes a problem and a disadvantage for the small and medium-sized companies.
Everything is added to and accelerated by the breakdown in our community and national society life, which in turn creates a greater need for regulation. Regulation has not only the problem that it is complicated, but that if it is not complied with or evenly enforced it becomes counterproductive. The vast majority of the public feel that it is an imposition. In turn that begets further regulation to shore up the ineffective edifice of existing regulation. One then gets into an Italianate situation which fast leads to a break down of public confidence in the law and low level, and not so low level, corruption.
What can we do with Parliament? We could do much more to help legislators in both Houses. For example, today we were given a conformed version of the new legislation on the Anti-terrorism, Crime and Security Bill, which simply melded the amendments into the existing law so that it can be read sequentially. A great deal more of that could be done.
There was the Bill dealing with the Nice Treaty that we were trying to deal with recently. What an appalling task it was to try to fit the bits together. That could have been done for us, including showing the omissions as well as the additions. It is no good unless you show both. That is regularly done between solicitors when they are drafting and redrafting documents.
The Explanatory Notes—a great new development, for which we give thanks I am sure—could be improved in two respects: first, there could he additional explanation of difficult parts of new legislation. Again, the anti-terrorism Bill provides many examples of that. It has extremely difficult passages. I refer to Clauses 17, 103 and 104, with which I am particularly involved. I am sure that a great deal more of the work that is done for Ministers could be made available to us. That would help to draw more Peers into the debate. Even in my three and-a-half years, I have noticed a decline in the activists behind debates. Again and again one talks to colleagues who say, "Well, I just can't get my head around it". Everything should be done to make Bills as accessible to as many as possible.
Examples are hugely important. We had the debate last Thursday in relation to Clause 17 where the noble Lord, Lord Rooker, gave three examples of the workings of some of the amendments. It would have been hugely helpful had examples of all the main clauses been given right at the beginning, so that everyone could get their heads around things.
Further, there is help to the public. Explanatory Notes of legislation that affects the public should be available to them. There should be brochures in

1215
popular form and in plain English. Where legislation deals with changes in sovereignty arrangements, I believe that, as I tried to persuade the House in relation to the Bill dealing with the Nice Treaty, we should send a tabloid to every household in the country which explains and illustrates in a vivid way what will happen to their sovereignty. We need to reach out to the citizens.
In conclusion, we need to cut back on law making. It is an essential prerequisite of everything else that we talk about tonight. We need to review the continental approach and perhaps set up a committee to deal with it. We need to keep lay justices firmly in their saddles because they are the only breakwater to the welling complication of criminal law. We need to take citizenship seriously. That subject is coming on to the school curriculum at the end of next year. That will open up a huge opportunity. We need post-legislative audits and impact assessments to chuck out legislation which does not do what its proponents said it would.
Finally, I suggest a displacement rule: first, that anyone corning to the House with new legislation should say what the cost is not just to the Exchequer but to the public; and, secondly, if at all possible, we should have suggestions as to displacement of existing laws that help reduce the flow in complexity.
8.6 p.m.
Lord Brightman: My Lords, I also thank the noble Lord, Lord Renton, for raising the question of what steps could be taken to make legislation easier to understand and more certain in effect.
If I have time, I should like to add to the proposals already made six steps that might be considered. The order in which I mention them is not intended to signify any particular order of priority.
I mention, first, the avoidance so far as possible and so far as appropriate of legislation by reference, as it is usually called. I mean, of course, the patchwork amendment of a section or subsection by adding words here and removing words there, instead of repealing the whole section or subsection and enacting it in its finally amended form.
A neat example of unacceptable patchwork amending came before this House recently in the form of amendments to Section 1 of the Sexual Offences Act 1967. The section had already been amended by Acts passed in 1982 and 1994. The Sexual Offences (Amendment) Bill was designed to introduce further amendments. Instead of repealing Section 1 of the 1967 Act, which was divided into six subsections, and inserting a new section in its amended form, the reader was left with the following formidable task. Line 2 of subsection (1) was amended by Schedule 11 to the 1994 Act. The rest of subsection (1) was amended by Section 145 of the 1994 Act and Clause 2(3) of the Bill. Lines 1, 2 and 8 of subsection (3) were amended by paragraph 34(a) of Schedule 1 to the 1982 Act. A new subsection (3A) was inserted by paragraph 34(b) of Schedule 3 to the 1982 Act. Subsection (5) was repealed by Section 146 of the 1994 Act. Subsection (6) was inserted by Section 145 of the 1994 Act and amended by Clause 1(2) of the Bill.
1216
Can anyone doubt that it would have been far more helpful to have repealed the already amended Section 1 of the 1967 Act and substituted a new Section 1 incorporating the existing and the proposed new amendments? That story can be read in Hansard of 11th April 2000 at col. 154 and of 13th November 2000 at col. 117.
A second step that might be conside red is the greater use of Keeling schedules. As your Lordships know, that device allows the draftsman to insert in the text of an Act the patchwork amendments that the Government want and to insert in a schedule the relevant section in its finally amended form.
In a complicated case, a Keeling schedule cart be enormously helpful. There is even a precedent for using it to rewrite an entire part of an Act. That was done by Schedule 5 to the Housing Act 1996, when an entire part of the Landlord and Tenant Act 1987 was reprinted in its amended form in a five-page Keeling schedule.
A third step that might be considered is a greater use of consolidation Acts. The output of such Acts has suffered a severe reverse in recent years. In the four Sessions of Parliament between 1981 and 1985, no fewer than 37 consolidation Acts were passed. In the last four Sessions there have been only four such Acts. Is that due to a lack of staff, of funds, of initiative or of parliamentary time? I doubt whether it is the latter, because there is a fast-track procedure whereby consolidation Bills pass through both Houses on the nod, after being vetted by a Joint Committee of both Houses.
A fourth step that might be considered is the more frequent inclusion in Acts of an index of defined expressions. Your Lordships will have noticed such an index, admirably laid out, in the Commonhold and Leasehold Reform Bill which has just left this House. Section 68 of that Bill is divided into two columns: column 1 lists all the defined expressions used in Part 1; column 2 states the section in which the definition is to be found. That has two advantages. In the first place, the reader can instantly discover whether, for example, a word in common use—the word "document", let us say—is used in its dictionary sense or has a statutory meaning. Secondly, in the latter case, the reader can instantly find out where that meaning is to be found.
A fifth step might be to consider the introduction of drafting guidelines, which have existed in the Community since 1998. Apart from the more obvious directions, such as,
"Overly long articles and sentences, unnecessarily convoluted wording and excessive use of abbreviations should be avoided",
there is also the guideline:
"Preference shall be given to replacing whole provisions … rather than inserting or deleting individual sentences, phrases or words".
My sixth and last suggestion is that the status of the Office of Parliamentary Counsel should be reconsidered. As your Lordships will know, that office is responsible only to the Prime Minister. As I understand it, that means that only the Prime Minister

1217
can give directions to the Office of Parliamentary Counsel on drafting policy. If that is right, the Office of Parliamentary Counsel is in practice—I intend no offence by this—a law unto itself. These days, no Prime Minister could possibly direct his attention to the drafting of Bills.
I must be right, because any of your Lordships who have researched the origins of the Keeling schedule will have noticed that the instruction given to the Office of Parliamentary Counsel to try out that device was given on 26th July 1938 by no less a Minister than Mr. Neville Chamberlain, the Prime Minister.
In the few minutes that I have left, perhaps I could go back to add a little flesh to one or two points. I spoke about the inclusion in an Act of an index of defined expressions. In some quarters there seems to be a strange reluctance to help the reader of an Act of Parliament in that way. In the 1997–98 Session, the Government of Wales Act 1998, the Scotland Act 1998, the School Standards and Framework Act 1998 and the Data Protection Act 1998 were all passed. Each was a long Act. Each Act made use of from 42 to 67 defined expressions. Each Act had a most useful index of defined expressions.
The Competition Act 1998 of the same Session contained 59 defined expressions but no index. I tabled an amendment to add such an index. The Government rejected the amendment. The only reason given for the rejection was that,
"it would not be appropriate".—[Official Report, 5/3/98; col. 1370.]
I probed the matter further by means of a Question for Written Answer. It came back that an index would be,
"unhelpful for users".—[Official Report, 20/7/98; col. W A82.]
How on earth could the inclusion of such an index be helpful in the case of four Acts of Parliament of comparable length, with a comparable number of defined expressions, but unhelpful in the case of the Competition Act 1998? The inclusion of such an index would, I calculated, have cost just one page of print.
The problem of legislation by reference—if I may turn to that for a moment—has a long history. Cabinet papers held at the Public Record Office under the reference PREM 1/284 show that the problem dates back to at least 1875, when a Select Committee of the other place was set up to suggest improvements in the method of legislation. The committee reported that,
"The practice"—
of legislation by reference—
"seems to be increasing, and when carried out to excess makes the statute so ambiguous, so obscure and so difficult of comprehension that the judges themselves can hardly assign a meaning to it".
That was in 1875. In a tax case in 1928, Mr Justice Rowlatt echoed that complaint. He said that five pages of piecemeal amendments to an existing section of a Finance Act rendered that section,
"perfectly unintelligible to any layman or any lawyer who has not made a prolonged study with all his law books at his elbow".
1218
The all-time high of the problem arose in this Session from the Social Security Fraud Act 2001. Having regard to the time, perhaps I could just give the reference. If anyone is interested in reading the story, it is in Hansard of 8th March 2001 at column 338.
I am afraid that I have spilled over my time, but, finally, the Question raised by the noble Lord, Lord Renton, put me in mind of an observation made by the noble Lord, Lord Cope of Berkeley, when moving an amendment to the Vehicles (Crime) Bill. He said:
"A few years ago. Sir Ernest Gowers wrote a book entitled Plain Words. It was required reading for all people on joining the Civil Service".—[Official Report, 6/3/01; col. 136.]
I inquired of the Library whether I could borrow that book. The Library could not trace it. I do not know whether the noble and learned Lord the Lord Privy Seal may be able to institute a search for that book.
8.20 p.m.
Lord Howe of Aberavon: My Lords, I begin by apologising for my incompetence in not being on the List of Speakers for this debate. However, I invite the Leader of the House, with his reputation for radical progressivism, to endorse a change in procedure. I have asked my noble friend Lord Attlee if I might borrow the seven minutes that he did not use, and he was entirely happy with that. Perhaps that will commend itself to the Leader of the House; we shall see.
One aspect of the tragedy of this debate is the quality of the speeches made by my noble friend Lord Renton and by the noble and learned Lord, Lord Brightman. Both of them have been campaigning on this cause for as long as the memory of man runneth, with immense assiduity and immense concentration. If I may, with due modesty, I claim a small role in the paternity of the Renton committee. In 1970–72, I was Solicitor-General and had the task of overseeing the drafting of the Industrial Relations Act 1971, the European Communities Act 1972, the Consumer Protection Act 1971, the Fair Trading Act 1973, the Insurance Companies (Amendment) Act 1973 and companies legislation. Consequently, I was able rightly to persuade the then Prime Minister, as no one else could do it, to establish the Renton committee.
The tragedy is that both the noble and learned Lord, Lord Brightman, and my noble friend Lord Renton are monuments—I mean this with the greatest respect—to our collective failure to achieve almost anything. This is the third debate of its kind, specifically on this subject, in which I have participated since I became a Member of this House. The debates follow the same pattern, with plenty of examples to be presented, plenty of jokes to be made and plenty of grievances to be aired. However, does anything actually happen? That is the problem. It is not a problem of diagnosis; it is a problem of prescription and procedure. That is why I want the Leader of the House to respond to my second challenge, and be as radical and progressive in that respect as he is renowned for being in the Welsh valleys, where his reputation for radicalism, like that

1219
of the noble Lord, Lord Hooson, is second to none. That is quite radical enough. There is a challenge for the Leader of the House.
It is possible to design machinery to improve the situation. Without any sense of vanity, I point to the proceedings taking place in the tax law re-write project—in which we are not merely consolidating, but taking apart, putting together, re-indexing and, without changing the law, rewriting in plain English our primary tax legislation. It is a task that can be achieved by setting up a procedure to do it, and also by taking other action. The task is enormously difficult, but one must first clarify what the project is about, spot omissions and re-order it.
Forty people in the Revenue and Parliamentary Counsel Office are working on the tax law re-write project, addressing themselves to 9,000 pages of primary tax legislation. Our total output thus far, after four years, is 333 pages and the Capital Allowances Act 2001, which was passed last March. The task is hugely difficult and hugely time-consuming. However, in the 2001 Act we are making use of tables and sign-posts, giving examples and illustrations, and doing all the things that noble Lords said should happen. We can do that only by "virginalising" the land on which we are working, sweeping away the extraordinary jungle of antique statutes and replacing them with immense care by a new structure. That is the scale of that task to which we have to give still more resources and time. One always comes back to the balance between a hugely excessive volume of legislation and a hugely inadequate application of resources in money and mankind.
We are rewriting 9,000 pages of tax law but have produced 333 pages. Meanwhile, down at the other end of this building, the Chancellor of the Exchequer, urged on by people on all sides, is annually introducing 600 pages of new legislation. As I have said, it is as though we have been contracted to repaint Brighton pier while the Chancellor and his gang are busy trying to extend it to reach the French coast. That is the scale of the tragedy.
Less legislation entails a hugely determined effort by Prime Ministers and colleagues to identify what need not happen. We need not have had the overseas development legislation, and we probably do not need the export control legislation. We certainly do not need legislation on that scale. That is one issue that has to be tackled. The other issue is the need to have far more resources than have ever been devoted to tackling the first issue. The current constraint on the tax law re-write project is imposed not by the Revenue but by a shortage of draftsmen, despite the yeoman efforts that the Parliamentary Counsel Office has made to try to make people of real talent available to us.
That is where the Leader of the House comes into the act. He is now the channel, the funnel and the lightning conductor for all these untreated grievances to be addressed. I know that he knows that it will not be sufficient for him to go along to the Prime Minister and say, "It's time that we did something about this,
1220
Tony." Although we are talking about very small sums, he will have to mobilise a mammoth effort to build up over years a much larger crew in the Parliamentary Counsel Office. It will cost only a few millions more. When I was making my first Budget, the margin of error in the public sector borrowing requirement was a quarter of a billion pounds. So, within that type of framework, the Leader of the House would be able to find enough to make a dozen PCOs.
Ministerial responsibility has to be focused somewhere more effective than at No. 10 Downing Street, although I know not whether it is in the Lord Chancellor's Department or the Law Officers' Department. The point, however, is crucial. All the other efforts, as magnificent and effective as they are, are of no avail in the absence of, for the first time, a truly radical determination to build up a new structure to handle this material.
8.26 p.m.
Lord Goodhart: My Lords, I am very pleased to speak in this debate. I am most grateful to the noble Lord, Lord Renton, for having introduced it. I am also very grateful to the noble and learned Lord, Lord Brightman, for his speech. Undoubtedly they are the two masters of statutory draftsmanship in your Lordships' House. Both have very long experience of it, and both have developed immense wisdom in handling the difficulties of statutory interpretation and statutory draftsmanship.
I am also very glad to follow the noble and learned Lord, Lord Howe of Aberavon. I have had the privilege, with the noble and learned Lord, Lord Brightman, of serving as a member of what is now the Joint Select Committee on tax simplification, of which he is the chairman, which oversaw the re-write project of the Capital Allowances Act 2001. That committee shows what can be done. It is a first step towards making tax legislation simpler and easier to understand. It has also made an effective and useful start. However, as the noble and learned Lord, Lord Howe, said, after four years the committee has managed to deal only with the Capital Allowances Act and has in front of it a great sea of other tax legislation. That demonstrates the difficulty of the matter.
There is no doubt that the situation has grown significantly worse in recent years. Not only tax legislation, but all legislation tends increasingly to be longer, more complex and harder to understand. However, there was a golden age of parliamentary draftsmanship, which I would say ran from about the 1880s to the 1920s. Some of those Acts—several of which are still on the statute book, such as the Partnership Act 1890 and the Sale of Goods Act 1896—were clear, simple, easily understood even by non-lawyers and remained for decades the basic framework on which the law was built. The nature of some of that legislation may be due in part to the fact that Lord Salisbury was the Prime Minister when it was passed in the 1880s and 1890s. As he did not believe in changing the law, the parliamentary draftsmen may have had plenty of time on their hands

1221
which they were able to spend fruitfully in producing some extremely skilful legislation. Going forward in time, we have the masterpiece of the Birkenhead property laws of 1925. Since then, I am afraid that it has been downhill. As has been pointed out, there are all the faults of modern legislation.
There is possibly an even worse problem in that the statutes are not only difficult to understand; they become increasingly difficult to find. So much is amended and one has to trace through not only the original Act but all the subsequent Acts which have amended it. Increasingly, amendments to primary legislation are not only in other primary legislation but now in statutory instruments; the Henry VIII clauses.
I was looking, for example, at the Anti-terrorism, Crime and Security Bill, which we discussed earlier today. That makes significant amendments to the Terrorism Act 2000; the Immigration and Asylum Act 1999; the Public Order Act 1986; the Crime and Disorder Act 1998; the Biological Weapons Act 1974; the Chemical Weapons Act 1996; the Police and Criminal Evidence Act 1984; the Aviation Security Act 1982; the Criminal Justice and Public Order Act 1994; the Ministry of Defence Police Act 1987; the Prevention of Corruption Act 1906; and the Intelligence Services Act 1994. I probably missed three or four along the way and a number of other Acts are amended in minor ways. We are therefore presented with an extreme difficulty in finding out what the legislation is.
The noble and learned Lord, Lord Brightman, pressed for the Keeling schedules. I know that the matter is very dear to his heart. However, it would have been difficult in the anti-terrorism Bill to publish Keeling schedules applying to all the different previous Acts. I am grateful to a distinguished judge from New South Wales, Mr Justice Handley, for drawing my attention to the practice in Australia. He is currently present in this country as the Inns of Court visiting fellow.
Under the Amendments Incorporation Act 1905, which was subsequently amended, it is provided that:
"When any Act has, before or after the commencement of this Act been amended by—

(a) the repeal or omission of certain words or figures, or

(b) the substitution of certain words or figures in lieu of any repealed or omitted words or figures, or

(c) the insertion or addition of certain words or figures,

then in any reprint of the Act by the Government Printer the Act shall be printed as so amended".
Something of that kind seems a valuable step forward. I hope that the noble and learned Lord the Leader of the House will be prepared to ask the parliamentary draftsman to consider whether it is possible.
It is extraordinarily difficult to discover what the law is on any given subject at any given time. At present, the Queen's Printer's copies of statutes are never printed in an updated form. It is true that commercial organisations provide updated versions, but surely the Government should do it, too.
1222
It goes somewhat beyond that, because increasingly we use the Internet for the purpose. Government statutes are printed on the Government's website but only in the original form of the statute. So if it is more than about six weeks' old, it is probably out of date. Surely, it should not be beyond the wit of whoever is responsible for government information technology to have a parliamentary website which can provide the text of legislation not only as it was originally enacted but as it is now—and, furthermore, on any date in between. Quite often, a lawyer needs to know not what the law was when it was originally enacted; not what the law is on 10th December 2001; but what it was on 10th December 1995. That is the date of the transaction which is the subject of litigation.
I believe that information technology provides a real opportunity for the Government to update the system of providing information which will enable members of the public, or lawyers, to find out quickly, easily and cheaply what statute law is at any given time. Indeed, I would extend that principle not only to statute law but, as the noble Earl, Lord Attlee, mentioned, to the main statutory instruments.
I am most grateful for the introduction of the debate. As has been said, the situation occurs regularly but nothing seems to be done. I hope that at last the Government will be able, particularly by taking advantage of modern technology, to ensure that legislation is easily available, even if it remains difficult to understand. I hope that we shall receive some helpful answers.
8.36 p.m.
Lord Kingsland: My Lords, I should like to begin my brief contribution by congratulating my noble friend Lord Renton on persisting in his tireless quest to render the wording of Acts of Parliament both easier to understand and more certain in their legal effect. My noble friend's commitment to these changes is longstanding.
In 1975, while still in another place, as your Lordships are well aware, my noble friend chaired the Committee on the Preparation of Legislation. It was the first thorough investigation into the matter since 1875. Above all, the committee's report recommended in paragraph 11.8 that statements of purpose should be used when,
"they are the most convenient method of delimiting or otherwise clarifying the scope and effect of legislation".
That recommendation was, I might add, unanimous. After all, as the noble and learned Lord, Lord Brightman, said in the course of a previous debate in your Lordships' House on the subject:
"It is axiomatic that every Bill has a purpose".—[Official Report, 21/1/98; col. 1589.]
It would be unfair to suggest that no improvements have taken place since my noble friend's report. There has been one of some significance. Explanatory Notes aimed at making legislation more accessible have been published, together with each Bill, from the start of the 1998–99 Session. They represent, undoubtedly, a substantial improvement.

1223
Nevertheless, it is fair to say that my noble friend's principal objective has not found favour with successive governments. That is probably why, in 1992, the Judicial Committee of your Lordships' House felt compelled to reach its decision in the great case of Pepper v Hart. There, as I am sure your Lordships are aware, noble and learned Lords relaxed the rule that hitherto prohibited the use of Hansard debates and other material as an aid to the judicial construction of statutes.
The judgment was intended to serve precisely the same objective as a statutory purpose clause. It is interesting to note that my noble friend's committee, deliberating between the years 1973 and 1975, was wholly opposed to the approach that the Judicial Committee felt ultimately compelled to adopt. Had my noble friend's committee met with success, it is likely that the judgment in Pepper v Hart would not have been necessary.
Meanwhile, the noble and learned Lord, Lord Brightman, has made a remarkable contribution to the debate so assiduously initiated and fostered by my noble friend Lord Renton. In his superb lecture, "Drafting Quagmires", delivered to the Statute Law Society on 19th June 2001, the noble and learned Lord illustrates the follies of legislation by reference, of semantic quagmires and of the absence of indices of defined expressions and suggests some enticingly painless remedies.
Your Lordships will be relieved to know that I have no intention of rehearsing the many perspicacious and apposite observations made by the noble and learned Lord in concocting his remedies. They are there for all noble Lords to read. Suffice it to say that I, together with my noble and learned friend Lord Fraser of Carmyllie, had the honour to represent the Opposition during the passage through your Lordships' House of the Competition Bill 1998. I recall the doughty battle fought by the noble and learned Lord, Lord Brightman, over the need for an index of defined expressions. How much easier indeed it would be to have such an index when manoeuvring over the especially inhospitable terrain that characterises that Act.
However, as the noble and learned Lord told us in his lecture and has told your Lordships today, the Government asserted in answer to his Written Question that such an initiative would be "unhelpful to users". I hope that the recent acceptance and adoption of a similar index in the Commonhold and Leasehold Reform Bill is a clear sign of a change of heart. Surely the time has come to abandon legislation by reference, to place Mr Keeling on his well deserved pedestal and to consolidate legislation as a regular habit.
8.42 p.m.
Lord Williams of Mostyn: My Lords, not for the first time, I am grateful to the noble Lord, Lord Renton, for bringing this subject before your Lordships. This evening I have not heard anything with which I fundamentally disagree. Perhaps that is the radical approach that the noble and learned Lord, Lord Howe of Aberavon, urged upon me.
1224
Not long ago, when I was able to speak at the end of the gracious Speech, I suggested to your Lordships that interesting as the nature of our composition is, and continues to be, a more fundamental approach is how we carry out our work and whether we should change our working practices. None of the reforms put forward this evening is capable of being put into effect unless we have different working practices.
There is—I stress that this is my personal opinion—no justification at all for having a two-and-a-half month Recess as during that time this interesting, closely-argued work of scrutinising and improving legislation could easily be carried out. I float that as a personal view. If during a Committee stage 40 Members are interested and present, that is a surprise. I believe there are fewer than 40 of us present this evening. If we were able to timetable that efficient, useful work on legislation—the kind that has been described in the debate—during the Summer Recess, that would mean a commitment from each of your Lordships of perhaps one period of three or four days throughout the summer.
At present there is not sufficient parliamentary time to accomplish the ends that have been described this evening. I dissent from none of them: clarity, efficiency and economy in legislation. However, none of that can be brought about unless we are willing to work differently. I hope that we take this opportunity. My right honourable friend the Lord President in the Commons is eager to modernise procedures, not as some tabloid newspapers have foolishly said so that the Commons may work shorter hours, but so that it may work the same hours but to productive purposes.
We could lead the way. In this House there is a substantial body of expertise—and I must not say in parenthesis, expertise which may be lacking elsewhere, and I never thought to express it in any form of conceptual parenthesis. The present spread of legislation has increased and will continue to increase. On two forms of legislation—secondary legislation and European-derived legislation—I offer two innocent questions. Is secondary legislation adequately scrutinised? Is European-derived legislation adequately scrutinised? Both of those categories of legislation may affect the individual citizen in a more direct way than primary legislation. No one will carry out the remedial work if this House does not do it.
Lord Howe of Aberavon: My Lords, perhaps the noble and learned Lord will allow me to respond to that point in an interrogatory fashion. Is it not remarkable that in this House—without Standing Committees—we are able to carry out more effective scrutiny of primary and European legislation than the other place? The noble and learned Lord has refrained from making the comment, but the fact is that we undertake nearly all the scrutiny. That does not mean that we should not continue to do that, but it indicates that it is a much wider matter for both Houses. Underlying that is the need for better preparation of legislation before it reaches this House.
Lord Williams of Mostyn: My Lords, I entirely agree with the noble and learned Lord, Lord Howe of

1225
Aberavon. Limiting myself to this House, my proposition is that we do not carry out our work sufficiently well because we work in an absurdly archaic manner. When we come to some modest propositions that I hope to be able to put before the House about our working practices, I hope that every noble Lord who is present this evening will support what I say.
It is idle to say that we are a House of volunteers. It is fruitless to say that we have other work to do. If your Lordships want the negative batting-back of all propositions for improvement that have been put forward this evening, I shall say that I have other work to do in the morning and that I am only a part-time volunteer. That is the answer that is offered with the icy hand of history upon it. It is no good noble Lords correctly defining matters, as the noble and learned Lord, Lord Howe, has done.
We know the prescription, but we do not put it into effect. We will not be able to put anything into effect until we attend to our working practices. That means working sane hours, using the mornings and using two-and-a-half months in the summer and not tottering through the night, as we frequently have. I shall give way to both noble Lords as I intend to be entirely non-controversial. The answer is not to totter through at midnight and at two o'clock in the morning, failing to do our work because we are too tired and exhausted.
Lord Renton: My Lords, I confess that I am puzzled by what the noble and learned Lord has said. Bear in mind that for years we have been making several thousand amendments a year to government legislation that has come to us from the House of Commons. That is a sign of our industry, our expertise and our determination.
Lord Williams of Mostyn: My Lords, as I always know, the noble Lord, Lord Renton, has the figures at his fingertips. On many occasions the amendments are government amendments and government amendments of a technical and textural kind tend to imply that there has been an original failure and possibly even an original sin.
Lord Kingsland: My Lords, I believe that there is a distinction between the drafting of legislation and the scrutiny of legislation. As I understand it, this debate is about the drafting of legislation, its clarity and its usefulness to the general public. The noble and learned Lord has raised issues about the scrutiny of legislation and the manner in which this House scrutinises it. I make no complaint about that; but I hope that the noble and learned Lord will accept that there is a distinction. The two issues are obviously related but they are nevertheless distinct.
Lord Williams of Mostyn: My Lords, I do not accept that for a moment. I do not think that they are distinct. If we continue along that path we shall never achieve decent legislation. I listened most carefully, as I always
1226
do, to the noble and learned Lord, Lord Brightman. His six categories are irretrievably and rightly linked with drafting because drafting cannot be distinguished from scrutiny. Once we have proper, effective scrutiny in this House, which means changing our working practices, that will have an inevitable consequence. Legislation will be better drafted.
One of the answers is to increase the resource in parliamentary counsel. They are extremely highly skilled technicians. Their work is of the highest quality but there are too few of them. We ask them to do too much too late in the day. One remedy is to increase their number. We have increased the number from 36 in 1997 when this Government came to power to 43 today. We are therefore on target to 47 full-time counsel. They are exceptionally highly gifted and skilled. One of the dangers in all governments is putting too late to parliamentary draftsmen their policy instructions. I shall give way to the noble Lord, Lord Hooson, in a second, because I do not want to lose my next invaluable pearl.
I put this forward to your Lordships in a genuinely co-operative spirit. One way to improve scrutiny which would undoubtedly improve drafting is to wonder whether the carry-over rule has any sensible function. If we do not have that rigid carry-over rule and, nevertheless, have done extremely good work on Bills, would it not be wiser to accommodate at least some Bills in a carry-over system?
Lord Hooson: My Lords, does the noble and learned Lord also think that there is inadequate scrutiny and inadequate time for scrutiny in another place? I recollect from my days in another place that the process there is more streamlined and does not achieve as much. There is, therefore, more work to be done in your Lordships' House. But part of the remedy surely lies in another place.
Lord Williams of Mostyn: My Lords, that may well be so. However, at this time when we are defining our functions, our critical function should be the scrutiny of new legislation. As the noble Earl, Lord Attlee, indicated, it may well be the review of existing legislation. One of the reasons why we should be composed differently from the House of Commons—in other words, not wholly elected—is that we bring a different range of skills, experience and expertise to a different category of work. It may well be that the House of Commons fails to give adequate scrutiny but that should be no excuse why we should not redouble our efforts.
The noble Earl, Lord Attlee, asked about the attachment to statutory instruments of diagrams and so on. I put it generally; I think that it is a fair paraphrase. He knows that where appropriate maps and diagrams are sometimes attached. Where they are not, it is because of the fear of ambiguity which, as he knows with his experience, obtain in technical drawings as easily as in verbal descriptions.
The noble and learned Lord, Lord Howe of Aberavon, said that we need the machinery to make these desirable consequences occur. I agree entirely.

1227
But that is in the hands of this House. If we are determined to set up machinery which will work, it means extra financial resources, extra clerking resources for the committee—again, that is a difficult skill—and the extra resource of noble Lords determined to do the work for which we are supposed to be here. I had thought that the noble and learned Lord, Lord Mackay, was about to intervene.
Lord Howe of Aberavon: My Lords, I do not question the validity of the noble and learned Lord's point. Of greater importance surely is the continued enhancement on a much larger scale of the offices of parliamentary counsel. It is the time and resources that they are given that enables the product to be in a far better condition when it reaches either House. The six principles of the noble and learned Lord, Lord Brightman, have to be applied when preparing the primary product.
I agree with the noble and learned Lord that we may have to enhance our own resources. But of far greater importance is the enhancement of the primary workforce.
Lord Williams of Mostyn: My Lords, I have already made that point. We are not in disagreement. 1 repeat the figures. There were 36 parliamentary counsel when we came into office. Our target is 47. We have got up to 43. Parliamentary counsel have a distinct and rare skill.
I do not believe that these topics are capable of being distinguished. They must work together. I have heard nothing today with which I fundamentally disagree as a matter of principle. The noble Lord, Lord
1228
Goodhart, said that we do not use IT effectively these days. Most speeches in the House of Lords, siting judicially, are available on the Internet that afternoon. That is a distinct forward step.
I was grateful to the noble Lord, Lord Kingsland, who mentioned that Explanatory Notes have been a success. They were somewhat derided by those who were able to remember that it was never like that when they were a pupil. That is normally the conclusive argument that one hears on these occasions. Advance drafting is now more available. Pre-legislative scrutiny is also available. A number of Bills have been the successful objects of pre-legislative scrutiny. Noble Lords will not want me to give too many illustrations but, for instance, the Welfare Reform and Pensions Bill, the Limited Liability Partnerships Bill, the Financial Services and Markets Bill and the Food Standards Bill were all helped by pre-legislative scrutiny. A vast raft of Law Commission material is still available. I know that the noble and learned Lord, Lord Mackay, will point out to me that, although it appears non-politically controversial, some of it is: a good deal of it is not and it should be capable of being looked at in the fallow, arid dead times of the summer.
I am sorry that I have gone over my 11 minutes but it was deliberate to address the principled approach your Lordships have all expressed. The gloomy consequence to which I come is that we do not do our work properly. The better, more hopeful, conclusion is that we could. I believe that we can only do that if we attend to the way we work in a rather more efficient, realistic and—dare I say it?—modern way.
House adjourned at four minutes before nine o'clock.