Lords Sitting of 1 May 2001

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

Osteoporotic Fractures
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
What is the estimated cost to the United Kingdom of osteoporotic fractures.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the latest evidence suggests that the annual cost of hip fractures in the United Kingdom is in excess of £1.7 billion. Hip fractures are caused mainly by osteoporosis. Through the National Service Framework for Older People, the Government have signalled to the NHS the importance of addressing the issue.
Baroness Gardner of Parkes: My Lords, I thank the Minister for his reply. I declare a non-financial interest as joint-chairman of the All-Party Osteoporosis Group. Is the Minister aware that, according to the national service framework to which he has just referred, 14,000 people a year die in the UK following an osteoporotic hip fracture? The National Osteoporosis Society and the Central Council for Physical Recreation both stress the importance of increasing physical activity as a preventive measure for older people to retain bone strength. Does the Minister agree that there is a need for prevention and treatment and that treatment is now available for osteoporosis?
Lord Hunt of Kings Heath: My Lords, the noble Baroness is right to draw attention to the number of deaths as a result of osteoporotic hip fractures. My understanding is that osteoporosis affects one in three women and one in 12 men over 50. That is a striking statistic that the NHS should take seriously. Priority must he given to providing preventive services and treatment. I certainly agree that for most people osteoporosis can be prevented through lifestyle measures such as diet and exercise. That applies to all the population, not just to older people.
Lord Clement-Jones: My Lords, we, too, welcome the national service framework, but in view of what the Minister has said, is not information about osteoporosis vital? Is it not time that the Government started to think about giving more money for information services, particularly its grant to the National Osteoporosis Society?
Lord Hunt of Kings Heath: My Lords, I certainly agree that we need to give as much information as we
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can to the public, particularly about issues such as lifestyle preventive measures. I also acknowledge that the National Osteoporosis Society does excellent work and we have been happy to work with it. It receives some funding from the Department of Health through Section 64 grants. We are always willing to consider further applications. However, I cannot commit myself to sums of money—and I am sure that the noble Lord would not expect me to do so.
The Countess of Mar: My Lords, has the National Health Service followed up the work done at the Queen's Medical Centre, Nottingham, which found that young male sheep-dippers were suffering from osteoporosis of the spine, resulting in wedge spinal fractures?
Lord Hunt of Kings Heath: My Lords, I am not aware of the outcome of that work. Although we focus greatly on women with osteoporosis, men also suffer from the condition. Little is known about osteoporosis in men, so doctors have had to use knowledge gained from treating women, which is clearly not ideal. The department's research and development programme contains a number of research projects looking into the issue of men affected by osteoporosis.
Lord Colwyn: My Lords, I asked exactly the same Question three or four years ago, when the Leader of the House told me that the annual cost in 1994–95 was £742 million. It has gone up a lot since then. Does the Minister agree that prevention is far better than cure? In view of the scarcity of densitometers, would it not be more efficient to screen patients with a simple, reliable blood and urine test that identified telopeptides and other bone markers? We should look for signs that are available many years before fractures occur.
Lord Hunt of Kings Heath: My Lords, the noble Lord brings a great deal of expertise on the issue to the House. My understanding is that, as a result of the preparatory work for the national service framework, we have been able to produce more accurate figures on the cost of hip fractures. There has not been such a dramatic increase as the noble Lord suggested; we simply have a more accurate understanding of the cost now.
I agree with the noble Lord that if we can develop techniques for effective identification and screening, we should do so. The UK National Screening Committee, which advises Ministers on such matters, has advised us that at the moment there is not a simple, reliable test for osteoporosis that would meet its published criteria of being both clinically effective and cost-effective. However, we stand ready to review that and to ask the National Screening Committee to look at matters as they arise.
Baroness Masham of Ilton: My Lords, does the Minister agree that the issue is causing great concern among specific groups, such as paraplegics, as people grow older? Is there any suitable medication to stop the development of osteoporosis?
Lord Hunt of Kings Heath: My Lords, I believe that adopting certain lifestyle measures and ensuring the use of calcium and vitamin D in sufficient quantities are both important. As part of the national service framework and the original strategy produced by the Department of Health a couple of years ago, advice is given to GPs and consultants about the most effective form of treatment. However, while I accept the point that the noble Baroness has raised, I stress that a large part of our energies should be focused on lifestyle measures, targeting those at risk of developing osteoporosis.

Miners: Compensation
2.43 p.m.
Lord Islwyn Lord Islwyn asked Her Majesty's Government:
What progress has been made in the payment of compensation to former miners suffering from chest diseases as a result of their employment in the mining industry.
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, more than £406 million has already been paid to miners in compensation for health claims. Of that, more than £142 million relates to chest diseases—some £30 million more since the noble Lord raised the matter in February. We continue to pay out over £1 million more a day.
Although substantial progress has been made, we continue to make every effort to speed up the process. In the past few months, we have taken measures to ensure that the oldest and sickest claimants are seen before the younger and fitter ones; we have written to all respiratory consultants in order to recruit more; we have opened two regional scanning centres; we have authorised the commissioning of two mobile testing units; and we have established links with Scottish, English and Welsh registrars to obtain death certificates directly. We are also prepared to consider any other suggestions for speeding up the process within the legal framework of the judgment.
Lord Islwyn: My Lords, does the Minister appreciate that mining communities up and down the country will he pleased that progress is at last being made in paying compensation to the most deserving cases? Can he say whether any new fast-track schemes are envisaged? Will he look in particular at the plight of widows, who, it appears, are not included in any priority procedure? Will he give noble Lords an assurance this afternoon that the Government will take all necessary steps to try to remedy that situation?
Lord Sainsbury of Turville: My Lords, we prioritise claims from the most ill, the oldest and those whose screening spirometer indicates that they have the greatest injury to their lungs. I can assure my noble friend that widows are also prioritised. They receive priority points based on the age of the original
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claimant. If my noble friend knows of any cases where that scheme appears not to be operating, I should be grateful if he would let me know and I shall see whether it can be remedied.
Lord Ezra: My Lords, in view of the substantial backlog of claims which still exists, will the Government consider whether, even at this stage, they could introduce a statutory scheme which would speed up the settlement? It would then be for claimants to choose whether to go through the faster, statutory scheme or to take their turn in the common law scheme.
Lord Sainsbury of Turville: My Lords, having embarked in 1996 on the scheme which involves the courts, I believe that it would be very difficult to introduce a scheme which essentially gives a flat-rate payment without employing the procedures that are now being put in place to make an exact assessment of the state of claimants. I shall certainly have a look at the matter. However, having embarked on the legal scheme, and particularly in view of the fact that there are now 145,000 claims, it is difficult to envisage a second scheme which would make no assessment of the validity of the claimants.
Lord Renton: My Lords, bearing in mind that pneumoconiosis is the worst and most frequent disease to the chest suffered by miners and that it is incurable, will the Minister say whether the National Joint Pneumoconiosis Committee is still functioning and still trying to persuade young miners to obey the rules which would prevent their getting pneumoconiosis?
Lord Sainsbury of Turville: My Lords, I believe that since those claims were made enormous steps have been taken in terms of control over working conditions. We are now dealing with completely different conditions in the mines.
Lord Lofthouse of Pontefract: My Lords, although I recognise the efforts that have been made to speed up the scheme, for which the miners are very appreciative, the situation is far from satisfactory and the delays are still not acceptable. My noble friend will be aware that on 15th March in the High Court Mr Justice Turner informed the DTI that if, in the near future, it could not produce an acceptable timetable to resolve all claims, he would have to undertake a difficult inquiry. Does my noble friend agree that it is now time for that difficult inquiry to take place?
Lord Sainsbury of Turville: My Lords, I am satisfied that within the DTI everything is being done to take the matter forward as quickly as possible. The main problem is in relation to respiratory consultants. We have taken a whole series of actions to try to increase the number of such consultants and are now employing on this work some 230 of the 600 respiratory consultants available in this country. As I said in my Answer, we shall try to adopt any methods or actions that may be suggested as a means of

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speeding up the process. If Mr Justice Turner believes that he should hold an inquiry on this matter and can suggest ways in which the process could be made to work faster, we shall of course be only too happy to take action.
Baroness Gardner of Parkes: My Lords, since my recent visit to South Shields, the local paper has put forward a campaign for a local centre because, it said, it was too difficult for people to attend the referral centres mentioned by the Minister in his Answer. Can he tell me why people have to travel long distances to a centre? Is it because of the shortage of consultants, or is it due to the physical facilities? Could those people be assessed al a local hospital?
Lord Sainsbury of Turville: My Lords, we have set out a pattern relating to the location in which consultants will carry out that work. We are prepared to open those centres at any hour of the day and during weekends to suit the convenience of consultants. If there are particular instances in which there seems to be a case for having another centre—perhaps because people have to travel long distances—I should be very grateful for that information. We shall consider whether we can deal with that situation.
Earl Russell: My Lords, I am grateful to the Minister for his remarks on respiratory consultants. Can he tell the House how many posts for respiratory consultants are now vacant, and what was the equivalent figure on 1st May 1997?
Lord Sainsbury of Turville: My Lords, I shall be only too happy to write to the noble Lord with those figures.
The Lord Bishop of Wakefield: My Lords, I am encouraged by the Minister's comments. Does he accept that many of the people who live in former mining communities had throughout their lives longed for—indeed, prayed for—a strong Labour government? I ask that because for the past nine years in my diocese I have been alongside many miners and former miners, some of whom have been waiting for compensation. They are deeply disappointed in this regard by the Labour Government's response so far.
Lord Sainsbury of Turville: My Lords, the Government's record on this issue is that on coming to power—almost simultaneously with the original judgment being handed down—we agreed right away and without taking other considerations into account to take forward compensation. We have done all that we can to do so as fast as we can. I have not heard it said that we have failed to take action that could have moved the matter forward sensibly. Our record in that regard is remarkably good. If we can do more, we shall do so. I appreciate that it is completely unsatisfactory for people to feel that although compensation was available for them, they had difficulties getting it. Nevertheless, as I hope that I have made clear, we are using all the resources that we can to deal with the situation.

Turkey: EU Accession
2.52 p.m.
Lord Harrison Lord Harrison asked Her Majesty's Government:
Whether they welcome the Turkish Government's national plan for European Union accession, published on 19th March.
The Parliamentary Under-Secretary of State Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, the Government welcome publication of the Turkish national programme for the adoption of the acquis, and look forward to further clarification of the Turkish Government's proposals in due course. If the reforms that they outline are put into effect rapidly and effectively, the programme will represent a major step forward for Turkey and will mark real progress in the pre-accession strategy for Turkey, which was set out by the Helsinki European Council in 1999.
Lord Harrison: My Lords, I thank my noble friend for that very encouraging Answer. Does she recognise that Turkey still has considerable problems, including those associated with Cyprus, the Kurdish question and human rights? Does she also recognise that the EU accession programme that she recently published proposed some 90 new acts to deal with that situation? In light of all that, what more can the Government do to encourage our EU partners to take Turkey's application seriously, given that it is a staunch ally of NATO and that it has a significant European history, culture, tradition and economy?
Baroness Scotland of Asthal: My Lords, we acknowledge that Turkey faces a number of challenges. As my noble friend rightly recognises, we have worked energetically with our EU partners to persuade and encourage them to join with us in persuading Turkey to meet those challenges. Since the Helsinki European Council set out a comprehensive pre-accession strategy for Turkey, the UK, with the EU, has worked hard to take the matter forward. The EU has doubled the pre-accession assistance for Turkey to nearly 180 million euros per year.
Lord Wallace of Saltaire: My Lords, does the Minister accept that the importance, delicacy and difficulty of relations with Turkey require rather more attention at senior level from the British Government? I am struck by the fact that the British Prime Minister has, I believe, met President Putin, for example, five times in the past year but I am not aware that he has visited Ankara or Istanbul. Does she also accept that we have a forthcoming potential crisis over Cyprus? Negotiations between Cyprus and the EU are likely to be completed in the next year without a settlement of the conflict between the two communities. At that point, the Turkish Government are bound to object to Cyprus joining the EU well before Turkey does.
Baroness Scotland of Asthal: My Lords, I understand the noble Lord's anxiety about the

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delicacy of the situation, which we of course share. I do not agree with his suggestion that attention at a senior level has not been paid to Turkey. The Government have been heavily engaged in this issue for some time. There is no sense that Turkey feels that inappropriate attention has been given to her difficulties. Political difficulties of course continue in relation to Cyprus. It appears that we have a better chance of resolving those difficulties now than we have had previously.
Lord Janner of Braunstone: My Lords, does the Minister agree that the United Kingdom's relations with Turkey are excellent and that Turkey has a unique position in its area and a unique and constructive role to play in the Middle East? We should continue to do all that we can to help it, especially in relation to its present economic difficulties, in the hope that it will qualify before long for accession to the EU.
Baroness Scotland of Asthal: My Lords, I certainly agree with my noble friend's comments on the need to encourage and help Turkey. We have demonstrated our willingness and ability to do so. It is right that Turkey should be encouraged to meet all of the acquis criteria to the full, as any other aspirant to EU membership has to do.
Lord Avebury: My Lords, is the Minister aware that at least in the executive summary of the programme there is no mention of the Kurds in particular or of minorities in general? Does she agree that it is necessary for Turkey not only to put 90 promises on to a piece of paper but also to implement them in order to comply with the Copenhagen political criteria?
Baroness Scotland of Asthal: My Lords, I would agree with the noble Lord; we believe that Turkey must address the social and economic problems of south-east Turkey and the social, cultural and economic aspirations of the Kurdish community if that region is to enjoy stability. Our concerns are reflected in the accession partnership. Turkey's national programme includes details of the legal and administrative measures that the Turkish Government are putting in place to comply with the Copenhagen political criteria. Areas for reform include cultural life and individual freedoms. It is right that those issues should be continually highlighted and that Turkey should be encouraged not only to speak about those matters but, as the noble Lord said, also to deliver.
Lord Howell of Guildford: My Lords, despite the problems that were rightly mentioned by the noble Lord, Lord Harrison, does the Minister agree that Turkey is an important part of both the European security equation and the European economic equation? Given that, does she agree that every sympathy and understanding should be extended to meeting Turkey's doubts and problems about participating in the pre-decision planning and the operational planning for the proposed European rapid
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reaction force? Will the Government be rather more supportive of that than they appear to have been so far?
Baroness Scotland of Asthal: My Lords, the Government have been very supportive indeed of Turkey's position in that regard. Of course we acknowledge that Turkey is a very important part of the security equation. Nothing that Her Majesty's Government have done in any way undermines that. We have to move forward and we have to do so together with our NATO partners with proper understanding and consultation and with unity.
Lord Marsh: My Lords does the Minister agree that by far the most important and pressing issue is Turkey's internal economic problems? With 1.6 million lira to the pound and raging inflation, 150 million ecu will not go very far. Is not the IMF the only organisation that can really help in a situation like this?
Baroness Scotland of Asthal: My Lords, the noble Lord will know that the IMF has in fact helped. A package involving the IMF meant that 10 billion dollars has been proposed for Turkey. That is a very important advance. We certainly hope that judicious use will be made of that money and that Turkey will avail herself of the opportunity to resolve some of her pressing difficulties.

Manufacturing Industry
3 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy asked Her Majesty's Government:
Whether they are satisfied with the effects of their economic and fiscal policies on the United Kingdom's manufacturing industry.
Lord McIntosh of Haringey: My Lords, manufacturing output grew by 1.6 per cent in 2000, the fastest rate of growth since 1994. Both the Government and independent forecasters expect further growth this year.
Lord Roberts of Conwy: My Lords, the noble Lord will know that 350,000 jobs have already been lost in manufacturing industry. He will also know that thousands more are due to go in the new technology sector. He may also be aware that first quarter growth is down to a near recessionary 0.3 per cent. In view of all that, how do the Government propose to meet their high spending targets without increasing taxation and thereby depressing industry and investment still further?
Lord McIntosh of Haringey: My Lords, the decline in manufacturing industry as a proportion of all employment in this country has been going on for many years. Indeed, Sir Kit McMahon reminded us recently that we have not had a surplus in exports of goods since the 1840s. In point of fact, the decline in

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manufacturing employment in this country is now at half the rate that it was under the previous Conservative government between 1979 and 1997. Of course, it is still not satisfactory. But we have taken all of those facts into account in the Chancellor's Budget programmes.
Lord Barnett: My Lords, my noble friend will be aware that the House's new Select Committee on Economic Affairs is looking at the whole issue of globalisation. In that context many multinational companies are larger in market capitalisation than many small countries. How does he suggest our Government, or any other government of this country, can help manufacturing industry here?
Lord McIntosh of Haringey: My Lords, the committees of your Lordships' House have a distinguished record in looking at manufacturing industry since the outstanding report of the late Lord Aldington. I look forward with great interest to the conclusions of the economic affairs committee and to responding to them.
Lord Clark of Kempston: My Lords, can the Minister explain the logic behind government thinking to give a tax incentive to savings with the proposed baby bonds yet at the same time penalise pension funds, which are of such importance to manufacturing and every other industry in this country? What is the Government's logic?
Lord McIntosh of Haringey: My Lords, the noble Lord, seems to have forgotten that it is only a couple of months since his own party was proposing considerable tax incentives for savings and criticising us for not doing so. I do not know on what basis he has now changed to criticising the baby bonds proposals.
Lord Hooson: My Lords, will not the noble Lord now reply to the question of his noble friend Lord Barnett? How can this Government, or any government, affect the placement of manufacturing industry in this country when it is controlled in the global economy by companies whose budgets are much larger than many national units?
Lord McIntosh of Haringey: My Lords, of course I acknowledge the truth of what the noble Lord, Lord Hooson, and my noble friend Lord Barnett say. It is the case that multinational companies have great freedom as to where they place their investment. However, it is the fact that the UK has been punching well above its weight in acquiring its share of inward investment into Europe for a number of years. Despite the difficulties experienced and expressed in the questions, we still have a high proportion of inward investment to this country. Our flexible labour market conditions, our stability and freedom from boom and bust must have contributed to that.
Lord Tomlinson: My Lords, will my noble friend correct me if I am wrong? In recent months bodies such
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as the IMF, the European Central Bank, the Commission of the European Union and the G7 have all praised the fiscal policies of her Majesty's Government and said that they have left the United Kingdom with an economic situation in which we are better placed than any other economy to withstand the threat of recession that currently faces us following the downturn in the United States.
Lord McIntosh of Haringey: My Lords, I am glad to have confirmation, both from my noble friend and the sources he quotes, of what I attempted inadequately to say in answer to the last question.
Lord Saatchi: My Lords, does the Minister remember when, in the long years of opposition, his colleagues in another place wore their hearts on their sleeves about the sad state of British manufacturing? Where are their hearts now that they themselves are presiding over an official recession in manufacturing and, as my noble friend said, the loss of hundreds of thousands of manufacturing jobs?
Lord McIntosh of Haringey: My Lords. I have already made clear in my answers that the continuing and long-standing decline in manufacturing jobs is not welcome to the people of this country or to Her Majesty's Government. However, the noble Lord is quite wrong in saying that we are under any definition of recession in manufacturing industry. According to the latest figures—for the three months to February of this year—compared with the previous year, manufacturing productivity rose by 6 per cent. manufacturing exports rose by more than 10 per cent, including more than 6 per cent to the European Union, and as I said in my first Answer, manufacturing output is still growing.

Criminal Justice and Police Bill
3.8 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 13 [Designated public places]:
Baroness Buscombe Baroness Buscombe had given notice of her intention to move Amendment No. 29:
Page 7, line 16, leave out paragraph (b) and insert—
"(b) any area to which members of the public have or may gain access"
The noble Baroness said: In rising to speak to Amendments Nos. 30 to 34, I advise the Committee that I shall not move Amendment No. 29.
[Amendment No. 29 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 30:
Page 7, line 22, after "been" insert "or may be"
The noble Baroness said: In moving Amendment No. 30, I shall speak also to Amendments Nos. 31 to 34.
A similar group of amendments was debated in another place with unsatisfactory results. The amendment seeks to increase flexibility on all sides in the hope that the on-the-spot hybrid can be workable without being too draconian for the vast majority of us who are law abiding citizens.
Amendment No. 30 seeks to bring flexibility to the use of the proposals to help local authorities respond to possible future situations. Perhaps I can give a brief example. A local authority may face a situation where, while its own football team enjoys the support of well-behaved fans, it is expecting the arrival for a fixture of a team whose fans carry a different, disruptive reputation. In that instance, our amendment would enable the local authority to respond to that fixture by designating the area surrounding the ground.
Amendment No. 31 seeks to protect the police officer who, in an instance where there is a need to act swiftly to abate an unpleasant, difficult situation, in all innocence exceeds his powers by acting in an area which is not in fact a designated public place. For example, a police officer may act in a situation where, unknown to him, the designation had recently been lifted by the local authority but the signs designating the area have not been removed.
Amendments Nos. 33 to 35 seek more flexibility to enable local authorities to meet the many different uses of public places. Public parks, for example, are regularly used these days for all kinds of activities—such as concerts and open-air theatre—which are beyond day-to-day dog-walking and sports, and, sadly, the gathering of those for whom the designated areas are intended. It would be a great shame if local authorities were unable, with relative ease and with the support of the local superintendent of police, to lift the designation on a temporary basis to allow concerts, and so forth, to take place.
Amendment No. 32 is intended to ensure proper accountability and transparency with regard to the use of the powers granted in the Bill. There is little doubt that local authorities will use many opportunities to designate areas under the Bill. Some will use a blanket approach to try to deal with the growing problem of anti-social behaviour, the "yob culture". It is questionable whether the designated areas will solve the problem, apart from alleviating it in that particular place. The underlying real problem will move and probably cause upset and unhappiness elsewhere. Unfortunately, no amount of legislation will necessarily change that. Perhaps I can briefly take time to say that a change in culture would, but, sadly, we can do nothing about that today.
Efforts on the part of police and local authorities are often hampered and compromised by mixed messages sent out to the public. A stark example is that of the killers of James Bulger. On the one hand, children and young people hear, "Let's get tough on yobs and fight the causes of crime" and then hear that young killers are rewarded with tickets to see Manchester United and with Playstations in order, we are told, to get them used to normal living. That is not normal living; it is privileged living.
Local authorities know that the problem will move, but not necessarily off their patch, in which case they will tackle the problem with multiple orders for designated areas. Our concern is to ensure that it is decided in proper open debate whether or not these areas should be designated and to ensure, so far as is practicably possible, that all layers and interests of local government are kept in the picture and are able to influence the process through their elected representatives. In addition—we believe this point is important—it is hoped that where there is proper communication and proper accountability at all levels of government, public awareness will assist in seeking across the board co-operation for these measures. Therefore, given the importance and impact that this part of the Bill is likely to have across the country, we firmly believe that only a meeting of the full council should have the power to designate areas for the purpose of the Bill. I beg to move.
3.15 p.m.
Lord Bassam of Brighton: The Government consider that Amendments Nos. 30 and 31 go too far in eroding the principle that the new police powers provided by Clause 12 should only be applied in public areas designated for this purpose by the relevant local authority.
The purpose of Clause 12 is that public drinking should be restricted only in certain circumstances. We have no wish to introduce a comprehensive ban on drinking in public, and consider that the clause powers should not be extended to all public areas. It is right that it should remain the responsibility of the locally-elected body to determine the justification for designating specific public places within its area for that purpose. In our view the amendments would undermine that important principle.
It is also right that people should be able to go about their lawful business in public places without interference, provided they are acting lawfully and causing no offence or problem to others. That is why we consider it important that the local authority decision to designate a public area should be based on evidence of the problem that this measure will seek to address. That is why we do not accept Amendment No. 30, which seeks to extend the local authority's power to designate areas which may in the future experience such problems rather than, as the Bill is

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presently drafted, focus the justification for the local authority's decision on evidence of an existing problem associated with anti-social public drinking.
How can the local authority know with any certainty which public places will in future experience problems? There is the potential that every public place would fall to be designated if we were to accept the amendment because there is always the possibility—remote, I accept, in some instances, but still a possibility—that any public area could experience these problems.
There is no need to attempt to cover areas which may in future experience difficulties. Local authorities will be able to make designation orders in respect of such areas should they begin to experience problems, and they will be able to do so with less bureaucracy than is the position under the existing by-law regime. It follows from that that we do not consider it appropriate to write into the Bill exceptions to the principle that the new police powers should be exercisable only in areas designated for that purpose by the relevant local authority. We would do so if we were to accept Amendment No. 31. The effect of the amendment would be almost to render the designation process unnecessary if the police could exercise the powers in any public place.
The amendments run contrary to the spirit of the Joint Committee on Human Rights in its report on its scrutiny of the Bill published on 26th April. In respect of the measures relating to alcohol consumption in public places, the committee noted that they,
"meet the needs of legal certainty and pursue a legitimate aim".
However, the report raised the question of possible additional safeguards to ensure that these measures are not exercised in an arbitrary or disproportionate way. The specific points raised by the committee fall to be addressed within the context of the regulations to be made under Clause 13(4). But the amendments, which erode the principle that the new police powers should be exercisable only in areas designated by the local authority based on evidence of an existing rather than a possible future problem, would be inconsistent with the emphasis that the committee placed on the need for the local authority to have evidence of "a current threat" of crime and disorder, and the significance of evidence of the frequency of alcohol-related crime or disorder over a period of, say, six months.
It is the Government's view that designation orders, which will be the trigger for the powers set out in the Bill, should be made by the relevant locally-elected body and not be delegated to one council member or an official in the council employ. However, this is essentially a procedural matter and it would be more appropriate to address this point, along with other procedural issues, in the regulations to be made under Clause 13(4). Those will be made by statutory instrument and will be subject to parliamentary scrutiny.
The detailed drafting of the regulations must follow the stages of the Bill but the Government have committed themselves to consulting the Local Government Association about the detail of the
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regulations. That will include seeking the LGA's view on whether the regulations should specify that decisions about designation orders should be made only by the full council or whether they should allow for the possibility of delegation to a politically balanced committee of the full council.
Other relevant matters to be covered by the regulations include consultation prior to making the designation order with the police and others as appropriate to ensure that the local authority satisfies itself that the area concerned has experienced the problems associated with public drinking in order to justify the designation order; consultation with town and parish councils within the local authority areas about public places to be made the subject of designation orders and consultation with neighbouring councils where designation orders apply to places on the borders of different local authority areas. Other matters will cover publicity, including the need to ensure that such areas are clearly identified as being areas to which the powers will apply.
It will be in drafting the regulations that we shall address the issues raised by the Joint Committee on Human Rights concerning the steps that local authorities should take when deciding whether to designate a particular place for this purpose and the possible need for additional safeguards in terms of the nature of the evidence of the problem it seeks to address.
I turn to Amendment No. 32A. The Government have some sympathy with the purpose behind the amendment, which is intended to ensure that the powers of local authorities to restrict public drinking in certain circumstances are not used in an arbitrary or disproportionate way. This is an issue which was raised by the Joint Committee on Human Rights.
While the Government have sympathy with the amendment, they consider that it could be too restrictive in that local authorities should have the possibility to designate a public place which is experiencing serious problems associated with anti-social public drinking, even if these have not been continuing for as long a period as six months. Where there are such serious problems, it may be unreasonable for local people to endure the disorder or crime for such a period.
The important issue here concerns the quality of the evidence that the local authority should have before it in deciding whether to designate a public area for the purpose. This will include evidence from the police of the seriousness of the problem. Where there is a significant problem, which may not have been continuing for a period of six months but which is nevertheless causing harm to the local community, we believe that the local authority should have the option of considering whether a designation order is appropriate in the circumstances. These matters will be further addressed in regulations.
The Government consider Amendments Nos. 33, 34 and 35 to be unnecessary. It is right that the local authority's power to designate public places should be set out in such a way as to ensure that it is able to define

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sufficiently clearly which public areas are designated for the current purpose. The power as currently set out in the Bill will enable the local authority to achieve that. It allows the local authority to identify the place "specifically" or "by description", and that should be sufficient for most purposes. We therefore consider it unnecessary to go further, as suggested by Amendment No. 33.
In bringing these powers on to the statute book, it is also the Government's aim to simplify procedures for local authorities and to allow for greater uniformity and a comprehensive approach in all matters. Amendment No. 34, which would allow local authorities to specify that designation orders should apply only at particular times, or on particular days, would take us well away from that objective.
The amendment seems to be based on the assumption that disorder and nuisance caused by public drinking will always occur at particular times or on particular days, almost as a matter of routine. That may be true in some instances. For instance, it may often be the case that such nuisance in city-centre areas arises in the evenings or at night when the pubs and clubs are closing, and most often at weekends.
However, that will not always be the case. We consider that it is right that once a local authority designates an area because it is experiencing the public drinking problems, the restriction on public drinking and the associated police powers should apply at all times. This will ensure that the area does not end up with the unsatisfactory situation of people drinking and misbehaving in that area, knowingly, at times other than as specified, with the police powers to deal with the nuisance significantly restricted.
We do, however, accept that there may be times when it is inappropriate for a police officer to exercise the powers in a designated place. That appears to be the principle behind Amendment No. 35. But the clauses as presently drafted allow for this, and the amendment, allowing for the suspension of designation orders, is therefore unnecessary.
It will not be an offence to drink alcohol in a designated public place. The offence will be to continue to do so after being required by a police officer not to do so. There may well be circumstances when the officer, using his or her discretion, considers it appropriate not to warn the individual to stop drinking. That would be right and proper. As with many other offences, the officer's discretion will be there to be used.
Similarly, there may be times or occasions when there is an activity, perhaps a festival, which takes place in an area which is subject to a designation order and which may involve some public drinking. Where such an event is sanctioned by the local authority and the police, there will be no need for the local authority to suspend the designation order. The more straightforward approach will be for the police to agree not to exercise the powers they have for the duration of the event in question. Where the drinking is orderly, acceptable and causing no nuisance or
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offence, there will be no need for police officers to require anybody to stop drinking and no offence will be committed. The police will however retain their powers in these circumstances, which could be used to useful effect should proceedings at such an event get out of hand.
I have gone into some detail about the various points raised in the amendment. I have given a full response and I hope that the noble Baroness, Lady Buscombe, will feel able to withdraw it.
Lord Lester of Herne Hill: Perhaps I may speak to Amendment No. 32A, which stands in my name and that of my noble friend Lord McNally. Although the Minister has been kind enough to address the amendment, he has not yet heard anyone speak on the specific subject.
We have tabled the amendment in order to enable the views of the Joint Committee on Human Rights, referred to by the Minister, to be directly before the Committee in considering this and other parts of the Bill. I emphasise that the wording of the amendment is not that of the Select Committee but is my own attempt to reflect what the Committee will find, in particular in paragraph 19 of the report.
Perhaps I may first comment on the Select Committee. It has been in existence for fewer than four months. I am sure that my colleagues present today and who also have the privilege of serving on the committee will agree that we have managed to make effective and practical advances in our role, among other things in scrutinising legislation. We have been greatly helped by a most able chair in the form of Jean Corston MP and by some outstanding officials; the legal adviser, Professor David Feldman, and the two Clerks from each of the two Houses. It is fair to say that we have developed a spirit of joint enterprise which reaches well beyond parties and that our decisions have been unanimous. It is good to know that the Minister and his colleagues have taken our work seriously. We were greatly helped by the written and oral evidence given by representatives from the Home Office, lead by the Minister of State, Mr Charles Clarke MP, and by the way in which the department was forthcoming in giving its reasons for the compatibility statement made by the Home Secretary on the face of the Bill: that is, its reasons for considering the Bill to be compatible with the rights guaranteed by the European Convention on Human Rights and by the Human Rights Act. I shall say that only once—I shall not repeat it—because it is right to have it on the record.
Furthermore, we have done our best in the report to be practical and well focused. It will be for Members of the Committee to judge whether this is the kind of report they find useful and we shall no doubt learn from experience in our future work or that of our successors on the committee.
We have been sparing in the issues we have addressed. We have not adopted a scatter-gun approach. We have tried to single out those few issues that are of particular importance. We have not

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addressed the underlying policy, the political policy, behind the legislation but have looked at it against the standards of the human rights convention.
Amendment No. 32A focuses on the principle of proportionality to be complied with in the designation of public places by local authorities under Clause 13. We are worried about the need for safeguards against abuse. There are several possible safeguards. One is to write safeguards on to the face of the Bill, which is what Amendment No. 32A seeks to do. Another is to write safeguards into the regulations. A third is to safeguard the courts which, under the Human Rights Act, have the power to review the compatibility of the statute and the regulations against the standards of Article 8, which is the right to personal privacy and private life in the Human Rights Act and the convention.
The Select Committee pointed out that the width of the power as it stands in the Bill is open to abuse. It expressed the hope that steps will be taken to reduce the risk that aggrieved persons would feel the need to challenge the decisions in court. We pointed out that in evidence the Minister accepted the need for the Government to monitor the use of the power and we expressed the hope that the method of monitoring would enable the Government to ensure that the powers were being used in a proportionate way.
Obviously, this is a probing amendment, but perhaps I may probe the matter a little further in the light of the Minister's very helpful answer. The real question is whether in drafting the regulations the Government accept that it is necessary to include adequate safeguards of proportionality to make sure that the lawful power is not used to excess and that the recent history of the area will play a significant role in the decision to designate. We do not seek to place an arbitrary requirement on local authorities to make designation a mathematical or quantitative analysis of how many incidents have occurred in an area, or to set out a fixed time-limit which must expire before an order can be considered redundant. But we need some assurance that the principles set out in our report will be reflected in the regulations. We all trust the Government—famous last words—to be able to translate the principles into practice in the regulations, and we have to approve those regulations affirmatively. However, if the Minister can give some assurance as to the principle, not the detail, that will meet the needs of the committee and this amendment.
3.30 p.m.
Lord Windlesham: There is a marked contrast between this part of the Bill and the debates which we had yesterday on the first part which dealt with fixed penalty notices. Without repeating what was said then, the concept of a fixed penalty notice is fundamentally misconceived, offends against the principles of justice and is unlikely to achieve its objectives. But that was yesterday's debate. The Committee has moved on to consider new powers to combat what is acknowledged as a widespread social evil. There is no doubt that excessive consumption of alcohol in public places is often a menace and is only too easily recognisable, but,
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as so often when dealing with the unpredictabilities of human nature, the problem lies in how best to counter it. Where should the line be drawn between behaviour that is simply offensive and unacceptable to many people who are affected by it and the point at which legal intervention is justified?
There is nothing new in legal restrictions on excess drinking. The entire licensing system—local magistrates, by-laws and so on—is of long standing, but the question now is whether there is scope for further statutory intervention to combat excess consumption in public places; and, if so, what measures are most likely to be practicable and proportionate to the scale of the offensive behaviour. This follows the theme of the contribution of the noble Lord, Lord Lester.
The main provision is the power to make orders designating specified public places as alcohol-free zones. That is an ambitious objective. The second is a power for senior police officers to make a closure order in respect of certain licensed premises for a period of up to 24 hours.
The Committee is indebted to the noble Lord, Lord Lester, for drawing attention to the report of the Joint Committee on Human Rights, of which he is a distinguished and highly informed member. That report was published as recently as last week. Welcome though it is, it is a matter of regret that the report of a Joint Committee set up several months ago, which has been working diligently for a considerable period, is able to be published—I know not whether the fault lies with the committee or those to whom it delivered its report—only on 23rd April, after the lengthy proceedings on this Bill had been completed in the House of Commons. It was therefore impossible for the other place to take account of the findings of the Joint Committee. But, as the noble Lord, Lord Lester, said, the report lays down a number of guidelines which can be of great value and usefulness to us as we complete our consideration of this Bill.
Perhaps I may say to the noble Lord on the Front Bench that it was welcome to me and, I am sure, other Members of the Committee that in answer to the first amendment the Minister referred several times to the contents of the Joint Committee's first report. Therefore, it is unnecessary at this stage to reiterate what he has already said. However, we shall be vigilant.
Lord Goldsmith: Also as a member of the Joint Committee on Human Rights I should like to speak particularly to Amendment No. 32A. First, I should like to make one observation on the remarks of the noble Lord, Lord Windlesham. I associate myself with the remarks of the noble Lord, Lord Lester, about the pleasure and privilege of being involved in the Joint Committee. In those cases where the committee decides that it wants to scrutinise particular legislation, its new challenge is to decide how that will fit into the parliamentary timetable.
I am very glad that we were able to produce a report before Committee stage in this House. In all the circumstances of the establishment of that committee,

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it was not possible for it to complete any work before another place completed its deliberations, but I hope that at least the report as it stands is of benefit to this Committee as it considers the Bill.
The particular point on which I wish to touch is that which is covered by Amendment No. 32A. The background is very straightforward. It is not the job of the Joint Committee to determine policy or second guess it; that is a matter for Parliament. There was a very strong endorsement of the policy, particularly by the noble Lord, Lord McNally, yesterday evening, in that in the interests of all of us it is important that certain public -places which in the past have been associated with disorder and drinking should be made alcohol free. In that way we can all enjoy the centre of Brighton or, in my particular case, Liverpool, to which the noble Lord, Lord McNally, referred yesterday.
As I understand the report, the committee does not take the view that the clause as drafted is incompatible with the Act. If the legislation is enacted in that form, it will be compatible. The point is a rather different one. A power is being granted and, as in the case of so many powers, it is possible that it can be abused and used in an inappropriate circumstance. What kind of inappropriate circumstance? One sees the conditions in Clause 13(2). I believe that the critical point is the designation of places which have been associated with nuisance or disorder and the consumption of alcohol. That is not intended as a punishment for the owner of a shopping mall or a person who is in charge of a particular public place. As I understand it, it is intended as a way to prevent disorder in the future.
The amendment in the name of the noble Lord, Lord Lester, is intended to ensure that the attention of the local authority which makes the order is focused on the purpose of the power and has regard to past evidence in regard to drinking to determine the degree of risk that in the future there will be disorder again. My noble friend the Minister has already made the point that six months might look like an artificial period. I do not believe that the committee intended its recommendation to amount to any kind of statement that this power should be limited to cases where one can say that there has been one, two or three incidents within the past six, 12 or 18 months. Indeed, one can imagine circumstances where disorder and drinking are associated with a particular event which perhaps happens once every one or two years.
The real point is to ensure that local authorities look at the evidence in order to see that they are designating an appropriate place. There are different ways of so doing. I am grateful to the noble Lord, Lord Lester, for tabling the amendment because it enables one to raise that issue. But, fundamentally, so long as there is a recognised safeguard and some way of ensuring that the power is used properly, it is an entirely appropriate provision.
I add one comment on the amendment proposed by the noble Baroness, Lady Buscombe. It would not be appropriate for a police officer to be able to require someone to give up their glass of wine or beer where the place was not designated as an alcohol-free zone, 570
even if it was entirely reasonable for the police officer to believe that it still was, because if the person did not give up their drink the consequence would be that that person could be guilty of a criminal offence. The important point in those circumstances is that the person should not be guilty of a criminal offence if the police officer has made a mistake. It may be a reasonable mistake. There may be no reason to discipline the police officer or anything of that kind, but the person should not be guilty of an offence. I do not support the amendment. Perhaps the noble Baroness will not press it.
Baroness Buscombe: I thank the Minister for his response. We have had an interesting debate on this subject from all parts of the Committee. I thank in particular my noble friend Lord Windlesham for his support in reaffirming the point that it is important to consider, as the noble Lord, Lord Lester, said, the proportionality in relation to the way these measures are used by local authorities and by the police.
I accept for the most part what the Minister said. I thank him for the reassurances he has given in relation to the proposed statutory instruments which will make express reference to publicity and to the way that these designated areas will be implemented, so that their effect will be communicated to everyone.
I have one question for the Minister in relation to the notices that will go up in relation to these designated public places. The noble Lord made absolutely clear that mere drinking in a designated public place will not necessarily be an offence. It will only be one if an individual refuses, when asked or pressed by a police officer, to surrender that alcohol. Will that be made clear on the notices? I ask the question because it is tremendously important that the public understand where they stand in relation to their behaviour in a designated public place, particularly as we have been questioning the matter in this House and it was questioned in another place. That is extraordinarily important.
Lord Lester of Herne Hill: Before I have to decide what to do about Amendment No. 32A, can the Minister indicate whether the Government will ensure that the regulations meet the principle of proportionality? That is to meet the point raised by the noble Lord, Lord Goldsmith, myself and others.
3.45 p.m.
Lord Bassam of Brighton: I thought I would enable the noble Baroness, Lady Buscombe, to consider her position first before taking the point raised by the noble Lord, Lord Lester. We have probably gone a little out of order.
To answer the question of the noble Baroness, yes, we would expect that information to be made plain on the notices. I expect that any sensible local authority would want to give considerable publicity to the designation of an area. Certainly, if I were the leader of the local council—I have held such a position—I would want to see it widely advertised in local newspapers and perhaps even in the council's own

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news outlets, newspapers and newsletters. It is obviously in the interests of law enforcement and compliance that everyone knows exactly where they stand.
Perhaps I may turn to the points made by the noble Lord, Lord Lester, in his very helpful contribution. In my earlier comments when I looked at the particular amendment I said that obviously these matters would be further addressed by regulations to be made under Clause 13(4). Those statutory instruments will be subject to parliamentary scrutiny. That will in part satisfy one of the noble Lord's concerns; that your Lordships' House and another place will have the opportunity to ensure that in debating these matters it is made plain to the local authorities that when they are deciding whether to designate a particular place they will need to be aware, as the Joint Committee said in its recommendations in paragraph 20, first,
"of the need for evidence of a current threat which makes the designation of that place appropriate and necessary";
and, secondly,
"of the need to take particular note of evidence about the frequency of occasions of alcohol-related disorder or crime in the area over the period of six months starting before the decision is taken".
In all those circumstances the local authority will want to be—to use my favourite word—"proportionate" in its approach.
I can confirm that Clause 13(2) requires the local authority to be satisfied that there is a history of nuisance or annoyance to the public associated with alcohol consumption. The regulations will require careful consultation with the police, the local authorities and others. No doubt locally they will have to consult with the local licensed victuallers' association, pub owners, managers and so on. I hope that with those assurances— picking up on the important points made to my honourable friend Charles Clarke in another place on this matter and the points made at the committee—we have satisfied any residual human rights concerns. Having answered those points and the point raised by the noble Baroness, I trust that your Lordships and the noble Baroness will not press the amendments.
Baroness Buscombe: I thank the Minister for his response. While there are some areas that I would have liked to have pushed further, I accept what he has said today. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 35 not moved.]
Clause 13 agreed to.
Clauses 14 to 16 agreed to.
[Amendment No. 36 not moved.]
Clause 17 [Closure of certain licensed premises due to disorder or disturbance]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 37:
Page 9, line 12, after "or' insert "and related to"
The noble Lord said: We now move into the next group of clauses regarding the closure of pubs and other licensed premises by the police in cases of disorder. These are unlike powers we have previously discussed in a number of senses. Not least, these are essentially short-term closures in response to disorder as opposed to the designation of a public place for at least a matter of months, if not more or less for ever. Therefore, there is a different character to these clauses.
The Bill sets out three instances where pubs may be closed: first, where there is likely to be disorder; secondly, where there is disorder; and, thirdly—this is a slightly different category—where there is disturbance through excessive noise. I shall come back to the noise point when we come to the next group of amendments.
The power to allow the police to stop a person doing business when he does not want to stop is a draconian one. Of course, when there is disorder, either in the pub or in the area round about, publicans may wish to close voluntarily. Quite a number of businesses in London are closed today because of the expected disturbances and no doubt more have closed in the course of the day. But those are voluntary closures where the businesses in question decide that it is better for them, in the light of what is expected to happen, to close. We all respect that. However, the proposed power is not of that character. This is the police forcing the business to close because of disorder even though it does not wish to do so, with obvious effects on the business itself, the owners and proprietors of the business and also the staff and the customers of the licensed premises.
We therefore thought it right to give some consideration to the precise nature of the provisions. In paragraphs (a) and (b) of new Section 179A(1) the Bill refers to the closure being necessary in the interests of public safety. In Amendment No. 37 we suggest that it might be better if the power were attached to disorder involving the premises in question. In Amendments Nos. 38 and 39 we are asking whether closing the pub will really help. If the police are to force someone to shut his business, it seems right that consideration should be given to the fact that closing the pub will help with the matter. The Bill refers to disorder "in the vicinity", which is a vague term. The Bill as drafted concerns only present disorder or future expected disorder. It does not concern past disorder in an area or in particular premises. We are dealing essentially with a short-term power.
The other amendments in the group concern the appeal that can follow to the licensing justices. If the police initially close the business, that is their decision and is, comparatively speaking, short-term. They can then go to the licensing justices to seek to ensure that the closure persists for a while. Amendment No. 39C seeks to ensure that if the matter comes before the justices the publican will have the opportunity to be heard on the issue of the closure and whether it should be allowed to continue. That seems only fair. Amendment No. 39B suggests that, in order to permit the publican to have that opportunity, he should be given at least three hours' notice. That is not wry long,

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but we are talking, after all, about a short-term situation and a short-term renewal of the closure order.
The other three amendments concern the way in which the licensing justices are to pursue their role in this instance. During the previous debate, my noble friend Lord Windlesham referred to the fact that the role of magistrates in these matters is longstanding and respected; but not for much longer it seems. We read rumours that tomorrow the Government are to publish a document stating that they have now decided to do away with the powers of licensing justices and give them to local authorities. If that is so, all these clauses will need to be changed, even though we have not yet passed them, in order to institute some other system of appeal to local authorities. It would be helpful if the Minister could tell us more about that as it clearly bears on the Bill. It is a pity to be passing legislation that will be made redundant almost as soon as we have passed it. But there we are. That seems to be the position we are in.
Incidentally, the proposals apparently seem likely to suggest that licensed premises could apply to be open around the clock. That would have profound effects and could make these clauses and the powers contained in them much more important, not least the powers relating to noise, to which I shall return in a later debate. At the moment, late night licences are extremely difficult to obtain from the licensing justices. Those who obtain such licences feel that they must behave extremely well so as not to lose them. In the West End of London, there has been considerable investment in such premises. That investment has benefited from the fact that the licences have been quite difficult to obtain. That has also been an important factor in cleaning up the West End. Those holding the licences feel nervous, given their rarity value and their important investment value.
If that increase in the number of hours were to happen, the clauses could become all the more important, which makes it all the more necessary that we consider the wording of the tough powers that we are being asked to give to the police. I beg to move.
4 p.m.
Lord Bassam of Brighton: This is a large group of amendments. I shall try to deal with each of the amendments carefully in turn. Perhaps I may begin with Amendment No. 37. The Government do not believe that a restriction of this nature is appropriate. The police should not be prevented from taking effective action to protect the public from possible injury in cases where the closure of premises is necessary to defuse the threat of disorder, irrespective of the cause of that trouble.
The amendment may be prompted by a concern that a closure order could be made merely because there was a threat of disorder in the vicinity of the premises, even though the potential disorder was entirely unrelated to those premises and outside the control of a licensee. However, I hope to persuade the noble Lord
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that that is a groundless fear. An order closing premises under the new Section 179A could be made only if the closure is necessary in the interests of public safety. There is, therefore, already a causal link between the closure and the disorder. In other words, any likely disorder would inevitably create the threat to public safety, and closure of the premises must be necessary—let me emphasise "necessary"—in the interests of public safety. It follows that the closure of those premises must impact on the threat caused by the likely disorder. In consequence, the pub and the disorder must be connected, and because of that I would argue that Amendment No. 37 is not necessary.
I shall turn now to Amendments Nos. 38 and 39. This closure power has been designed generally so that the police may use it only if the disorder on or in the vicinity of the premises causes a threat of possible injury to members of the public and it is necessary, in the interests of public safety, to close that particular premises. We consider that the form of words used already sets a high threshold which must be met before a closure order can be made. But the effect of this amendment would be to make the threshold even harder to meet. Under those circumstances, closure would be possible only if the police officer believed that the disorder would in fact be encouraged or aggravated by the premises remaining open.
It would not be appropriate to limit this power—which would be the effect of these amendments—to situations where the closure of the premises would depend on whether the disorder would continue or be aggravated without weight being given as to whether the safety of the public, including innocent customers, would be affected. For those reasons, I do not feel able to support these two amendments.
Amendments Nos. 39B and 39C were proposed in another place and were debated quite fully. They reflect anxieties in the licensed trade that there are no procedures set down on the face of the Bill which require that the licensee should be notified of the hearing before the relevant justices or that they should have a right to make representations to the court on the issue of closure. However, again, we feel that the amendments are not necessary.
The relevant justices at the initial hearing will operate according to normal magistrates' courts procedures and in accordance with human rights law. I am confident that the licensee or manager served with a closure order will be notified by the court about the time and place of the hearing. They will have the right to appear before the justices, if that is what they wish to do, to be legally represented and, most importantly, to make legal representations.
Our concern has been that, in the interests of all, these proceedings should be expedited as quickly as possible. That is why a single justice will suffice and why the best and swiftest means of notifying the licensee has been left to the court to decide. This allows the court the maximum flexibility. It will cut down the need for any police extensions and put the matter in the hands of the justices as swiftly as possible.

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I believe that this is entirely in the best interests of the licensed trade. New Section 179F(5) is a failsafe device intended to allow the Secretary of State to make regulations on procedural matters if any justifiable concerns arise about the practices adopted by the courts or if the courts themselves consider that they need additional and exceptional procedures to be set down. However, I do not expect such regulations to be needed. As I have said, I am confident that the courts will establish just and fair proceedings in this context. I would therefore suggest that these two amendments should not be pressed.
In our view, Amendment No. 39D would have a very imprecise and confusing effect. Section 188 of the 1964 Act enables the police, where riot or tumult is anticipated in an area, to seek an order from local justices closing licensed premises within the area where the riot or tumult is expected for any period of time that the justices think fit. These powers can be used to deal only with especially serious instances in which widespread disorder is anticipated.
Section 188 orders could be for any length of time and not necessarily to the next licensing sessions. It is by no means clear to us that the licensing justices acting at the next licensing sessions could overturn such an order. Such orders should not be made save for the period in which the riot or tumult is expected, so how should this relate to closures, which focus on excessive noise and disturbance and thus have little or nothing to do with disorder?
Finally, there is no system of appeal enshrined in the 1964 Act which addresses orders made under Section 188, but there is a system of appeals set out in Section 179G against decisions made by the relevant justices under Section 179B. We feel strongly that the amendment would be a recipe for confusion by attempting to overlay one set of specific court powers on others in a way which was never intended by the original legislators and which deal with quite different matters.
An order can be made only by the relevant justices under Section 179B(3)(b) if they have considered the issues set out in Section 179B(4)(a) or (b). These set out specific tests which make it clear that closure should be necessary in the interests of public safety or should be necessary to ensure that no disturbance is or is likely to be caused to the public by excessive noise. The power is limited by having force only until the licensing justices consider the matter, and any order made may be appealed. This is a tightly drawn section which extends the court's powers only to the extent necessary to protect the public. For those reasons, we feel that it is important that it should be both clear and precise.
Amendment No. 40 would restrict the relevant justices, at the first stage of scrutiny of the police closure order, to making an order which relates only to the opening or closing of the affected premises. We believe that the restriction imposed by this amendment is not appropriate. The justices should have the discretion, as part of the options available to them in subsection (3) of Section 179B, not only to decide whether the premises should be closed or reopened,
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but also to impose other supplementary conditions if they decide that certain measures can be taken by the licensee to prevent the disorder or disturbance from occurring in the future.
Amendment No. 41 would introduce a form of words which is less precise than the existing version. The purpose of subsection (4) is to set out the factors to be considered by the justices in ordering the premises to be closed or to remain so. As presently drafted, the words at the start of subsection (4) make it clear that the conditions for closure should be considered only when the justices are considering whether to keep the premises closed. We believe that our current version is more precise and, again, we think that the amendment would be inappropriate.
As regards Amendment No. 44B, in cases where the relevant justices decide to keep the premises closed, I understand the concerns being expressed among those in the licensed trade that the revocation hearing before the justices should follow as quickly as possible. However, there is good reason for a minimum gap of 14 days.
First, under Section 179E(4), the licensing justices must give notice seven days before the commencement of the licensing sessions concerned of the grounds on which they propose to revoke the licence or of their reasons for attaching any conditions to it. Thus the licensing justices must have time to give initial consideration to the matter and then give seven days' notice.
It is important to emphasise that this is in part to ensure fairness to the licensee by allowing his or her legal representatives time to prepare a case defending their position. It should also be understood that a revocation hearing will not focus only on the single incident which might have led to the serving of a closure order. The hearing will need to examine the full licensing history relating to the premises over a period of perhaps up to three years, or since it was last renewed or granted. The chief executive to the licensing justices will have to prepare those records and, of course, the police will need to prepare their material on the premises over that time frame.
In those circumstances, balance is required. We would argue that 14 days is a sensible period, while being sufficiently speedy to ensure fairness to the licensee, whose business may be losing income.
Finally, let me emphasise that the relevant justices have authority to keep the premises closed during this period only if they consider it necessary in the interests of public safety or to prevent further disturbance to the public. For those reasons, I hope that Amendment No. 44 will not be pressed.
The noble Lord raised one or two more general issues in relation to licensing and possible forthcoming announcements. We are likely to announce our view on licensing reform in the future. The Home Secretary has been considering responses to the White Paper. His announcement will include a decision as to whether control of liquor licensing should be given to local authorities or to magistrates. I can say no more than that. Many of these matters were flagged up

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carefully in the White Paper and I am afraid that the Committee will have to await future announcements. I am sure that Members will wait with baited breath.
Lord Cope of Berkeley: I certainly shall not hold my breath until we get these announcements; they have been some months in arriving. I noticed that they are still described by the Minister as "possible forthcoming announcements". Quite frankly, it is not satisfactory that we should be altering all this detail in the licensing laws when much of the basis on which it rests—notably the licensing justices—is likely to be removed within a few months.
Collectively, in Parliament we do a great deal of fiddling about with legislation. If we passed less legislation less frequently—legislation which was more connected with itself—it would be to the benefit of the country. However, that is an observation which is not immediately related to these amendments, although they will be very much affected by what is likely to be announced. As usual, Parliament is in the position at the moment where all that has happened is that we have read it in the newspapers. No doubt we shall have more authoritative announcements in due course.
In relation to Amendments Nos. 39B and 39C, the Minister was reassuring about the procedures to be followed. In the light of the decisions in Pepper v. Hart, his statement that the pub and the disorder must be connected seems to achieve much of what we were trying to achieve in the earlier amendments in this group.
As I said, these are quite draconian powers. One can think of some pubs which are never likely to be affected by them and others which may be. I remember that many years ago the Craddock Arms was the first pub I ever went into. That pub is unlikely to be affected by these provisions. It may he that others share that distinction, but I can think of a few others that will be affected. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 and 39 not moved.]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 39A:
Page 9, line 20, at end insert—
"() A closure order may only he made on the grounds specified in subsection (1)(c) if the senior police officer has given notice to the licensee that he intends to make the order, and the licensee has failed to take appropriate action to quell the disturbance."
The noble Lord said: The amendment brings me to the third of the three reasons why a policeman may make a closure order on a pub temporarily under these powers; that is, because a disturbance is being caused to the public by excessive noise from the premises themselves. Clearly, this is directly related to the licensed premises in question and to the noise obviously emitted from those premises. It is related to the pub and the people within the pub who are creating the disturbance.
Again, the power that the police have to close it is quite fierce. This modest amendment suggests that, when it is a question of a closure on noise grounds, the police must have told the licensee that they intended to make such an order and must have given him a period in which to quell the disturbance, in which to put his own house in order. It is always better if the licensee and his staff can deal with the matter rather than having the police intervene. If the police intervene, it weakens the authority of the licensee for the future in some respects. It is better if he or she is able to deal with the situation, hence our suggestion in this modest amendment that a warning should be given and that the licensee should have an opportunity to quell the disturbance. I beg to move.
4.15 p.m.
Lord Bassam of Brighton: If the noble Lord, Lord Cope, lets me know where the Craddock Arms is, at the conclusion of these deliberations on licensing matters I shall happily ensure that a pint is drawn at my expense. I should love to be able to take the noble Lord to my own first watering hole but, sadly, the village has suffered two pub closures—one of which is the Red Lion—and so I cannot make the invitation in return.
The amendment would inevitably mean that the public would be exposed to a longer period of disturbance before the police could take action. Although well intentioned in spirit, in practice it would mean that the police must first visit the premises and warn the licensee about excessive noise. The police would then have to wait for some unspecified period—there is nothing in the amendment that sets out how long they would have to wait—during which time the licensee would make his attempt to eradicate the disturbance.
Licensees are well aware of their responsibilities to their neighbours and of the requirements of the Environmental Protection Act 1990 and the Noise Act 1996 not to create excessive noise nuisance. Where the noise nuisance is the result of equipment such as music amplifiers, it can be seized. But there is a gap in the law where noise is caused by people. There is usually a long gap before action can be taken to end the nuisance, and residents who simply want a peaceful night's sleep often have to endure these problems for a very long time indeed.
The purpose of Section 179A(1)(c) is to produce an instant solution. Building in delay is simply not sensible. I have no doubt that the police will, in practice, give licensees warnings and opportunities to reduce noise levels rather than embroil themselves in the protracted court proceedings described in the remainder of Clause 17. However, they must, in our view, have the power to move swiftly to end serious disturbances to the general public. For those reasons we feel that we must resist the amendment.
Lord Cope of Berkeley: The location of the Craddock Arms is a very exclusive piece of

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information; it is not shared by all that many people. I should have to take advice before passing it on more widely in case it should lead to a disturbance.
I take the Minister's point about delay in quelling the noise. We deliberately did not suggest any period of time in the amendment, which would have left it open for the police to say, "We will give you five minutes to quell the disturbance", or whatever period they felt appropriate in the circumstances. I take the Minister's point and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39B to 41 not moved.]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 41A:
Page 11, line 16, after "a" insert "single"
The noble Lord said: We move on now to the part of the Bill which deals with what happens at the end of the 24 hours. I explained that the intention is—in the case of either disorder or noise—that the police should close a business for 24 hours only in response to an immediate difficulty. But the Bill provides that the closure can be extended. Under the Bill, the police can go on closing premises, day after day after day, for a long period of time until the justices are brought into the situation and a longer term decision can be taken.
I believe that, generally speaking, the disorder will have blown over in a day or two, or even more quickly if it is related to the pub and the pub is shut. The likelihood is that it will he over in a matter of minutes when people have had time to disperse—unless the closure makes the situation more difficult in which case it may continue for an hour or two. The chances of the disorder continuing for a number of days seem remote and in such a case the justices have power to deal with it.
We therefore suggest that the police should be able to put the pub out of business for 24 hours initially, as suggested by the Bill, and for only one extension period. The same point is covered by both amendments. The proposal does not mean that the pub has to reopen after 48 hours, because the powers of the justices exist; but it limits slightly the draconian nature of the police powers. I beg to move.
Lord Bassam of Brighton: Proposed new Section 179C permits the responsible senior police officer to extend a closure order for up to 24 hours in the circumstances described on an unlimited number of occasions. However, under proposed new Section 179B(1) the senior police officer is under a duty to apply to the relevant justices as soon as is reasonably practicable after the coming into force of a closure order for them to consider it or any extension. Similarly, under proposed new Section 179B(2) the relevant justices are under a duty to consider the matter as soon as is reasonably practicable. The fact that one justice will suffice gives real flexibility to move at speed. So the occasions on which the police will need to exercise their powers under new Section 179C more than once will be rare, although not impossible.
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We cannot foresee every possible difficulty that might arise for the courts, particularly around national holidays or where, for example, a justice who has undertaken to make himself available falls ill. It would be wrong in circumstances where the police believed that the premises being open constituted a danger to public safety if they could not act to continue the closure pending efforts by the courts to overcome their difficulties.
We can well understand the anxiety of the licensed trade that the police might use their powers to extend closure orders repeatedly without court involvement, but that simply will not happen. I am also aware that many in the trade do not realise that when an order for the extension of a closure is made, the police must meet the same tests as apply when they make a closure order initially. This is no simple right to extend the order. The tests which the senior police officer must meet in proposed new Section 179C do not represent a simple hurdle, and the duties on the police and the justices will ensure that the matter proceeds speedily to a resolution. We must, however, allow for exceptional circumstances, and the amendments must be resisted on that basis.
Lord Cope of Berkeley: The Minister has explained the Government's position clearly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 41B not moved.]
The Deputy Chairman of Committees (Baroness Lockwood): I must point out to the Committee that if Amendment No. 42 is agreed to, I cannot call Amendment No. 43 under the pre-emption rule.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 42:
Page 15, leave out lines 7 to 28.
The noble Lord said: It is suggested that with this amendment we should discuss Amendment No. 43 and also Amendment No. 44, which deals with a slightly separate point.
Amendments Nos. 42 and 43 relate to the fact that under the provision in proposed new Section 179I the police are to be exempt from liability for damages. I made the point at the beginning of our debate on this group of amendments that we are giving the police a very strong power. It will have considerable effects on a business and on the employees of that business if it is closed for a length of time. Even if the closure lasts only a day, that period of time is still important; if it continues for a number of days the matter becomes progressively more important.
The fact that in no circumstances can the police—an individual officer, the chief constable or the police generally—be held responsible for any of the financial consequences of the closure offers tremendous protection for the police but tremendous exposure, as it were, for the licensed trade. Amendment No. 43 merely suggests that if the closure has been made in "bad faith", as suggested in the Bill, the possibility of claims for damages might arise. I am not quite sure

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what "bad faith" means in practical terms in law. We suggest the addition of the words, "disproportionate use of force". We are talking about a time when there is trouble in an area and when damage can be caused if the police use force disproportionately. It seems to me that it should at least be possible to award damages against the police and in favour of the person to whom the damage has been done.
Amendment No. 44 deals with an unrelated point, but it is convenient to discuss it under this grouping. Proposed new Section 179J concerns offences by a body corporate and makes clear that where an offence has been committed by a body corporate the directors, managers, secretaries and other officers can be held to be liable and can, if necessary, be punished: that is, if the act has been committed with their consent or connivance or is a result of their neglect. It is a small drafting point; however, it seems to us that a wilful omission on the part of a director or other person might also give rise to a potential claim. That is the provision that Amendment No. 44 attempts to insert. I beg to move.
Lord Bassam of Brighton: We believe that the police should be able to use the closure power in good faith in the interests of public safety and the community generally without fear of claims for compensation for any commercial or other monetary losses resulting from a closure. However, under the relevant provisions, this immunity would not cover cases where the police acted in bad faith or where their action was found to be unlawful under the Human Rights Act. So it is a limited immunity, which is not without precedent. A similar immunity was granted by Parliament to the Financial Services Authority under the Financial Services Act 2000.
Prior to introducing this provision, the closure powers were discussed carefully with the police service. Senior police officers were concerned that officers might hesitate to use the powers if they felt that they could become embroiled in legal action to recover losses. It would be quite wrong for there to be hesitation where public protection is an issue. Such fears could defeat the object of this clause; namely, giving the police an option to take quick action in appropriate cases to protect the public.
Turning to Amendment No. 43, the use of disproportionate force by the police would be covered by the existing condition contained in subsection (3)(b) of proposed new Section 179I: that the immunity does not apply to actions which are unlawful under Section 6(1) of the Human Rights Act. This provides that it is unlawful for a public authority to act in a way which is incompatible with a convention right. In any circumstances where the police used excessive or unnecessary force when exercising the closure power under this clause, they would, almost by definition, be breaching an individual's right to the peaceful enjoyment of his possessions under Article 1 of Protocol 1 of the European Convention on Human Rights. For that reason, we do not believe that this amendment is either necessary or required.
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As regards Amendment No. 44, we believe that the existing provision in new Section 179J of the 1964 Act—namely, that the designated officer would be liable if he were at fault because of "connivance" or "neglect"—is sufficient to cover cases where that person had wilfully failed to act. The wording of new Section 179J is widely used in other statutes. I believe that it is well understood by the courts. Provisions relating to offences by bodies corporate in substantially identical terms appear in, for example, Section 273 of the Transport Act 2000, Section 400 of the Financial Services and Markets Act 2000 and Section 39 of the Vehicles (Crime) Act 2001, as well as in Clause 26 of this Bill. Using different wording to achieve essentially the same ends would merely throw doubt upon those other provisions. For those reasons, we believe that the amendment is unnecessary. Therefore, with those explanations, I hope that the noble Lord will feel able to withdraw all of his amendments.
4.30 p.m.
Lord Lester of Herne Hill: I have a certain sympathy with this amendment, although I believe that the problem it seeks to explore is probably dealt with, as the Minister indicated, in a very complicated way. Perhaps I may briefly explain my difficulties about this exemption from liability as it stands.
As is well known, there is a general problem in English administrative law. If a public authority—whether the police or anyone else—abuses its powers in a way that causes direct economic or financial loss, English law, unlike the law of most other civilised countries, especially those in Europe, gives no right for damages. We have a very strange principle in English law in general. The remedy is to obtain a "stop it" order; in other words, an order quashing a decision or preventing a similar decision from being taken again. But the luckless victim who suffers financial or economic loss (in this case in respect of property), does not have a right under English administrative law to compensation. Some judges have pointed out what unfair results that situation can create, and how the remedies seem to be the wrong way round. Very often, compensation matters more than the draconian remedy of, say, a quashing order.
The exemption from damages in proceedings for judicial review—which is what I have just been talking about—or for the tort of negligence, or even for misfeasance in public office—which is, basically, bad faith in exercising one's public powers—would, on the face of it, be a very startling exemption. Certainly, if it went beyond property, it would be most likely to breach the right of access to courts under the European human rights convention. Indeed, there are cases such as Osman, Tinnelly and another now pending before the European Court, which are all concerned with that issue.
However, the Government have obviously been advised that they cannot keep such a broad exemption. Therefore, as I understand it, they have clawed back

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the position from a blanket exemption by means of subsection (3) of new Section 1791, which says that the exemption will not apply,
"if the act or omission is shown to have been in bad faith",
or if the immunity would,
"prevent an award of damages made in respect of an act or omission on the ground",
that it would breach the Human Rights Act 1998.
As I understand it, it works as follows. There is a right to property in Article 1 of Protocol 1 to the Human Rights Act. If there were an unnecessary interference with that right to property by the exercise of the closure powers, there would a breach of the human rights convention and of Section 6 of the Human Rights Act. It would mean that the police officer would have acted tortiously in breach of the Section 6 duty, and a direct action could be brought against his superior for damages under Section 7 of the Human Rights Act. Although the Chancellor of the Exchequer has been successful in ensuring that only mean damages awards will normally be given, and has sought to do so in the way that the Human Rights Act is drafted—he is probably right in having done that—there will, nevertheless, still be the right to recover compensation for an abuse of power involving an interference with the fundamental rights and enjoyment of one's property.
If it had been left to me, I certainly should not have drafted such a provision in this way because one would have to go through the process that I just outlined and unpick it—deconstruct it—to understand what is really happening. I see that the Minister is not indicating any disagreement with me in this respect. Therefore, if my understanding is correct and that is roughly the position, I am satisfied that the immunity will not go wider than is necessary in this particular case.
The Minister referred to the immunity given to the Financial Services Authority under a separate statute. I believe that I advised at the time that that immunity might well go too far if it were abused. However, that provision does not have the same kind of built-in safeguards as those provided by this Bill. I hope that I have given a helpful, not obfuscating, explanation.
Lord Cope of Berkeley: As far as I am concerned, that explanation is entirely helpful. It is difficult to come to this House on any day without learning something. Indeed, one sometimes learns a good deal; for example, that "bad faith" turns out to be misfeasance. The net result of both the Minister's and the noble Lord's speech is that I wish to seek leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 44A:
Page 16, line 5, after "to" insert "open and"
The noble Lord said: This amendment relates to a small point concerning the definition of "a manager". The Bill says that a manager is someone who can
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"close the premises". However, many people can close premises; it seems to me that the manager is the person who can open them. That is exactly what the amendment suggests. I beg to move.
Lord Bassam of Brighton: I shall try to make my response almost as brief as the noble Lord's introduction. Licensed premises are legitimate business concerns. So long as their licence is in force and no closure order or extension of it exists, they may open within permitted hours as set out in the Licensing Act 1964. The only authority relevant to Clause 17 is the authority to close the premises, making the person an "appropriate person" on whom to serve closure orders. Therefore, it is wholly unnecessary to re-define "a manager" in the manner suggested in the amendment. I trust that the noble Lord will feel able to withdraw his amendment.
Lord Cope of Berkeley: I thought that the amendment contained a useful suggestion. Nevertheless, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 44B not moved.]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 44C:
Page 16, line 26, leave out ", or is supplied with,"
The noble Lord said: This is another modest looking amendment, but one which would have slightly more consequences. The position under the Bill is that if a pub or other premises are closed, the manager, or any member of the staff, cannot supply either food or drink in the normal way; in other words, beer, and so on, cannot be sold on the premises.
Nevertheless, the manager and his family may want to continue to eat there if the closure goes on for any length of time. It is in order under the Bill for the manager to supply his family with food that would otherwise have been sold in the restaurant. However, the Bill does not allow the manager to supply food to anyone else. The manager may wish to give a policeman a cup of tea. He may have people in his household to whom he is not related; who are not members of his family but nevertheless are in his household. For example, he may have a partner rather than a wife. I do not believe that a partner would count as a member of his family.
As I say, other people may live in the household who are not related to the manager. There is also the question of his staff. Under the Bill the manager cannot feed any staff who remain on the premises in the hope that they will be reopened. My amendment seeks to allow the manager to continue to supply—but not to sell—any item of food or drink to the persons I have mentioned. I do not propose that he should be allowed to sell those items or continue to run his business. However, the amendment would allow him to give a cup of tea to a policeman. I beg to move.
4.45 p.m.
Lord Bassam of Brighton: I hope that the landlord would be able to give a policeman a cup of tea. I am

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not unsympathetic to the intention behind the amendment. However, at present the relevant premises would be considered to be open if any person other than the licensee or the manager or their family entered on to the premises and purchased or was supplied with any item of food or drink or any item normally sold there. The amendment would enable a licensee or manager of the premises to supply food and drink but not sell it.
That is not at all unreasonable. It is, after all, commercial trading that is at issue. I am sure that the noble Lord intends that that licensee should be able to supply personal friends with food and drink or a "copper with a cuppa", as it were, perhaps in a private part of the premises, and perhaps supply a cup of tea to a builder or electrician or other workmen working on the premises. However, sadly, I believe that the amendment would drive a hole through the enforcement provisions included in the clause.
Four people eating a quiet meal together in the private residential areas of the premises may be acceptable, but what about 30 people drinking in the bar behind locked doors? The police would have to decide whether those on the premises had been given their drinks for free. Those present could have paid either by ticket prior to entry or in the normal way across the bar. How could the police acquire the necessary evidence if customers and licensee conspired to tell the same tale? How could the police prove that that was trade rather than a private party?
To make this amendment would, therefore, create a serious loophole in Clause 17. The licensee could continue trading behind closed doors after service of a closure order in the way in which so-called "lock-ins" occur now. For those reasons I must resist the amendment.
In enforcing this aspect of the closure arrangements, we shall need to rely on the good sense and experience of the police and the courts. A quiet dinner party or drink in the residential parts of the premises are unlikely to attract police attention and, if they did, I am sure that the police in their usual pragmatic and no nonsense fashion would be unlikely to pursue a prosecution. As the White Paper, Time for Reform, published last year, indicated, we shall issue guidance to the police on the use of the new powers. I am confident that we shall be able to address the question of when premises should be regarded as being open when we issue that guidance. I hope that with those reassurances the noble Lord will feel able to withdraw the amendment.
The Earl of Sandwich: Before the Minister sits down, is it not the case that under present licensing laws the "after hours" rules, as it were, extend beyond the family of the licensee to all his known friends? Could not that be included in the amendment?
Lord Bassam of Brighton: I suppose that it could. However, as I said, we must rely on the good sense of
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the police. That is what we are trying to foster and encourage through the guidance. The noble Earl makes a valid point to consider in those circumstances.
Lord Cope of Berkeley: I have every confidence in the good sense of the police the vast majority of the time. However, it is not satisfactory that the Government are, as I understand the Minister's reply, making it strictly speaking illegal for the landlord to supply food or drink to someone who is not a member of his family even if that person lives on the premises and even if it is unlikely that the police will prosecute a landlord in such circumstances. That does not seem to me a satisfactory way in which to leave the law. We shall need to give further consideration to the matter between now and whatever subsequent stages of the Bill take place. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Clause 18 agreed to.
Clause 19 [Closure notices]:
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 45:
Page 17, line 3, after "being.' insert ", or within the last 24 hours have been,"
The noble Lord said: In moving Amendment No. 45, I wish to speak also to Amendments Nos. 47 to 51 and 53. The effect of these amendments is to clarify that the power contained in Clause 19 to issue closure notices can be used against premises which, to the satisfaction of the police or the local authority, have been used for the unlicensed sale of intoxicating liquor at some time within the previous 24 hours.
As presently drafted, the provisions in the relevant subsections of Clause 19 could be interpreted as meaning that a closure notice could be issued only if the use of the premises for the unlicensed sale of intoxicating liquor had continued up until the serving of that notice. This restricted effect was not intended, especially as it would not cover cases where the use is not continuing when the police or the local authority wish to serve their notice, although it has occurred in the previous 24 hours and is more than likely to recur at a later date.
The purpose of the measures in Clauses 19 to 28 is to allow action to be taken against particular premises where there is either continuing offending or previous offending within the past 24 hours. These amendments, therefore, make technical changes which confirm that action may be taken where the illegal use has taken place within a previous period of 24 hours. I beg to move.
On Question, amendment agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 46:
Page 17, line 4, after "liquor" insert "or the supply or sale or offering to supply or sell any controlled drug"
The noble Baroness said: In moving Amendment No. 46, I wish to speak also to Amendment No. 52. Clause 19 of the Bill deals with the closure of unlicensed premises. Our amendment is intended to

587
use this important opportunity to tackle an insidious, all too common problem whereby such premises are used for the illegal supply and sale of drugs. That the premises are unlicensed for the sale of intoxicating liquor may not by itself be the problem.
My honourable friend in another place, the Member for Surrey Heath, Mr Nick Hawkins MP, gave the sad example of Leah Betts to illustrate that premises may be unlicensed and yet supply and sell the illegal drug Ecstasy. In that case the effects were made far worse, and in the case of Leah Betts fatal, by the drinking of water. In other words, it does not matter whether the premises are licensed for alcohol. If drugs are present, there is an inherent problem.
Given the tough powers in the Bill to close unlicensed premises, we believe that it does not make sense to leave this amendment out of the Bill. When a similar amendment was debated in another place the Minister argued that it would apply in a small number of cases. But will the Minister now tell us whether that is an adequate reason for not supporting it? Murder does not take place on a day-by-day basis but we still see fit to legislate against it.
Amendment No. 52 is a simple amendment. It removes the discretionary power of local authorities and police to cancel a closure notice and instead makes it a responsibility of the local authority and/or the police to cancel a closure notice when the circumstances permit. I beg to move.
Lord Bassam of Brighton: As the noble Baroness said, Amendment No. 46 was put forward by the Opposition during the Bill's passage in another place. As explained then by my honourable friend the Parliamentary Secretary to the Lord Chancellor's Department, the provisions in Clauses 19 to 28 address a separate and different problem from that presented by drugs dens or crack houses. There are several reasons why Clause 19 is not the right approach to this aspect of the drugs problem.
First, unlike the sale of drugs, the sale of alcohol in this country is legal if it is licensed or permitted by some of the exceptions made under licensing law. The problem with unlicensed drinking dens is that innocent tourists and other members of the public will have no idea that the sale of alcohol in these clubs is illegal. The clubs are more often than not confused with legitimate outlets. Innocent people are often attracted to the clubs by people in the street brazenly advertising the premises. The advertising is often blatant because the owner or operator, sometimes living abroad, does not fear police action in arresting his staff or confiscating the alcohol on the premises. The profits are so high that the premises will often be restaffed and restocked within days. The Bill provides a solution by ensuring that the premises cannot be used once a closure order has been made by the courts.
Premises being used for the sale of drugs are unlikely to advertise their existence and as such do not attract innocent members of the public or innocent tourists. People frequenting such premises know they are acting criminally and taking the very serious risk of involving
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themselves with drugs—perhaps even in the tragic circumstances to which the noble Baroness drew attention. Drugs dens are very often in residential accommodation, which raises quite different issues from drinking dens. We shall come to that point later. If premises are closed down and boarded up, there may be residents to re-house. The property will very often be owned by the local authority, a housing association or an innocent landlord who knows very little of his tenants' activities. Major criminals controlling drugs distribution networks will rarely own, lease or rent premises at which drugs are sold and used in this way. So the amendment misses its target, and would potentially hurt innocent parties who own or control the properties rather than the people making money out of others' misery.
When the police move in and arrest those working in these illegal drinking dens, it is often impossible to track down the owner of the property to take action against him. So he profits while his staff are prosecuted. These provisions give the police and local authority a means of protecting the public and preventing the absentee owner or organiser from generating more profit.
Clauses 19 to 28 are a measured response to a very particular problem which the police indicate is focused on the West End of London. The solution in the Bill is equally sharply targeted and perhaps the only comparable situation is that in connection with some illegal sex establishments.
Amendment No. 52 is clearly well intended but again, I think, misunderstands the purpose that the closure notice serves. As explained on government amendments to Clause 19, the unlawful use of these premises as drinking dens will almost certainly be brought to an abrupt halt when raided by the police. The staff would be arrested and the stock seized. However, experience shows that the criminals behind these enterprises will restaff and restock the premises and at a point in the future resume the illegal use of the premises.
The closure notice will therefore almost invariably be served when illegal trading on the premises has ceased. The closure notice does not close the premises down. It puts the operators on notice that if the illegal trade resumes, the police or the local authority will seek a closure order from the courts. So if the police or local authority were required to cancel a closure notice if the circumstances described in subsections (1) and (2) no longer applied, the entire scheme would be undermined. As I said, at the point in time when any closure notice is served the circumstances described in subsections (1) and (2) will have ended. The task is to prevent them resuming.
I hope that the noble Baroness will not feel it necessary to press the amendment.
Baroness Buscombe: I thank the Minister for his response. I accept what he said. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 47 to 51:
Page 17, line 8, after "being insert ", or within the last 24 hours have been."
Page 17, line 13, leave out "being"
Page 17, line 13, leave out from "premises" to end of line 16.
Page 17, line 27, leave out "being"
Page 17, line 36, at end insert "or (as the case may be) does not recur"
On Question, amendments agreed to.
[Amendment No. 52 not moved.]
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 53:
Page 18, line 2, leave out "being"
On Question, amendment agreed to.
Clause 19, as amended, agreed to.
Clauses 20 and 21 agreed to.
Clause 22 [Termination of closure orders by constable or local authority]:
[Amendments Nos. 54 and 55 not moved.]
Clause 22 agreed to.
Clauses 23 to 28 agreed to.
Clause 29 [Confiscation of alcohol containers from young persons]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 56:
Page 23, line 15, at end insert "or any item containing such liquor"
The noble Lord said: In moving the amendment, I speak also to Amendment No. 57. The amendments relate to the Confiscation of Alcohol (Young Persons) Act 1997, commonly known as the "Bob Spink Act" because he was the Member of Parliament, and one of my honourable friends, who introduced the Bill in another place.
The purpose of the clause is narrow, as is the objective of the amendment. It is to ensure that if alcohol is confiscated it includes the container in which it is found. Amendment No. 57 raises the question of whether a sealed container should also be confiscated. If a youth is drinking from a can of beer and has another in his pocket, the police can confiscate the can from which he is drinking but not the one in his pocket. That is not a satisfactory arrangement.
The clause gets round what I think of as "The Merchant of Venice" point. Part of the action of that Shakespearean play concerns whether, when taking flesh, one is permitted to take blood at the same time. How to take the alcohol without taking away the tin in which it is contained is a similar dilemma m some respects. I am taking the issue a little further and suggesting that the tin in the offender's pocket—which he has not yet started, but will the moment the policeman turns round—should also be subject to confiscation, under the terms of the Act. I beg to move.
5 p.m.
Lord Bassam of Brighton: The Home Office briefing does not deal with "The Merchant of Venice". I understand the problem that the noble Lord
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mentioned, but he may acknowledge that we also see a problem. We have some sympathy with the purpose behind the amendments, which would amend the Confiscation of Alcohol (Young Persons) Act 1997 to give the police a power to confiscate alcohol in a sealed or open container from those under 18 in any public place. However, that would create a distinction between the powers of the police in respect of young people and adults. Clause 13 explicitly precludes the confiscation of sealed containers from adults.
The Government are keen on measures that will help to reduce the problem of under-age drinking, but we are concerned that the extension of police powers to confiscate alcohol in sealed containers may be disproportionate to the purpose of the clauses and of the original Act, both of which focus police powers for confiscation on circumstances in which there is a reasonable suspicion that the alcohol will be consumed by a person under 18 or by any person in a designated public place under Clause 12.
The police will reasonably have such a suspicion if the alcohol container has been opened, but the case becomes less clear if it is sealed. We feel that there would be disputes about whether the alcohol was to be consumed in the public place or to be lawfully consumed elsewhere. Clause 12 will enable the police to prevent public drinking and to move individuals on. The confiscation powers in the 1997 Act apply to persons over 18 if the officer has a suspicion that the alcohol will be consumed by a person under 18. The amendments would allow for the confiscation of sealed containers in those circumstances. That would inevitably lead to more disputes about the individual's intentions and would probably be open to challenge.
For those reasons, the Government do not support the amendments and consider that the clause should stand as drafted to achieve consistency between the powers provided by the Bill, which will apply to juveniles and adults alike, and those provided by the 1997 Act, which apply only to those under 18.
I accept that that does not entirely cover the noble Lord's point, which he has made well, but giving a power to confiscate closed or sealed containers would probably create a bigger problem than he envisages.
Lord Cope of Berkeley: This time I was going to rely on the good sense of the police to decide whether to confiscate a sealed container, whereas earlier the Minister was trying to do so. I would not want Clauses 29 and 12 to be inconsistent and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57 not moved.]
Clause 29 agreed to.
Clause 30 [Sale of intoxicating liquor to a person under eighteen]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 58:
Page 23, line 29, after "for" insert "written"
The noble Lord said: We now move to the question of establishing the age of young people who seek to buy alcohol in a pub or other licensed premises. The idea behind the amendments is that some form of proof of age card is the best way forward. We all know that it is sometimes difficult to tell the age of a young person and to be sure whether they are entitled to buy liquor. That problem arises in both directions. As well as under-age people attempting to buy liquor, sometimes young people who are of an age to buy liquor may be thought to look younger than they are and may be refused a drink, which can be embarrassing for them, given the sensitivity of young people to these matters.
Proof of age cards are one method of getting round that problem. They have been widely used unofficially in recent years. They seem to be extremely helpful. A number of them are in fairly wide circulation, including the brewers' "Validate UK" card and the Portman Group's "Prove It!" card, while others circulate on a local basis.
Having a large number of different cards circulating makes it more difficult for the publican or his staff to rely on them. The suggestion incorporated in the amendments, particularly Amendment No. 62, is that the Secretary of State should do his best to select ones that he thinks are satisfactory and well run. Bar staff could then rely on those cards.
We are not suggesting a national identity card or anything compulsory. The cards are currently voluntary, but they are widely carried. Those of the appropriate age feel that it is an advantage to carry them and they are a great assistance to bar staff and a great help in enforcing the particularly difficult but important distinction that the law attempts to make between young persons of a similar age.
The amendments are not necessarily perfectly drafted. I am not relying on that. However, it would be valuable to hear the Government's thinking on proof of age cards. I think that such cards, on a voluntary basis, have a contribution to make and that it would be better made if the cards had a more official character on the general lines suggested in the amendments. I beg to move.
The Earl of Sandwich: I support the noble Lord, Lord Cope, in his reasonable amendments. Perhaps the Minister can explain how the Government have departed from previous thinking on the subject.
Lord Davies of Oldham: This is an interesting debate. I recognise the tentative way in which the noble Lord, Lord Cope, expressed his view of the validity of the amendments. I shall not rest too heavily on the precision of the drafting. I shall deal with the main issues in the amendments, which were also tabled by the Opposition in another place.
Clause 30 imposes a duty on persons selling intoxicating liquor in licensed premises to take positive steps to ensure that they do not sell to those under age. The intention is to place on all staff in on-licensed and off-licensed premises an obligation to
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satisfy themselves, before selling or serving alcohol, that customers are not under the age of 18. In appropriate cases, they would be required to ask young customers to provide proof of age.
The clause amends the defence available in Section 169A(2) of the Licensing Act 1964 to a person who is charged with the offence of selling intoxicating liquor to a person under 18 in licensed premises. Currently, the defence in that section would be effective if the defendant could prove that he had no reason to suspect that the customer was under the age of 18. That is a relatively low obligation which does not require the taking of positive steps to check the age of the customer.
Clause 30(1) increases the obligation so that the defendant would have to prove, first, that he believed that the customer was not under 18, and, secondly, that either he had taken all reasonable steps to establish the customer's age or that no one could reasonably have suspected from the customer's appearance that he was under 18.
Under the first part of new Section 169A(2)(b), the defendant will be deemed to have taken "all reasonable steps" if he asked the customer for evidence of his age. However, if the prosecution proves that the evidence of age was such that no reasonable person would have been convinced by it, the defence would fail.
The effect of the second part of new Section 169A(2)(b) is that staff in licensed premises will not be under an obligation to ask for proof of age if the appearance of the customer is such that no one could reasonably have suspected that he was under 18. That means, for example, that I would not expect my local publican to challenge me when I enter his bar. It also provides a defence to bona fide staff who are confronted with such an abnormally old-looking 17 year-old that no one would reasonably have suspected that he or she was under age.
However, we recognise that the closer an individual is to the age of 18 the finer the judgments will become. A judgment as to whether the defendant's view was reasonable would be made in an objective test in accordance with what a reasonable person would have thought in the same situation. That is an important change. An existing subjective test becomes an objective one.
Amendment No. 58 would affect the defence which staff in licensed premises may put forward if charged with selling alcohol to a minor. I hope that my pronunciation is accurate and that people recognise that I am talking about those under the age of 18 and not "miners"; otherwise, I should be in serious trouble with many people whom I know very well.
The "all reasonable steps" defence would be viable if the defendant had asked the minor for written evidence of his age. This could, for example, cover a birth certificate, which is written evidence but is far from proof of age. "Proof of age" necessarily implies three things: a photograph to match the face of the purchaser; a date of birth on the same document; and a document of some credibility bearing the first two items.

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Therefore, the evidence has several components, not all of which, as in the case of photographs, could be described as "written". In those circumstances, I hope that the noble Lord will recognise why his amendment, as it stands, cannot be accepted.
Amendments Nos. 59 and 62 seek to introduce a system whereby the Secretary of State would prescribe either one or several proof of age cards which, if produced by the customer, could then be used as evidence to support the "all reasonable steps" defence. The Secretary of State cannot sensibly prescribe certain existing proof of age cards in the way that the amendment suggests.
The reason is one of practicality. Tens of millions of tourists visit this country every year and many, of course, are youngsters. Some will want to eat, drink and enjoy themselves in our pubs and restaurants and buy from our off-licences. If we prescribe certain cards, an 18 year-old Canadian who dutifully presents a perfectly valid Canadian national identity card may well be refused service. While we strongly support many of the existing proof of age card schemes, such as the "Prove It", "Validate" and "Citizen Card" schemes, it would simply not be practical to prescribe every form of ID, photo-driving licence and proof of age card from every country that might be acceptable.
As the clause stands, it becomes a matter for the courts to decide on the evidence whether the proof of age seen was such that it would have deceived a reasonable person. In those circumstances, I hope that the noble Lord will not press these three amendments.
We consider Amendment No. 60, which concerns obvious forgeries, to be unnecessary. The current wording of Clause 30 ensures that a person will be treated as having taken all necessary steps only if the evidence produced would have convinced a reasonable person. That is a clear and objective test which the courts will understand fully. In cases where the purported evidence clearly did not belong to the young person producing it, or where the evidence was an obvious forgery, the defence would fail.
In any event, forgery is not the main problem in relation to these cards. Many existing cards are produced to a very high standard and are not easily forged. The main problem concerns children who use lost, stolen and borrowed cards. Very often, the faces do not match the cards and the users rely on retailers being casual and inattentive. The clause will certainly penalise those who are casual or inattentive about the law on sales to minors. However, those who accept their responsibilities properly have nothing to fear from these provisions. I hope that the noble Lord will not press the amendment.
Amendment No. 61 presupposes that the Secretary of State should issue guidance about proof of age cards. The Intoxicating Liquor (Sales to Persons under Eighteen) Act 1923 first prohibited the sale to or purchase by persons under the age of 18 of alcohol. That measure has been with us for a very long time, and we are not placing an entirely new duty on licensees. The position should be relatively simple. If a
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licensee has any doubt whatever about the age of a potential purchaser, then no sale should be made. It really is as simple as that. Indeed, the British Institute of Innkeeping provides that advice in its courses for licensees who seek national qualifications.
The ultimate responsibility cannot be abdicated by the licensing trade. The judgment must be made by staff in licensed premises who are presented with a potential customer bearing a card purportedly showing his or her age. They must decide whether the card is genuine, forged or wrongfully held. Ultimately, they must decide whether the purchaser is at least 18 years of age and, if they are not completely confident, they should refuse to sell. Therefore, again, I hope that this amendment will not be pressed.
I mention in general terms that cards which have validity and which are recognised and encouraged can be strengthened. In that respect, I believe that the Government will prove one dimension to be helpful. The DfEE "Connexions Card" for 16 to 19 year-olds who are in education may have a role to play in supplementing the existing voluntary cards, photo-driving licences and passports currently in use because they clearly bear the age of the young person concerned. Those cards, bearing people's ages, will become available to, and be in the possession of, a large number of young people over the age of 18 who are entitled to drink as well as, of course, being available to those under that age.
I emphasise that we recognise the points that have been made by the Opposition in proposing these amendments. However, we are unable to accept them because the issues are already covered by the Bill as drafted.
5.15 p.m.
Lord Thomas of Gresford: I hope that members of the Committee will permit me to say that I consider these provisions to be daft. The proposal, as the Minister said, involves an objective test relating to the belief of the licensee or bar staff who are charged with serving intoxicating liquor to a person who is under 18. How on earth is a court to determine objectively that nobody could reasonably have suspected from a customer's appearance that he or she was under 18? Is it assumed that that person will be summoned to court and asked to dress as he or she was on the particular night and, if a young lady is involved, will she be asked to make herself up in the same way so that the court can come to an objective view of the licensee's belief? The proposal would cause an awful lot of trouble if it ever came to court. At least the opposition amendments propose a way of enabling a court to ascertain whether what has been done by the person serving the customer is correct. To that degree I support the amendment.
Lord Cope of Berkeley: I am grateful for the support that the ideas in the amendment have received. I am disappointed by the Minister's rather dismissive attitude to the possibility of proof of age cards. As the noble Lord, Lord Thomas, hinted just now, the powers

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of make-up are remarkable—I have observed that occasionally in the course of my life! That makes it extremely difficult for bar staff.
I recognise that the Government are taking a short step towards my amendment with the proposal involving the Connexions card. However, that by definition would apply only to those in education and it will, as it were, be a substitute in this regard for a student union card.
The Minister's response was not at all satisfactory. We shall certainly return to this matter not necessarily in relation to this Bill but in the course of further discussions about the way in which to progress licensing laws. Proof of age cards may not be perfect, but they are the best approach in this difficult area. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 59 to 62 not moved.]
Clause 30 agreed to.
Clause 31 agreed to.
Clause 32 [Drunkenness or disorder on licensed premises]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 63:
Page 24, leave out lines 31 to 35.
The noble Lord said: I find proposed new Section 172A(2) extraordinary and, frankly, rather offensive. It requires that if someone is drunk in a pub or other licensed premises and the bar staff fail to control him, and if the bar staff finish up in court, the bar staff somehow have to prove that they "took all reasonable steps" to prevent drunkenness in the premises. The burden of proof is reversed. The prosecution will not have to prove that the bar staff permitted drunkenness; that will be fairly obvious if the drunkenness was had enough.
Somehow or other the bar staff have to prove that they took all reasonable steps. That is not a sensible reversal of the burden of proof. It will be extremely difficult for bar staff to live up to this burden of proof in court. We are dealing, after all, with a pub, club or other licensed premises in which by definition there are drunken people—or at least one drunken person. However, when there is one drunken person there is often more than one. Bar staff attempt to deal with such situations. Explaining all of that later in court and imposing the reverse burden of proof on the poor bar staff—whether the manager or the more junior staff, including perhaps a barmaid and others who were serving—will be extremely difficult.
This is a very onerous provision. Bar staff, managers and others have a duty, which we all accept, to do their best to prevent drunkenness and to take proper action. They do so in the interests of having a well-run pub. It is not to a pub's advantage if there are many completely drunk people making life difficult for other customers, who are trying to enjoy a quiet drink. It is the duty of staff—and, to a certain extent, customers—to do their best to prevent drunkenness; that is also in
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the interests of all staff. Reversing the burden of proof and attempting to give the necessary explanations later in court will be very difficult. I beg to move.
Lord Lester of Herne Hill: The Joint Committee on Human Rights considered Clause 32. Our views on it appear in paragraphs 31 and 32 of our report. I shall sum up our position.
We sympathised with what the Minister told us; namely, that,
"the nature of the licensed industry has changed significantly over a period, away from a large number of individual licensees and publicans to a number of major organisations who employ and retain staff to run their pubs and clubs, and so on. We think that there needs to be absolute clarity in the legal rights and responsibilities. There should not be an argument that so and so was not the licensee and therefore has no responsibility".
We also welcomed the Minister's commitment to legal certainty. We said:
"We consider that certainty could be further enhanced by revisiting the definition of the offence".
We referred to the archaic language that is used in that context and to the phrase,
"any violent quarrelsome or riotous conduct".
Although "quarrelsome conduct" might not disfigure the proceedings of this House, one can imagine heated arguments in a public house between political opponents being defined in that way.
We said that such language was,
"not self-evidently in tune with the requirements of legal certainly in an era of human rights. We consider that the clause engages the right of patrons of bars to freedom of expression under Article 10"
of the convention. We observed:
"In the course of his oral evidence to the Committee, the Minister accepted that imposing a legal duty on bar staff to remove a person for quarrelsome conduct could indirectly interfere with that person's right to freedom of expression, and that even the word 'drunkenness' might not be as certain as had originally been thought, despite having been in",
old legislation. We said:
"We are therefore glad to learn that the Government arc reviewing the whole of liquor licensing law".
We recognised that one could not expect that to be done simply in this Bill. We expressed the,
"hope that the opportunity will be taken to ensure that adequate legal certainty and proportionality can be achieved in the definition of criminal offences. In the meantime, it is important"—
this deals with the point raised by the noble Lord, Lord Cope—
"that bar staff are not unfairly treated, and in particular that clause 32 is operated in a way which respects the Government's intention, as expressed to us, that expulsion from licensed premises will be reserved for seriously disruptive or threatening individuals"'.
Elsewhere in our report, we argued that the classic problem of the reverse onus of proof did not arise. I hope that that adequately summarises our views and that the Minister will respond to those concerns.
5.30 p.m.
Lord Renton: I warmly support what my noble friend Lord Cope of Berkeley said in moving this

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amendment. We must be careful to ensure that the burden of proof remains on the prosecution. To say that, merely because one person gets drunk or seems to be drunk, the burden of proof shifts and the onus is upon the barman or proprietor to prove that everything had been done to prevent that drunkenness, is neither feasible nor just. I hope that the Government will consider this point carefully.
Lord Carlisle of Bucklow: I had intended to mention on clause stand part those matters raised by the noble Lord, Lord Lester, on this amendment, though with respect to the noble Lord they go slightly wider than this amendment.
I should like the Minister who is to reply—I am sure with his normal courtesy to this Chamber—to give us a clear and simple definition of "quarrelsome behaviour". That is the test which apparently this clause lays down of a criminal offence potentially to be committed by someone who is helping to hand out drinks in a busy public house.
The clause states:
"A relevant person shall not permit … quarrelsome … conduct to take place in licensed premises".
If the bar person contravenes that provision he shall be liable to a fine. It is therefore vitally important that we should be able to tell that person, working in that public house, what is meant by "quarrelsome conduct".
I see the noble Lord, Lord Goldsmith, sitting on the other side of the Chamber. If we enter a public house and choose to have a disagreement about our political affiliations, are we indulging in quarrelsome conduct or are we merely having an argument? Where is the line to be drawn? One person's quarrelsome conduct may be an expression of opinion with which somebody else totally agrees. Before we make phrases like "quarrelsome conduct" criminal offences, it is important that the Minister gives a clear definition to the courts to enable them to say whether or not a person is committing an offence if he allows the behaviour to occur.
Earl Russell: I extend a warm welcome to the report of the human rights committee. It is an extremely valuable innovation for this House. It will save a lot of time and unnecessary argument. It will add a lot of weight to necessary argument and, in cases such as this, it will narrow a potential ramified argument down to a definable and useful point. It is a welcome development. I congratulate my noble friend, the Government and all those concerned on the setting up of the committee.
But the problem of the clause is a little wider, as the noble Lord, Lord Carlisle of Bucklow, suggested. What are reasonable steps for a person in authority in a bar may depend on how careless that person is of their own safety. Authority over a bar, like authority over a bus, in the last resort depends on consent. Authority stretched too far may destroy consent.
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I am told this used to be a maxim in the American army: never give an order which is not going to be obeyed. I hope the Minister will concede, with the case of Pepper v. Hart in mind, that the requirement of reasonableness does not require anything further. Also, can the Minister tell me of any bar, in any country, in any century, where quarrelsome conduct has not taken place?
Lord Goldsmith: This debate ranges wide and I rise not to pick a quarrel with the noble Lord, Lord Carlisle of Bucklow, but to pick an argument with him.
Two points have been raised, but in relation to both of them what is relevant is what this clause is doing in the context in which it arises. As I understand it, the present licensing law imposes upon licensees of premises the obligation,
"not to permit drunkenness or any violent, quarrelsome or riotous conduct".
The clause adds another category of person to that obligation, that category being those who are not the licensee but who cannot be said to be the agent of the licensee. Case law demonstrates that certain people—managers and employees—may not be agents of the licensee and therefore, if drunkenness is permitted, without this clause nobody would be responsible.
It is right that the Committee should consider the language. For myself, I feel that in the context of,
"violent, quarrelsome or riotous conduct",
it is clear what is meant. Most people would recognise "quarrelsome conduct" when they see it in the context of,
"violent, quarrelsome or riotous conduct".
But my honourable friend Mr Charles Clarke told us that there is an intention to review the legislation in relation to licensing. That was an important statement to make. That is the right time at which to review and revisit all of these questions, otherwise the difficulty would be that it would not be sufficient to put this new prohibition on one category in specific words; it would be necessary to go back to the existing legislation and try to adjust that.
That is the point the noble Lord, Lord Carlisle, raises on this amendment, but by way of an observation on clause stand part. I do not know the answer to the question but I hope that my noble friend will be able to say whether the reverse onus which appears in proposed Section 172A(2) is in fact the same provision as that which applies at the moment in relation to licensees. If that is right, it means that no change is taking place.
In any event I make this observation. The onus is not on the defendant to demonstrate all of the requirements. The words state:
"If … it is proved that any person was drunk".
So the onus of proving that the person was drunk, which is the start, remains entirely on the prosecution. The only proof required from the defendant is that the defendant took reasonable steps to prevent that drunkenness. What does that mean? I am sure that the noble Earl is right in saying that "reasonable" means

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"reasonable"; it does not mean all possible steps. In the circumstances of someone who is found drunk in a pub, there is a limit to the number of steps that can be taken—not to serve him any more drink when he appears to be drunk and to try to get him to leave. I do not regard it as a great obligation to prove that. If the clause had gone so far as to say that if anyone is found in a pub the licensee has to prove that they are not drunk, that would be going too far. As it stands, this is on the right side of the line and therefore I do not support the amendment.
Lord Bassam of Brighton: A number of useful points have been made. The Government's perspective is quite clear. We take the view that Section 172 is a necessary modernisation of the 1964 Act. I can confirm that the interpretation of my noble friend Lord Goldsmith is correct; that is, that the reversed onus on bar staff is the same as that currently on licensees. His interpretation is entirely accurate and it makes sense that that is the case.
We are arguing for modernisation of the Act in this section. There is an irony which I think Members of the Committee have clearly spotted; that is, we are seeking to put into legislation wording which dates back to 1872. It has certainly been the case since 1872 that it is an offence for a licensee to permit drunkenness or any violent, quarrelsome or riotous conduct on his premises. This act of modernisation is reliant upon some rather old and quaint language. Nevertheless it is modernisation which makes things proportionate and right in the circumstances.
It is the duty of a licensee to preserve good order on the premises. That duty goes back to the days of Henry III. I was not around at that time but I can believe that that was the case and am prepared to take it as given. The offence is currently contained in Section 172 of the 1964 Act. The existing Section 174 of that Act gives the licensee power to refuse to admit drunks and the disorderly or to expel them from the premises.
Modern operating practice in pubs and other licensed premises often involves a manager operating the premises and the licensee being generally absent. It is therefore important that managers should be under the same duty as any licensee to prevent drunkenness, preserve good order and have the same powers to expel those who are drunk and cause problems for good and orderly customers. New Section 172A would do exactly that. Drunkenness in licensed premises must be deterred. Those responsible for running licensed premises have known for several centuries that the law puts them under a duty not to permit drunkenness. Levels of public drunkenness in licensed premises are a significant public concern.
We argue that Amendment No. 63 would create an inconsistency between the rights of any manager and the rights of any licence holder operating a pub in similar circumstances. The burden on the prosecution in trying virtually identical offences would differ between one person and another. That would be wholly unfair, improper, inconsistent and plainly wrong.
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There may be circumstances and concerns that a drunk could be present without the licensee's or manager's knowledge. However, because the offence is one of permitting drunkenness—I am sure that the Committee will agree that permission implies a degree of knowledge—a licensee or manager could riot be convicted of this offence unless a drunk had been present in his premises and the licensee or manager had known about it.
A natural defence to mount when prosecuted under these sections is that all reasonable steps were taken to prevent the drunkenness. But it must be remembered that under Section 174 of the 1964 Act the licensee or manager has powers to expel the offending drunk from the premises and the right to require police assistance to that end. The police are under a statutory duty to provide the necessary assistance. That is well-established law which the courts well understand.
If the prosecution is able to establish beyond reasonable doubt that a drunk or drunks were present on the licensed premises, the burden shifts to the defence, who must prove, on balance of probability, that they had taken all reasonable steps to prevent the drunk's presence. In our view that is not an unreasonable or unfair proposition. As I have said, the courts have a great deal of experience in dealing with the issues arising.
The noble Earl, Lord Russell, was right to commend the Joint Committee on Human Rights for its work in this field. Had he been here earlier—I am sure he was detained on important business—he would have heard the noble Lord, Lord Lester, put exactly that argument, and valuably so. As I said earlier, we are grateful to the joint committee for its observations on this piece of legislation. It is a valuable innovation which has been well received. That committee observed that we are reviewing the whole of our liquor licensing laws. I would argue that in those circumstances we should perhaps consider modernisation, not just of the powers and duties but also the wording of the legislation. That is the proper place for that to be done, not in this piece of legislation, which is wide-ranging in its intent.
The noble Earl, Lord Russell, said that there is probably not a pub in the world where there has not been a quarrel of some sort, but we are not attempting to restrict people's rights to disputation. We are attempting to focus on the "quarrelsome" argument, which is associated with drunkenness and violence. I rely on the Oxford English Dictionary for an interpretation. It states that the word quarrelsome means "inclined to quarrel". It goes further with the word "quarrel" and includes this definition, which is plain:
"contend violently, break off friendly relations, become inimicable or hostile".
It is in those terms that this piece of legislation and this wording are understood.
5.45 p.m.
Lord Lester of Herne Hill: I thank the Minister for giving way. If one takes a certain current dispute in a

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particular political party between its leader and two of its members, I fully accept that the quarrelsome nature of what is happening there is not akin to violence, and if they all met in a public house—
Lord Bassam of Brighton: If it might lead to violence it is best to do it over a drink.
Lord Lester of Herne Hill: Does the Minister agree—I think he does—with the noble Lord, Lord Goldsmith, that the word "quarrelsome" takes its colour, if I can use that word in the context of what I have just said, from the other words and has an association of violence? Therefore, when the Joint Committee on Human Rights urges that in the interval before the licensing law is amended, the prosecutorial function—which is not the responsibility of the Government—but nevertheless the Government's intention would be that it would be reserved for seriously disruptive or threatening individuals where drunkenness or violence was associated with the quarrelsome behaviour and nothing less than that. I believe that is the question which my noble friend Lord Russell also raised.
Lord Bassam of Brighton: The noble Lord has been most helpful. It is in precisely those terms that we were thinking. I believe that the word needs to be understood in context. That is our case and that is why we are satisfied with what we have set out in the legislation. It is for all those reasons that we feel the need to resist the amendment.
Lord Renton: I believe that the Minister has overlooked a variation in human capacities. The trouble is that no two people are quite the same so far as concerns the effect upon them of alcohol. A man who has just had one pint of beer may ask for another. Judging by his behaviour then, it may be quite reasonable to give him another pint. However, because of his own physical limitation, the second pint may make him drunk. Is the barman to be prosecuted and the burden of proof upon him to be shifted simply because he did not anticipate the possibility that he might be a man who got drunk on a second pint?
Those are the sort of circumstances which unfortunately the Government must anticipate and which are difficult. If there is doubt in such matters, surely the burden of proof should remain on the prosecution and not be shifted to an innocent barman.
Lord Cope of Berkeley: The discussion has been widened from the amendment. Perhaps I may address the wider point. It came as a slight surprise to me to realise that pubs were not supposed to be quarrelsome places. I have met a good few people in my time who go to the pub for a good argument. That is part of the attraction of the place. I suspect that it is also part of the attraction of people—
Lord Bassam of Brighton: The noble Lord is certainly enhancing the quality of his experience in the Craddock Arms every time he gets up and speaks about public houses.
Lord Cope of Berkeley: That is another matter. I have never met anyone there who went for a good argument. There are other places where some people go for a good argument. Some people try to get elected to Parliament because they like a good argument but others find it easier just to go to the pub. Therefore, it is curious that the provision appears in the legislation.
We are, however, told that a review is forthcoming and that the wording will be considered. That brings me back to the amendment, which also needs consideration. The Minister's principal defence was given to him by the noble Lord, Lord Goldsmith: that is, the reverse onus of proof is the same in the Bill as regards the bar staff as it is in existing legislation as regards the licensee. I take that point on board. However, it was not much help to say that the burden of proof is only partly reversed. Someone has to be drunk in the first place and the bar staff do not enter into proof of whether the individual was drunk.
I believe that the reversing of the onus of proof needs to be rethought in the context of rethinking licensing law. Clearly, it is sensible that the same burden should apply to the licensee and to the staff.
Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. I want to ask him to clarify one issue. Is it not the case that under the clause as it stands the burden is on the prosecution always to prove that the relevant person has not knowingly permitted drunkenness or any violent conduct? That is the ultimate burden of proof on the prosecution.
However, as is often the case with criminal offences, the burden is then shared. While that ultimate burden remains to a criminal standard of certainty, if circumstances are such that it is fair to require the person to demonstrate that he took reasonable steps he can do so. Is that not the way it works? Is that not fairly common in the criminal law as a shared burden? Therefore, the provision is not an extreme classic reverse onus of proof.
Lord Cope of Berkeley: I accept that it is not a total reversal of proof because the onus of proving that someone was drunk remains with the prosecution. As regards whether the relevant person permitted the drunkenness, he must go through the business of proving that he took all reasonable steps. The burden of proving that lies with him.
It is sensible that the same should be required to be proved as regards the licensee, the manager and staff. Therefore, I hope that when considering the wording as a result of the review that element will be taken into account in addition to our discussion relating to the word "quarrelsome" and so forth.
Finally, I sincerely welcome the report of the Joint Committee on Human Rights, which was introduced into the discussion after I had spoken. The timing of the report was raised. Of course it was inconvenient to another place that it was not published until after its consideration of the Bill. However, the committee is new and is only just getting going but it must make arrangements to report as often as possible and in time for both Houses to consider its recommendations.

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I was interested to see that the committee in its report drew attention to the fact that it is important that bar staff are not unfairly treated. That seems to me to go exactly to the point of the amendment. It is put in a relatively modest way—not in a direct way— but that is in accordance with the self-denying ordinance referred to by the noble Lord, Lord Lester. He pointed out that the committee had done its best to confine itself to human rights points and others to which it was particularly directed, not to wider policy points. That is entirely proper. Its duty is to look at the obligations under the different statutes, conventions and so forth and ascertain whether the Bill is in accordance with them. That it did.
However, it took the opportunity to refer to the point made indirectly in my amendment. But given the fact that the matter is to be reviewed, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 agreed to.
Clause 33 [Power to make travel restriction orders]:
The Deputy Chairman of Committees (Baroness Gardner of Parkes): If Amendment No. 64 is agreed to, I cannot call Amendment No. 64A because of pre-emption.
Baroness Buscombe Baroness Buscombe moved Amendment No. 64:
Page 25, line 39, leave out subsection (1).
The noble Baroness said: Amendment No. 64 has been tabled to reflect the concerns of the Joint Committee on Human Rights in its first report. In that report, the Joint Committee sets out its concerns regarding Clause 33(1) and Clause 35(3). Chapter 3 of Part 1 of the Bill sets out provisions for dealing with crime and disorder. Clause 33 gives powers to the courts via the Secretary of State to make travel restriction orders for certain offenders who have committed serious offences.
While we would want to support that power if used sensibly and if targeted properly, we are concerned that the Government have acted outside their authority under the terms of the interpretation of the Human Rights Act and/or our international treaty obligations.
The Joint Committee stated:
"We therefore draw the attention of each House to these clauses, which we do not believe to be compatible as they stand with the international obligations of the United Kingdom under the ICCPR [the International Covenant on Civil and Political Rights]. The provisions should make it clear that travel restriction orders are to be made only when they serve a legitimate aim under Article 12.3 of the ICCPR, and are proportionate to that aim. The provision should also make it clear that orders are to be suspended or revoked when they no longer serve a legitimate aim or are not, for the time being, proportionate to such a legitimate aim".
We consider that Clause 33(1) and Clause 35(3) should be amended in order to secure compliance with the ICCPR.
The ICCPR provides that:
"Everyone shall be free to leave any country, including his own"
Obviously, a passport is needed to exercise this right. As I understand it, the concerns raised by the committee are in relation to the discretionary nature of the order as well as the essence of the order; any impact that might have on the family of the offender; and the offender's right to a family life.
In making an order under Clause 33, the committee believed that future intent and likely foreign travel should be expressly stated. We could spend many hours discussing the merits of all of these matters, the needs to balance rights with obligations and the need to balance public protection and individual liberty, but that must be for another day. However, I have two issues that I want to raise with the Minister.
First, when the Minister made the statement printed on the front of the Bill attesting to the fact that the Bill was compatible with the convention rights, was he aware of any concerns which the Joint Committee might have? Can he tell us what legal advice he took to ensure that his statement was correct and will that advice be published?
Secondly, do the Government agree with the findings of the Joint Committee and what plans do they have to amend the Bill and rectify these possible breaches of our obligations under the International Covenant on Civil and Political Rights? I beg to move.
6 p.m.
Lord Lester of Herne Hill: I rise to speak to Amendments Nos. 64A, 66A and 67A which are grouped with this amendment. The noble Baroness, Lady Buscombe, is incorrect in one very important respect. Although we are glad that the noble Baroness referred to the report of the Select Committee on Human Rights, if she reads it carefully she will see that there is no question of any breach of the European Convention on Human Rights or the Human Rights Act, which gives direct effect to convention rights The problem is more subtle but just as important; namely, there is a possible breach of the International Covenant on Civil and Political Rights, which is a different international treaty that has not been given direct effect in our courts.
The problem which concerns the committee is that a British judge has no authority to apply the provisions of the international covenant when giving effect to the very wide powers conferred by Chapter 3 of the Bill in imposing travel restrictions on drug trafficking offenders. That is why the amendments in my name and that of my noble friend Lord McNally, to which I have referred, seek to give effect to the Select Committee's observations, not by leaving out the whole of the relevant part of the clause as the noble Baroness's amendment would do, but instead by introducing necessary amendments.
Amendment No. 64 would insert at the end of subsection (1) of Clause 33 the test of proportionality in relation to the power to make a travel restriction order. Amendment No. 66A would do the same thing

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in respect of Clause 35 for the revocation or suspension of a travel restriction order, and Amendment No. 67A would do the same in the appropriate place. In each case the criminal court shall determine,
"whether the order remains appropriate and necessary to protect national security, public order, public health or morals or the rights and freedoms of others".
That is what the international covenant requires. Unless the Government make some such change to the legislation, a serious gap will remain and the domestic courts will not be able to give effect to the covenant rights.
There are additional protocols to the International Convention on Human Rights, in particular the fourth one, which have not yet been signed or ratified by the United Kingdom. If they were ratified and given domestic effect they would incorporate the equivalent of the covenant rights into domestic law. It is precisely because that could not happen at the moment that the Joint Select Committee took a particularly serious view of the gap and wished to draw it to the attention of both Houses. I very much hope that other Members of the Committee who participated will be able to amplify what I have said. I do not deal with the detailed reasoning in the report, which everyone can read for himself or herself.
Lord Carlisle of Bucklow: I have tabled a series of amendments dealing with this part of the Bill in the hope that the Committee will have the opportunity to learn from the Minister the purpose of the proposed new power and how he sees it working in practice. Yesterday in the course of Committee stage my noble friend Lord Cope said that in many ways this measure was a ragbag of a Bill. When one has a Bill which covers, understandably, many different issues and matters, the trouble is that one may possibly introduce, as I suggest is being introduced into this clause, a new power—perhaps a penalty of an important nature—without the Committee having adequate time to consider that which is proposed.
The Committee is considering the proposed power of the court to implement a travel restriction. I looked to see what had been said about it in this Chamber. In the whole of the Second Reading this part of the Bill was covered by one sentence. The Minister said that,
"Clauses 33 to 37 will be an effective tool in restricting the activities of those who deal in drugs".—[Official Report, 2/4/01; col. 656.]
If one looks at the Explanatory Notes, this measure is described as a sentencing option. If one considers the explanation given in answer to the questions posed by the Joint Committee on Human Rights, in general terms it is said that it is a sentencing option which also has preventive intentions.
The proposal in Clause 33 is of major importance. It requires a court when dealing with any case involving drug trafficking, where it imposes a sentence of four years or more, to consider whether it is appropriate for the sentence to include the making of a travel restriction order; and, if it does not consider that it is appropriate, to state its reasons. I believe that that
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implies a presumption that a court when imposing a sentence of four years or more for a drug trafficking offence will think it right, or will be required, to make a travel restriction order.
It has been said by the Home Office that the whole purpose of taking the limit of four years is to distinguish between those which are serious drug trafficking offences and those which are not. Therefore, this new power will be limited to what can be described as serious drug importation or drug trafficking offences. With great respect, I do not believe that to be so. While it is true that four years has always been accepted as the appropriate distinction between short and long-term sentences, the vast majority of cases where people are convicted of importing or supplying Class A drugs are likely to attract a sentence of more than four years' imprisonment.
If one considers the case of Aramah, which the Attorney-General knows well, it has been said that for major cases of importation the appropriate sentence is one of at least 10 years. In that case it was said that seldom would the courts consider a sentence of less than five years for supplying Class A drugs. I declare an interest as a former member of the Court of Appeal of the Channel Islands. The court placed the starting point for dealing in, or the importation of, Class A drugs far above the limit of four years as the dividing line between "serious" and "not serious" as suggested in this Bill. The reality is that in the vast majority of cases which involve either the importation or supply of Class A drugs the courts will be expected to add to the sentences that they pass a travel restriction order. What is that travel restriction order? It is the removal of an individual's passport for a minimum of two years and for an undisclosed maximum, which, presumably, is for life.
At the time of sentencing, on what basis will a court decide that such an order is appropriate? I accept that everything possible which is "an effective tool"—to use the Minister's own phrase—must be done to fight the horror of drug importation and drug supply. I accept that at the moment in this country drugs form a large proportion of serious crime, but we must be clear that that which we are proposing will have some effect.
I ask the Minister—this is clearly relevant, as the noble Lord, Lord Lester, has said, to the human rights issue—is the purpose of the power preventive? If so, it may well be within the international obligations. Or is it meant to be a purely punitive power? As I understand the matter, Mr Clarke has said it is really both.
What happens? A person charged as a courier on a major drugs importation appears before the court. He receives a sentence of six years. That means that he may come out at any time after three years. Let us assume that he serves two-thirds of his sentence and comes out after four years. On what basis is the court at the time of sentencing to decide that it is part of a punishment to require that he is unable to leave the country after he has completed the period of his

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sentence? Personally, I do not like the idea of attempting to impose conditions on an individual's freedom which go beyond the overall period of the sentence imposed by the judge at the time of the hearing which is considered appropriate for the seriousness of the offence.
Suppose we believe it is possible that people may change their minds and may—even on the basis that it was not worth the candle—decide to give up drug trafficking. We say, "Well, you have served your sentence". The man says, "I want to get away from my old associates. The best way is to start a new life elsewhere". Are we going to prevent him from doing so because he is not allowed to leave the country for some unlimited period of years? What if he decides to go straight and he joins a company and is required to work in Europe? Does he have to say, "I am terribly sorry, I can not go and work in Europe because I am still subject, although I have completed my sentence, to a travel restriction order which prevents me from going abroad"?
There are real practical questions that need to be asked and answered as to the intention of the proposal and how it will work in practice. The Minister may say, "But of course there are powers that if a person changes his mind any travel restriction imposed by the judge at the time of the imposition of the sentence can be suspended or removed". But let us be clear; the travel restriction cannot be removed unless the man has served the minimum period of two years beyond the period when he comes out of prison. There is no power for him to go elsewhere in those two years.
So far as concerns suspension, the restriction can only be suspended—it is set out in Clause 35(3)—if in fact there are,
"exceptional circumstances … that justify the suspension on compassionate grounds".
We all know that "exceptional circumstances" is a phrase that has been interpreted very narrowly by the courts. It is difficult to see what would cover the phrase "to allow a person's travel restriction to be suspended on the basis of exceptional circumstances of a compassionate nature". Therefore, there are issues that need to be raised before we pass this new power. Are we satisfied that it is a preventive measure? Is it otherwise merely a punitive one? Is our climate really so bad that it is a penalty to have to stay here after one has completed one's period of imprisonment? If it is merely punitive, what is its effect in practice on someone who may wish genuinely to break away from his previous life? Those are the kind of issues that have not yet been addressed in introducing this power. I apologise to the Committee for speaking too long.
6.15 p.m.
Baroness Mallalieu: I share the anxieties raised by the noble Lord, Lord Carlisle of Bucklow. I, too, am troubled about these provisions. In certain circumstances the ability to make a travel restriction order may have value. But the clauses, as currently drafted, are insufficiently targeted and are likely to have unintended consequences of the kind that the noble Lord has indicated.
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If the purpose of these measures is to prevent further offences, why are they not confined to those involved in importation, or at least offences which have some foreign element? It is quite clear that the definition of "drug trafficking offences" also includes those involved in production and supply in this country— in other words, no foreign element at all—and therefore the removal of the passport need have absolutely no connection with offences committed in the past.
If the intention is purely one of punishment, why is the provision then consigned simply to drug trafficking offences and those who have received sentences of four years? If the removal of the passport is a legitimate punishment for a crime of that nature, presumably there are other offences too of equal gravity which also might enjoy the same sentencing option. I am unhappy for the reason that it is not clear from the way these measures are set out what the Government intend. It is, however, clear that a judge will be required to consider this option and, if he decides that it is not appropriate, to give his reasons why.
If punishment is the intention—we understand that that is part of it—how does that lie with the concept of rehabilitation? The unintended consequences which the noble Lord, Lord Carlisle, has referred to are clear: someone may want to make a new life abroad; someone may want to take legitimate work abroad; or someone may want simply to resume family life which presumably on occasions involves a holiday abroad. None of those situations appears to qualify under the requirement for compassionate grounds before the passport can be restored under Clause 35(3).
Therefore, I ask the Minister to give us some further help about the circumstances in which it is intended that these orders shall be used, and also to allay, if he can, the concerns raised by the noble Lord, Lord Carlisle, and which trouble more than a few Members of the Committee.
Lord Windlesham: There are many novelties in the Bill that bear on the integrity of the criminal process. Was I alone in the Committee when my heart sank when the noble Lord, Lord Bassam, justified some of the earlier changes on the grounds that they were modernisation? The criminal process depends on some enduring principles that should be preserved from the changing fashions of the day. Clause 33 and the clauses that are linked to it are a dangerous oddity. The way that a legal system treats some of the least desirable persons within its jurisdiction is a test of a civilised society. Yet here we have a legislative requirement imposed on a criminal court to add a travel restriction order to any sentence of imprisonment of at least four years in duration for trafficking in Class A drugs.
As such, it is not surprising that the proposal attracted the attention of the Joint Committee on Human Rights. In its first report published only very recently—and not before the House of Commons

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had considered the Bill—the proposal took up three closely printed pages. The Joint Committee on Human Rights stated on page XVII of its report:
"We therefore draw the attention of each House to these clauses, which we do not believe to be compatible as they stand with the international obligations of the United Kingdom under the ICCPR. The provisions should make it clear that travel restriction orders are to be made only when they serve a legitimate aim under Article 12.3 of the ICCPR, and are proportionate to that aim. The provisions should also make it clear that orders are to be suspended or revoked when they no longer serve a legitimate aim or are not, for the time being, proportionate to such a legitimate aim. We consider that clause 33(1) and clause 35(3) should be amended in order to secure compliance with the ICCPR".
The question we must ask in this Committee is whether the Government are proposing to amend Clauses 33 to 37 in response to the concerns expressed by the Joint Committee and in the light of the powerful speeches they have heard in this debate, not least from their own Back Benches in the speech eloquently delivered by the noble Baroness, Lady Mallalieu.
Lord Goldsmith: The report of the Joint Committee has rightly provoked debate about this important and potentially wide power. I start by recognising that one of the most difficult problems faced by any government at the moment is dealing with the scourge of drugs, which are corroding our society and are particularly affecting, it is sad to say, the young. Weapons in the armoury to combat drugs and serious drug offenders are important. None the less, the provisions as they stand give rise to the questions that have been raised from all sides of the Committee.
The noble Lord, Lord Carlisle, put his finger on the point by saying that one has to be clear about the purpose of the provisions. If they are there to prevent further offences—my honourable friend the Minister, Mr Clarke, gave good evidence that there are international connections in important drug offences—the Bill needs to be capable of being applied in that way. If, on the other hand, the purpose is punishment, I look at it as someone who might, as a Recorder, have to exercise these powers. My concern—I look to my noble friend the Minister for assistance—is as follows. If I have taken the view that the right period to restrict the liberty of a defendant, having regard to the offences that he committed, is five, six or seven years—it may be 10 or 12—how do I judge what is the appropriate additional period of restriction of liberty to add? If it appears to me that an extra period of five years of restriction of liberty is appropriate, what does that do to the sentence I had in mind?
That does not mean that the proposed power should not be taken. It means that we should look very carefully at how the power is to be exercised and the way in which it is to be put forward. I recognise that the Joint Committee report has arrived quite late on the Government's desk and that the Government will need some time—I hope that they have had some time—to consider exactly the right way to deal with it. I wish to draw attention to two provisions, the first of which was mentioned by my noble friend Lady
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Mallalieu. The first provision states that if a court does not impose a travel restriction order it must give reasons. Many courts would interpret that as a presumption that a travel restriction order must be imposed in all cases unless there is a good reason for not doing so. I should be grateful to hear from my noble friend the Minister whether that is the intention. The second provision states that there is no power to suspend except in closely circumscribed circumstances, which may not correspond with our international obligations.
Finally, I turn to our international obligations. It is important to recognise that what the committee was concerned with was not a potential breach of the Human Rights Act but of a different international obligation—the international covenant. That has two important consequences. First, it does not make the Bill incompatible in terms of thecompatibility statement signed by the Minister. There is nothing wrong with that statement. It is not affected by this point. Therefore, the noble Lord, Lord Lester, was right, with respect to the noble Baroness, Lady Buscombe, to say that the question she put to the Minister was not an appropriate one in the sense that the answer is that his certificate was perfectly proper.
Secondly, under the Human Rights Act—this point needs to he developed—the courts have an obligation to interpret legislation in a way that is, so far as possible, consistent with our obligations under the European Convention. Therefore, if we pass legislation that is a little vague, we can still rely on the courts to apply it in a way that will be consistent. That obligation does not exist—or does not exist in the same strong form—in relation to other international obligations. The courts will still attempt to construe legislation in a way that is consistent with our international obligations, but it is not as strong an obligation as that which is in the Human Rights Act.
While the fight against drugs is an important government objective, the questions raised in relation to these provisions need to be further examined.
Lord Thomas of Gresford: Perhaps I may speak to Amendments Nos. 65 and 67. I shall merely repeat what has already been so eloquently expressed by the noble Lord, Lord Carlisle, and other speakers, particularly speakers from the Government Benches.
What we are all seeking here is a way in which this power, if granted, can be constrained and limited to appropriate cases. As the noble Baroness, Lady Mallalieu, pointed out, not every case involves a defendant who has been engaged in the international smuggling of drugs. Many defendants come before the courts who have had nothing to do with international drug trafficking, although it is prevalent and is the original source of the drugs.
The amendments that we have put forward are designed to remind the court passing sentence that the purpose is not to punish, but to prevent further criminal activity. That is enshrined in Amendment No. 65. So far as concerns Amendment No. 67, it is impossible for a sentencing court to determine today

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what will be the circumstances of an individual in 10, 15 or 20 years' time; that is, after he has served a long sentence of imprisonment. It may be that during the period of that imprisonment, he has been rehabilitated. He may have attended courses and may come out with an entirely fresh view, wishing now to engage in the ordinary circumstances of family life. That may involve taking a foreign holiday. As the noble Lord, Lord Carlisle, pointed out, he may wish to work abroad. All these are matters which should be taken into account by the court when deciding whether such an order should be lifted at the end of the period of imprisonment.
That is the purpose of the amendments which we have put forward. By and large, we support all that has been said during the course of the debate on this grouping.
6.30 p.m.
Lord Bassam of Brighton: This has been an important discussion. Again, it proves the validity of the work undertaken by the Joint Committee on Human Rights. Certainly some of the points which have been so well developed during the course of this debate are reflected in the report from the committee, as were certain points made in earlier deliberations, although not in quite the same context. These are important matters for our consideration. In working through the group of amendments, I shall attempt to respond to as many of those points as I can.
I shall deal first with Amendment No. 64. It is the Government's clear intention that the travel restriction order should been seen as part of a package and be regarded as an innovative way—football disorder legislation aside—of providing a further sentencing option. It adds to the range of powers made available to the courts to deal with drug trafficking offenders who have been sentenced to a period of imprisonment of four years or more. In other words, it applies to those who have been sentenced for very serious offences. That is an important point.
My noble friend Lord Goldsmith spoke of the scourge of drugs. Indeed this is concerned with the scourge of drugs and addresses the ways in which very serious drugs offences are dealt with. Travel restriction orders would make it much more difficult for drug traffickers to travel overseas. We contend that the application of this part of the sentence would go a long way towards disrupting their activities.
Travel restriction orders are intended as a specific measure to deal with drug traffickers and are not intended to apply to any other offenders. They are a measure targeted specifically on those who traffic in drugs in order to make it more difficult for them to travel overseas, thereby helping to prevent and disrupt drug trafficking.
In relation to Amendment No. 64A, I should like to address the concerns quite properly raised in this Committee and also by the Joint Committee on Human Rights in respect of these clauses. In the case of travel restriction orders, the joint committee finds the Bill as drafted to be incompatible with the United
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Kingdom's obligations under Article 12 of the United Nations International Covenant on Civil and Political Rights. I am grateful to those noble Lords who in a sense added a corrective judgment to the view of the noble Baroness, Lady Buscombe, who quite rightly put her point of view. However, I think that the noble Lord, Lord Lester, and my noble friend Lord Goldsmith were right in their interpretation.
The Government have examined the views of the joint committee carefully; we take them seriously. We do not consider that the Bill's provisions are incompatible with our obligations under the article. Rights such as that set out in Article 12.2 of the covenant,
"Everyone shall be free to leave any country, including his own",
are not absolute under the covenant. That point has been made by many Members of the Committee in the past. Indeed, the noble Lord, Lord Lester, has made the same point in the course of other debates. Article 12.3 confirms that such rights are subject to restrictions provided by law as are necessary to protect, among other things, public order, public health or morals or the rights and freedoms of others.
Countries do have a degree of latitude in determining and developing their social and criminal policies. That much at least is now well established. Travel bans of the kind envisaged in the Bill, which are imposed at a court's discretion in respect of individuals convicted of drug trafficking, are considered to be an appropriate, justifiable and, I would argue, proportionate way of punishing those activities, while at the same time helping to ensure that they are not repeated; namely, that they are prevented.
Lord Lester of Herne Hill: I wonder whether the noble Lord will bear with me if I seek further to clarify the position here? He is quite right to say—the joint committee also pointed this out—that the right to travel is not absolute and this is a question of striking a fair balance between ends and means. However, if he is not willing to accept any of the proposed amendments, can he explain to the Committee how the sentencing judge is to know what are the legitimate aims of the power? Furthermore, where is the direction to the judge which he can use to assess the proportionality of the means to achieve those ends?
If one looks at the relevant clause, is it not the case at the moment that it is literally standard-less; namely, it does not guide the judge either as regards ends or means in the way that is required by the covenant. Is the Minister also aware that in the footnote to the main text of the report, attention was also drawn to the general comments made by the Human Rights Committee, a quasi-judicial body. It explained clearly that the very essence of the right must not be impaired, that the relationship between right and restriction must not be reversed and that the laws authorising the application of the restriction should use precise criteria and may not confer unfettered discretion on those charged with their execution.

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Perhaps I may ask the Minister this question. How on earth can this standard clause be said to comply with the standards required by the International Covenant on Civil and Political Rights?
Lord Bassam of Brighton: I shall refer the noble Lord in part to the draft legislation as it stands. What the court will have to consider is whether in the circumstances it would be appropriate for the sentence imposed in regard to the offence to include the making of a travel restriction order. That is enshrined in subsection (2)(a). In other words, the court will know the circumstances behind the offence. It will have background knowledge of the circumstances which have brought a particular offender before the court. The judge will be able to understand the context in which the conviction and penalty are sought. In those circumstances, the court will have to form a judgment as regards the appropriateness of making such an order.
If it is the case that the trafficker is, as it were, an international operator, drawing part of his strength from being involved in an international web of drug trafficking, I believe that one could argue validly that this order-making power would be appropriate in those circumstances. Clearly if a history is attached to the criminal activity, a reasonable argument could be sustained that it is most appropriate.
Lord Lester of Herne Hill: Obviously this is very important to the Committee. The word "appropriate" goes to the legitimacy of an aim. But the clause does not use the well known word "necessary"; it does not guide the judge on proportionality. Is the Minister saying that the intention behind this clause and other related clauses is that the judge should apply the principle of proportionality to ensure that the power is used only to the extent necessary to meet a pressing social need? If that is the Government's position, will they please reconsider the language of the clause in order to steer the judge in that direction?
Lord Bassam of Brighton: I understand the noble Lord's point and I can see where he is coming from. I would expect a judge to be reasonable—I am sure that most people would expect a judge to be reasonable—and proportionate in his application of that part of the sentence. However, it does not necessarily follow that we need to revisit the wording of the legislation as it is currently drafted.
Lord Goldsmith: When the Minister was giving evidence to the Joint Committee, he was asked about the possibility of guidance to judges. My noble friend may be intending to deal with this. It is mentioned in the first special report of the committee, which is not the same as the report which contains our conclusions. At page 60, question 35, the Minister said in answer to a question from the noble Lord, Lord Lester:
"I agree with your fundamental point which is should there be proper guidance about the inter-relationship between this law and the relevant international documents for judges…I completely
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agree with that and that needs to be the case. If it is helpful to give the commitment to the Committee that I will work with my colleagues and other government departments to achieve that, I am happy to give that commitment this afternoon".
My noble friend may have been going on to deal with that, but some Members of the Committee would like to know where that particular issue has gone. It may at least go some way—perhaps more—to answer the point raised by the noble Lord, Lord Lester, and others in the Committee.
Lord Bassam of Brighton: I am grateful to my noble friend for his intervention. I had marked precisely that point at paragraph 42 in the Joint Committee's report. Clearly, the commitment given by my honourable friend Charles Clarke at the Committee hearing is an important one. There is no doubt that guidance will be paramount in these matters, not least because of the Minister's commitment to ensuring that the relevant international documents for judges on proportionality should be visited and understood and those points met. That was a most helpful intervention and I am most grateful to my noble friend for it. I hope that that answers the point of the noble Lord, Lord Lester.
Lord Thomas of Gresford: Perhaps I may ask a question along similar lines. Is it intended that a judge should be told that in cases which do not have an international element a travel restriction order ought not to be imposed? Or is it the Government's intention that there should be a presumption that the court should make a travel restriction order if it is imposing a sentence of more than four years for drug trafficking, and only in special circumstances—which the judge is required to state—should it not?
Lord Bassam of Brighton: I was coming to that point, which I believe the noble Lord, Lord Carlisle, also raised. I shall deal with it now. There is no presumption that an order should be made. There is an obligation on the court to consider making an order where it convicts of a drug trafficking offence and sentences to four years or more. So it is not a presumption; it is a consideration in those circumstances.
Lord Carlisle of Bucklow: As the noble Lord, Lord Goldsmith, said as well, the very wording at the moment is that if the court determines that an order is not so appropriate it is required to state its reasons for not making a travel restriction order. Those of us who are in practice know that that means there is a presumption that the court is likely to make an order. Is the Minister not prepared at least to look at those words again?
Lord Bassam of Brighton: I thought I was making it plain that there was no presumption; that there should be a consideration at that point. I was about to say that a court should only make an order where it is appropriate in all the circumstances to do so. It is plainly and obviously open to the court not to do so but, in declining to take that option—as I said earlier, it is a sentencing option as a part of a package—it should provide its reasons for not doing so.

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The intervention of the noble Lord, Lord Carlisle, has further prompted me to say that we will, of course, review—as we always do—the finer detail of the wording. If it can be improved in some way I am happy to ensure that it is. I shall need to consider and reflect further on the matter.
Perhaps I may now develop the argument that I was making before the very helpful interventions. I do not believe that anyone would suggest that the rights under Article 12 would override, for example, a prison sentence and that serving prisoners are entitled to travel abroad. A travel restriction order—which forms part of the original sentence and commences on release from custody—is, I think one could argue, a much less severe restriction of personal freedom. In the Government's view, it is a legitimate restriction imposed in accordance with Article 12.3 of the covenant.
I do not believe that adding an extract from Article 12.3 of the covenant—which I think even the best of draftsmen would concede is, of necessity, expressed in very general terms—would assist a court in deciding whether or not it was appropriate to make a travel restriction order in all the circumstances of the individual case it was considering.
Amendment No. 65 would require the courts to have regard to whether a travel restriction order would be likely to deter re-offending. The Government intend that such orders should be an effective and useful new sentencing tool. To this end, we intend to leave it to the discretion of the court to decide in serious cases of drug trafficking whether a travel restriction order is an appropriate penalty. That must be quite properly for the court.
The judgment that we wish the courts to make is set out in lines four to five of Clause 33 of the Bill; namely, whether a travel restriction order, in all the circumstances of the individual case, is an appropriate sentencing option. This requires a broader sentencing judgment than that suggested by Amendment No. 65, which would require the court to speculate unreasonably.
Similarly, the Government are not suggesting that the mere imposition of a travel restriction order will necessarily prevent re-offending. Again, I do not see how a court could reasonably be asked to make such an assessment. It would be mere speculation. In our view, the amendment would also limit the courts applying travel restriction orders where they consider this to be an appropriate punitive sanction.
As I said earlier, overseas travel is a common prerequisite for drug trafficking offences, and it is right that the court should have the option of punishing those who abuse the freedom to travel with an appropriate sanction.
Lord Lester of Herne Hill: I promise not to intervene again on this issue but, if I may, I should like to make one last attempt. The Minister has repeatedly referred to the judge deciding what is appropriate. The problem is that what is appropriate—unless it is interpreted to mean what is necessary to meet a pressing need—does
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not include the principle of proportionality. I do not understand how the Minister can answer the question put by the noble Lord, Lord Goldsmith, about exactly how the judges are to be guided in a legally binding way as to the international obligation on proportionality unless the wording of the Bill is amended. I do not understand how the guidance can be anything other than something written in water so far as concerns a sentencing judge unless it is embodied in legislation. Therefore, please will the Minister and his colleagues consider ways of modifying the language so that at least the principle of proportionality can be put before the judge without necessarily slavishly writing in the text of the international treaty itself?
Lord Windlesham: It may help the Minister if I make a suggestion. He is not going to convince the House, although he is doing his best and no doubt has a lot more to say. Will he be good enough to report this debate to the Home Secretary? Mr Straw was good enough to come and meet members of all parties before the Second Reading debate. He assured us that the views of the House would be given careful attention. I believe I am right in saying that no concession has been made in the course of these lengthy debates. Now, as the Minister must recognise, there is all-party criticism of the provision. I have been in the Minister's position; I know that he cannot go against his brief. However, would it shorten the proceedings if he were simply to say, without any commitment, that he will raise this matter personally with the Home Secretary and see whether he is willing to give it consideration?
Lord Bassam of Brighton: I am sure that both noble Lords are trying to be helpful. I shall try to be positive in my response. First, perhaps I may pick up the point made by the noble Lord, Lord Lester. As I confirmed earlier, there will be guidance on these matters. I understand the temptation to attempt to deal with them on the face of the Bill. It is a temptation for each and every legislator. However, it is not always possible. We are dealing with complex notions of proportionality. I believe that these matters can safely be left to guidance. Although I fully respect and understand the noble Lord's point, that would be the more appropriate course. There will be guidance on these powers and it will include a reference to the rights under the covenant, together with many other relevant factors which will have to be expressed and taken into account in deciding on an appropriate sentence.
The noble Lord, Lord Windlesham, was, as ever, courteous and helpful in his intervention. I can assure the noble Lord that my right honourable friend the Home Secretary reads our debates in Hansard with great alacrity and interest. I shall no doubt feel obliged, having listened to the noble Lord's wise words, to report to the Home Secretary the serious and important issues that have been raised. I know that he will take a close personal interest in the points raised in the Joint Committee report.

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Before turning to the remaining amendments, perhaps I may conclude my remarks on the points that have been raised. The Government believe that in the cases of individuals convicted of drug trafficking offences whose lifestyle involves frequent overseas travel for pleasure or other purposes, the imposition of a travel restriction order may be a very effective element in the overall punishment as well as an appropriate and justifiable way of preventing further unlawful activity. So, as my honourable friend in another place, Charles Clarke, has said in other circumstances, this combines the preventive and the punitive. The preventive is what we are after here.
In reference to Amendment No. 66A I have outlined why we reject the conclusion of a reference to Article 12(3).
Amendment No. 67 would enable the courts to suspend the prohibition imposed by a travel restriction order not only on compassionate grounds but also on grounds of a major change in the circumstances of the offender. Suspension is intended to cover circumstances where overseas travel is needed for urgent exceptional compassionate reasons whenever that need might arise after the restriction order takes effect.
This amendment would weaken these provisions. That needs to be understood. The Government believe that the applicable test should be that of "exceptional" circumstances, not merely a major change in other circumstances. For that reason, the Government cannot accept the amendment. We believe that Clause 35 properly balances the need to respond appropriately in genuine exceptional compassionate circumstances with the desire to operate an effective sentencing tool. That is the point from which I began my comments in response to the observations made.
The noble Lord, Lord Carlisle, raised the issue of how frequently we expect such orders to be made—at least, I understood that to be the point on which he was inviting me to comment. This is a discretionary power. Ultimately it will be for the courts to determine how frequently it is used. Our estimate, based on 1998 sentencing data, is that the number of offenders liable to such a ban under these proposals will be in the region of 300 to 400. It is not a large number, but it is significant. It indicates the level of seriousness with which we are attempting to deal in adding this provision as part of the armoury of preventive, effective and punitive restrictions on people's ability to exercise one of those freedoms when they are released from custody.
The noble Baroness, Lady Buscombe, asked for the Government's legal advice to be provided. There is a long tradition of confidentiality, as I am sure the noble Baroness is aware. It is not our practice to publish our legal advice. Colleagues of the noble Baroness, many of whom have had experience in government, will remind her of that point. However, I can assure her that the provision of both the ECHR and the ICCPR were carefully taken into consideration in preparing the provisions in the Bill. That is an important consideration.
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I hope that I have dealt with the concerns raised. I apologise if I have not dealt with every single detail. I know that not all Members of the Committee will be entirely convinced of the Government's case. But we have given this matter very careful consideration. We want to see this as part of a package of measures available to the courts. We see this power being used in extreme and profound circumstances, where we believe it will have a long-term and beneficial impact on drug related criminality of a serious kind. We recognise the important issues raised in the deliberations of the Joint Committee on Human Rights. Notwithstanding the important observations that have been made, we resist the amendments.
Lord Carlisle of Bucklow: Before the Minister sits down, will he consider one matter? He said repeatedly in reply to the noble Lord, Lord Lester, that it is the Government's intention that guidance will be issued to the judges as to how the new power is to be used. In view of the separation of powers, how will either the executive or Parliament give guidance to the judges unless it is on the basis of the words in the Bill? That is the point that the noble Lord, Lord Lester, was making. If guidance is to be issued in the manner the Minister has suggested, surely he should at least agree at this stage to consider taking the matter back to the Home Office for a decision as to whether a change of wording is needed in the clauses to indicate to the judges the wishes of Parliament in the appropriate way; namely, through the wording of the statute.
7 p.m.
Lord Bassam of Brighton: There is every good reason for me to take away the contents of this important debate because it has tended to widen the scope of the issue. I sense that there is an acceptance that this is, if you like, the broadening of the range of options available for sentencing. Noble Lords focused precisely on that point. I am, therefore, happy to take away the contents of the debate and to ensure that further reflection is given to the points that have been raised.
However, I should point out to the noble Lord that I drew attention to Clause 33(2)(a). It is within the context of the court considering the appropriateness of this penalty for preventive and punitive reasons that the guidance will be issued. I believe that we can at least trust the executive to offer wise words in deciding what is "appropriateness". I suppose that that returns us to the issue raised by the noble Lord, Lord Lester, about proportionality. Obviously, those issues need to be carefully linked.
Lord Thomas of Gresford: As explained in recent years by the Minister on the Floor of the House, the sentencing judge normally obtains guidance as to how to sentence, first, from decisions of the Court of Appeal in which principles are set out in the interpretation of legislation; and, secondly, from the words of the Act of Parliament. I did not receive a direct answer to my question as to whether there is a

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presumption that this power is to be exercised in the ordinary case, save in special circumstances that must be outlined.
However, what I did hear from the Minister—it is something that I am sure every counsel mitigating in a case involving drug trafficking will use—is that this power is to be used in "extreme and profound circumstances". I should like that phrase to be underlined three times because that is the expression that the Minister used. Does the noble Lord wish to stick with those words because, from what he has said, that is the guidance that any sentencing judge will take? Alternatively, will he accept reasonable amendments to the Bill as put forward by my noble friend Lord Lester, as well as, it is to be hoped, ourselves and others? Surely it would be far better to have the matter expressed in proper parliamentary language than for counsel to be saying, "Well, when he introduced this power, the Minister, Lord Bassam, said that it was to be used only in extreme and profound circumstances".
Lord Bassam of Brighton: I take the advice offered by the noble Lord to heart. However, I believe that I made the case that such "extreme and profound" circumstances are those where there is a real prospect that the convicted person will be involved in international drug smuggling or in a major crime; and, indeed, may well be a real live "Mr Big". Where it is plain that someone is profoundly involved in major drug-running businesses, we believe that it is important to have this potential power to restrain him from travelling abroad.
It is worth reminding the noble Lord that this is a discretionary power. I thought that I made that plain when I went through the issue of presumption. I should like to make it plain again that there is no presumption that an order should be made. If there is any doubt, I have now made it clear for the record repeatedly: a court will make an order only where it is appropriate to do so. The "appropriateness" is the most important consideration.
Lord Lester of Herne Hill: I shall now break my promise. I have been provoked by the discussion to intervene. Surely the noble Lord, Lord Carlisle, is completely right to say that there is a principle of our constitution under the separation of powers that Parliament makes the law but the courts interpret and apply the law. Here the Minister is asking Parliament to give the courts a statutory power and a duty. The noble Lord said that both he and his colleagues propose to advise judges about how that power is to be exercised.
It is no good relying upon the wretched case of Pepper vHart, which I wish I had never won. I am afraid that that disfigures our proceedings and those of the courts and allows what Ministers say here to be treated in some sense as relevant to the law of the land. It is not relevant. All that is relevant is what is in the Act of Parliament. It is no use the Minister saying that he is to give guidance to the judges. Unless directed by the Lord Chief Justice or by Parliament, the judges
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would be acting improperly if they were to follow that guidance in their sentencing functions. Therefore, I beg the noble Lord to take away the debate and put the language of the Bill into a proper form in terms of legal certainty, as well as proportionality.
Lord Bassam of Brighton: As ever, the noble Lord is clever in bringing the issue to the fore. I understand very well the point that he makes. As I said earlier in response to the noble Lords, Lord Carlisle and Lord Windlesham, we shall certainly reflect upon the debate. I said so without commitment. However, I believe that the noble Lord, Lord Lester, would accept that there are many areas of law where codes of practice and guidance are given outside the legislation. The legislation provides for the guidance or codes of practice to be made available. Clearly there is an understanding that the courts will interpret the legislation in that light. The noble Lord referred to Pepper v Hart. Yes, that is the case. I can understand the noble Lord's regret. But what we say in Parliament is clearly important and has a bearing on such matters.
I conclude by returning to the point made by the noble Lord, Lord Thomas of Gresford. The power that we are talking about is available only in serious circumstances—that is to say, conviction for a drug-trafficking offence with a sentence of four years' imprisonment. Those are very serious circumstances. Where a major crime is involved, perhaps one of international proportions, where very large quantities of drugs are being shifted into this country, thus ruining the lives of countless thousands of people and destroying the communities that are very much at the heart of our inner-city areas, we are simply arguing that it is entirely appropriate for the courts to have the opportunity to use the discretionary power that we are placing in the Bill. Those are the important issues, some are political and some are juridical. Nevertheless, they are important matters in the context of all issues raised by the Joint Committee on Human Rights.
Baroness Buscombe: I shall be brief. I believe that I speak on behalf of all Members of the Committee when I say that there is no question of any of us wanting to prevent provisions, or measures, that are intended to fight the illegal trafficking of drugs. The debate has highlighted the difficulties of how the powers envisaged in these clauses will be used. We have heard extensive arguments from noble Lords, especially from my noble friends Lord Carlisle and Lord Windlesham. The points that they made are tremendously important.
There are clearly questions that still remain outstanding, particularly in relation to the point about guidance for judges. My noble friend Lord Windlesham was right when he politely put it to the Minister that he should draw this debate to the attention of the Secretary of State and take him carefully through the points that have been raised. There are a number of issues that are plainly fundamental to the clauses. In the circumstances, We

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shall consider such issues with care in the hope that we can return to them on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 64A and 65 not moved.]
On Question, Whether Clause 33 shall stand part of the Bill?
Lord Carlisle of Bucklow: I made the remarks I wished to make during the course of the debate. I do not propose to speak to individual clauses.
Clause 33 agreed to.
Clause 34 [Meaning of "drug trafficking offence"]
On Question, Whether Clause 34 shall stand part of the Bill?
Lord Carlisle of Bucklow: I spoke to the clause in the earlier debate. As I said, I do not wish to speak to individual clauses.
Clause 34 agreed to.
Clause 35 [Revocation and suspension of a travel restriction order]:
[Amendment No. 66 had been withdrawn from the Marshalled List.]
[Amendments Nos. 66A to 67A not moved.]
Clause 35 agreed to.
Clause 36 [Offences of contravening orders]:
Clause 36 agreed to.
Clause 37 [Saving for powers to remove a person from the United Kingdom]:
Clause 37 agreed to.
7.15 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 68:
After Clause 37, insert the following new clause—
"Permitting use of controlled drugs on premises
For paragraph (d) of section 8 of the Misuse of Drugs Act 1971 (c. 38) (offence of knowingly permitting cannabis, cannabis resin or prepared opium to be smoked on premises) there shall be substituted—
"(d) administering or using a controlled drug which is unlawfully in any person's possession at or immediately before the time when it is administered or used.""
The noble Lord said: In moving Amendment No. 68, I wish to speak also to Amendment No 146. These amendments are closely related. I wish to explain why the Government oppose the new clause in the name of the noble Lord, Lord Cope, the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Buscombe.
The amendment to Section 8 of the Misuse of Drugs Act 1971 tabled in my name would have the effect of strengthening police powers to prosecute those occupiers or other persons concerned in the management of premises who knowingly permit the illicit use of controlled drugs on their premises. Section 8(d) of the Misuse of Drugs Act currently makes such
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persons liable to prosecution if they knowingly permit the smoking of cannabis or opium on their premises. The new power resulting from the proposed substitution of paragraph (d) will extend this liability to the illicit use of all controlled drugs, including, and in particular, crack cocaine. It is therefore a far more comprehensive amendment than that proposed in respect of paragraphs (c) and (d), for it is not just crack cocaine that is used on such premises.
The amendment to Clause 139 of the Bill (Amendment No. 146) is consequential to the Government's amendment. Section 8 of the Misuse of Drugs Act 1971 extends to the United Kingdom. Amendment No. 146 ensures that the extent of the amendment is the same.
The Government believe that the amendment we propose to Section 8 will facilitate police action against closed drug markets such as crack houses. I hope that it will receive general support and I know that calls for such a change have been made by Members of both Houses from all parties.
Under the Misuse of Drugs Act 1971, it is currently an offence for the occupier or manager of premises knowingly to allow illegal drugs to be produced or supplied on those premises. But liability in respect of the use of illegal drugs extends only to the smoking of cannabis or opium. This very much reflects the drug misuse patterns that prevailed at the time the Act was introduced.
Police enforcement success against open street dealing in drugs has led to greater use of "closed" drug markets such as crack houses. Such closed markets present particular challenges for the police, especially with regard to the gathering of evidence sufficient to sustain a prosecution.
The Government have considered measures which would best assist police enforcement and concluded that an amendment to extend Section 8 to the use of all illegal drugs on premises is appropriate—it is not just crack cocaine that is used on such premises. The amendment will assist police enforcement in that where charges of supply or even possession cannot be laid, any evidence on the premises of the drugs themselves or drug paraphernalia discarded there could help construct a charge that the premises had been used for drug taking purposes.
Crack houses are simply one example of closed drug markets. Crack cocaine is highly addictive and users often have to turn to crime to feed their habit. This can be highly destructive for the communities in which such establishments take hold. Making the owners or those concerned in the management of such establishments liable to prosecution will strengthen the police's hands in tackling the problem. The change is supported by the police. The Government are nevertheless mindful that such provision should not go forward without consideration of the need for certain very important safeguards.
Successive governments have undertaken to review Section 8 of the 1971 Act to consider whether its scope should be extended to the use of all controlled drugs. The sticking point has always been the need to

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incorporate a balancing protection for parents, housing authorities and those in the voluntary and treatment sectors who work with drug misusers. In particular, it is recognised that, in extending the police powers under Section 8, nothing must jeopardise the partnership approach and co-operation that tackling drug misuse self-evidently requires.
The Government have considered whether it would be possible to provide some form of statutory defence under Section 8 but have concluded that this would not be workable as it would serve to confuse the law and be likely to hinder legitimate prosecutions. The issue of guidance in the form of a Home Office circular, agreed with the police and Crown Prosecution Service and upon which relevant government departments and key outside interests would be consulted, is judged to be the best way to proceed. This consultation process would take account of the views of the voluntary, treatment and housing sectors. A commencement order bringing the change to Section 8 into force would not be laid until the guidance was ready to be issued.
We shall ensure that those lawfully entitled to possess controlled drugs will not be affected and we shall issue Home Office guidance agreed with the police and departments with an interest, to ensure that any valid concerns of the voluntary, treatment and housing sectors are addressed.
I hope that the Committee will agree that it is preferable to deal with all controlled drugs in this amendment rather than only with crack cocaine, as in the Opposition Amendment No. 97. I should also say that that amendment is technically defective in that crack cocaine is not a controlled drug under the terms of the 1971 Act. It is simply one form of a substance for which the correct technical term is "cocaine". I believe I am right in saying that it is a derivative. I propose that the measures in my name stand part of the Bill. I beg to move.
Baroness Buscombe: I speak to government Amendments Nos. 68 and 146 and also to our Amendment No. 97. I accept what the Minister said about the difference between the amendment that we tabled on crack cocaine and that of the Government which contains a wider power. We are pleased that the Government are now responding to strong pressure from Her Majesty's Opposition to amend Section 8 of the Misuse of Drugs Act 1971 with regard to an arrestable offence.
These amendments represent the closing of a frustrating, glaring loophole in the law given the now sadly prevalent use of crack cocaine by illegal drug users. Indeed, on 23rd January my noble friend Lady Hanham laid down a challenge to the Government to crack down on crack houses. We were pleased that the Minister was grateful to her for "drawing this out usefully".
In an earlier debate, the noble Lord, Lord Windlesham, alluded to the depressing excuse of the Government in using the word "modernisation" to justify some aspects of the Bill. I suggest that the amendments respond to one of the rare occasions
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when the word "modernisation" is right. It responds to a problem about which I had not heard a few years ago but is now prevalent and should be dealt with. We are pleased to support the amendment.
Lord Bassam of Brighton: There appears to be an outbreak of cross-party agreement on this. I am delighted that that is the case. It would be remiss of me if I did not pay tribute not only to the noble Baroness, Lady Buscombe, but also to the noble Baroness, Lady Hanham, who made a forceful case. She and others have made representations to the Home Secretary. Representations have come from many sides. As I intimated at the time, there was a great deal of sympathy for the point that she made. We have had some further consultations with the police. They see value in amending the law in the way in which we have brought forward the amendments. I hope that it aids and abets law enforcement in this field. No one should underestimate the evil contained in these crack houses. Anything that can be done to mitigate and confront that evil should be done. For that reason, the Government are persuaded that this is the right way forward.
On Question, amendment agreed to.
Clauses 38 to 40 agreed to.
Clause 41 [Police directions stopping the harassment etc of a person in his home]:
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 69:
Page 33, line 22, leave out "("the victim")" and insert -("the target")"
The noble Lord said: Two amendments in this grouping are advanced by Her Majesty's principal Opposition.
Clause 41 is a vital clause in the Bill; some might think it the most important. In many ways, one might prefer to see Clause 41 dropped. But in the spirit of constructive engagement, this group of amendments seeks to improve the clause by inserting safeguards against misuse of its wide powers.
There is widespread misunderstanding of the extent of present police powers and, hence, of the need for this new power. In particular, we have the Public Order Act 1986. Section 4A, which was introduced in the 1994 legislation, stipulates that threatening, abusive or insulting behaviour which actually or is likely to cause harassment, alarm or distress shall, if there is an intention to do that, be an offence. Section 5 of the Public Order Act 1986 has the same provision save that for a prosecution under Section 5 there is no need for there to be any intention to cause harassment, alarm or distress. Clause 41 of the Bill goes a step further. It creates an offence not only where there is no intention of causing harassment, alarm or distress but in circumstances where the person charged has not used any threatening, abusive or insulting words or behaviour.
The extent of the misunderstanding of the present law seems to extend to the Government themselves. For example, the Home Office Minister, Charles Clarke, said in the House of Commons Standing Committee on 6th March that the powers under Clause 41,
"would be available to deal with the mobs who have, in recent times, gathered outside the homes of supposed sex offenders … in an attempt to drive them out of their homes".
However, Section 5 of the existing Public Order Act provides the necessary police powers to deal with such cases. A mob trying to drive someone out of his home would by definition be using,
"threatening, abusive or insulting words or behaviour, or disorderly behaviour".
Later in the same debate, Mr Clarke said that Clause 41 might apply to investigative journalists. We should be extremely careful about legislation which would discourage bold journalism in the public interest. There is little enough of it these days. If one tries to fine tune control of the free press one does so invariably at the price of diminishing their freedom. Mr Clarke claimed that Clause 41 would not make it unlawful for journalists to engage in what he called "a classic doorstep". He went on to say that doorstepping,
"can sometimes be difficult and problematic for the people concerned, but would obviously not be unlawful because harassment, alarm and distress would not arise".
How can one police that fine line? The distinction that Mr Clarke attempted to make with regard to doorstep journalism begs the question. Someone who is guilty of a concealed fraud, for example, might well become justifiably alarmed or distressed by the presence of a determined journalist who is going to stick it out until the fraudster leaves his or her house and can be confronted.
Let us imagine that the grossly defrauded pensioners of the Mirror newspapers had had an inkling of their misfortune while Robert Maxwell was alive. A bit of investigative journalism would have helped then, would it not? Let us imagine that they tipped up at the entrance to Hedington Hall with placards saying, "Pay us our pensions". I believe that that would have been caught under Clause 41. They would be in the vicinity of Mr Maxwell's dwelling. They would be there for the purpose of representing to Mr Maxwell and his neighbours that he should pay their pensions. In the early days it would not have been apparent that Maxwell and his colleagues were guilty of fraud. If the police had had a call from Mr Maxwell saying that the presence of the people at his gate was causing him embarrassment and distress, the police would have felt obliged to act on that; and a policeman may have arrived and told the pensioners to take their posters half a mile away. The wicked will always be the first to utilise legislation of this kind to their advantage if they have half a chance.
What about President Pinochet? Would the objectors have been caught by Clause 41? What about protesters in the vicinity of Nos. 10 and 11 Downing Street?
As no doubt did many other Peers, I received a briefing on Clause 41 from the Countryside Alliance. It stated that recent history proves the sad necessity of these new powers, and gave 10 recent examples of that need. Yet every such example involves violence in respect of which a plethora of existing law provides remedies. Raising one's fist, let alone lowering it, brings into play an offence of assault. The only exception among the 10 examples given by the Countryside Alliance was the one which simply referred, without giving details, to "the homes of shareholders in the company which were targeted". The Public Order Act should and does deal with that.
The problem is that there are insufficient police to ensure compliance with existing law so that new and more draconian laws are introduced in terrorem. As presently drafted, we believe that Clause 41 is dangerously wide. That belief was reinforced in a letter written to me as recently as last Friday on behalf of the noble Lord, Lord Bassam of Brighton, in answer to a query I raised at a meeting last week with Jack Straw. The letter states that the requirements of Clause 41,
"mean that there should be no question of the police being able to disperse groups of protesters who are innocently and peacefully expressing their views".
Yet that is manifestly not the case.
I refer back to my example of the Mirror pensioners. Their innocence would be beyond question. Indeed, they would be the victims in the case of doorstepping one of the Maxwells. That they were peaceful in expressing their views would not help them either. As Clause 41 is drafted, there would be no protection against their being moved away. Because Clause 41 requires no intent to cause harassment, alarm or distress on the part of the so-called victim, requires no threatening, abusive or insulting words or behaviour on the part of the protesters, and needs no objective or actual harassment or alarm or distress by the protester, it is a dangerously wide clause. All it requires is that the bobby on the beat reasonably believes that the mere presence of protestors is likely to cause alarm or distress. The constable's view of that likelihood will have been formed by the fact that he is acting on a complaint.
All that stands in the way of a group of innocent and peaceful protestors being prevented from exercising their age-old democratic rights by Clause 41 is the discretion of a hard-pressed policeman who—I emphasise this point—is likely to arrive at the scene of the protest believing that the legislation requires him to take the view that Mr Maxwell, or whoever called the police, is already a victim.
The police officer will exercise his judgment, not on criminal law tests but, first, on the balance of probabilities and, secondly, on a likelihood—as low a threshold as the law provides. That is all that will preserve a fundamental and ancient liberty. The complexities of Clause 41 make me wonder whether any bobby on the beat who does not have a law degree will be able to make much sense of it.
Before leaving the Home Office letter, I cannot resist pointing out that the Home Office also misunderstands the scope of the existing law. The letter specifically refers to the possibility that the protestors might,
"start taking photographs of his"—
the target's—
children".
It is far-fetched to believe that a commonsense Bench of magistrates would not quickly exercise their discretion in such a case to interpret such an act as constituting threatening behaviour, because the implications of photographing a child in such circumstances—the Home Office letter deals with animal rights protestors—are likely to carry a threat, which need not be verbal.
The most important amendment in the group is Amendment No. 77, which would insert a defence against a conviction under Clause 41 if the accused can,
"prove that his conduct was reasonable".
That does no more than replicate the defence available under Sections 4A and 5 of the Public Order Act 1986, which deals with more serious cases.
No criminal statute should be tendentious in its language. The clause calls the person against whom a protest is being made—usually the person who will have called the police— a victim. That prejudges the situation. Because the hearing of any charge under Clause 41 will mainly be about whether the accused has victimised the complainant, it is wholly inappropriate to start by calling the complainant a victim. Amendment No. 69 would change that wording. It is notable that the Public Order Act 1986 and the Protection from Harassment Act 1997, which provides another remedy for those who are harassed, studiously avoid such prejudicial language, referring simply to a "person". The only exception of which I am aware is Section 5 of the 1997 Act, which deals with restraining orders, but only against someone who has already been convicted, so the word is aptly used.
Amendment No. 72 would leave out the words,
"by his presence or otherwise".
The Minister may be able to satisfy us that they are essential words, but I do not understand their significance and they clutter an already highly complicated clause.
Amendments Nos. 73 and 76 would insert the word "serious". They would raise the threshold of severity of the harassment, alarm or distress necessary before a policeman can give directions. That would provide some practical protection against inadvertent misuse of that wide power.
Amendment No. 75 would insert the word "reasonably" in subsection (2). That would discourage arbitrary and unreasonable directions being given by a constable. That is desirable—and, indeed, necessary. As the clause stands, the only check on the directions to be given is a purely subjective one—namely, what the constable thinks necessary in the circumstances.
I apologise for having spoken at length but Clause 41 could have a considerable long-term impact on grassroots democracy in this country. It is ironic that we are debating it on the day of the anti-capitalism march. It was introduced late in the Commons in response to the specific case of the Huntingdon laboratories. We are in danger of giving the new power inadequate scrutiny. As Liberty has said of the clause:
"The nearly automatic reaction to such problems is to get, out the statute book and pencil a few more powers for the police and to create a few more criminal offences".
As Simon Hughes said in the other place, the Bill,
"tilts the balance between the liberty of the citizen and the power of the state. It is another ratchet in the direction of the state".—[Official Report, Commons, 14/3/01; col. 1116.]
When the Home Secretary kindly agreed to meet Members of this House, he concluded his remarks on Clause 41 with the assurance that one could rely on the police to deal with these matters fairly and reasonably. Although that is generally true, it cannot universally be so. If it was, we would not need all the safeguards of our criminal law and process. In these matters, we in this House in particular, insulated as we are from popular clamour, have a clear duty of far-sighted caution on such difficult but vital matters. I beg to move.
Lord Renton: The noble Lord, Lord Phillips of Sudbury, has spoken at well justified length on 10 amendments to Clause 41. This group of amendments deserves a great deal of discussion, which would last a long time. It is normal for the main business of the day to be adjourned at half past seven and any other business to be taken during the following hour. There is an Unstarred Question on the Order Paper and I see noble Lords in the Chamber who may be waiting to deal with it. I therefore respectfully suggest that, instead of continuing with this discussion on Clause 41, we should adjourn for dinner. It happens that on a Tuesday night we have a better dinner than on other nights in your Lordships' House but that is not the sole reason for my suggestion. We have had some strenuous discussions and the noble Lord, Lord Bassam, appears to have left the Chamber. I now see him returning. I hoped for his sake that he had left. I respectfully beg to suggest that further discussions on the Bill be adjourned for the dinner break.
Lord Davies of Oldham: I am grateful to the noble Lord for that intervention. I had anticipated that the debate on these amendments would be somewhat protracted, but we reached the group at an awkward time and I was not sure that everybody was present for the next item of business on the agenda. Starting early might have caused some embarrassment to the House. I have just seen an approving nod from the noble Lord, Lord Phillips, who would be most disadvantaged by an adjournment at this stage. He has spoken eloquently, but we shall have to respond to his eloquence somewhat later than we would otherwise do. He appears to approve of the noble Lord's suggestion, so

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I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Leeds Railway Station
7.39 p.m.
Lord Greaves Lord Greaves rose to ask Her Majesty's Government what lessons can be drawn from the modernisation scheme at Leeds railway station.
The noble Lord said: My Lords, a certain amount of discussion has taken place among noble Lords, who, in response to seeing this item on the Order Paper, have said such things as, "Why are we talking about Leeds station?", as though Leeds were in the north of Finland and had a population of 23. I shall try to explain.
I start by putting the matter into context. Leeds station claims to have the largest number of passengers of any station outside London. More than 900 trains a day go through it. It serves a city which is a major regional centre. As a native-born Bradfordian it pains me slightly to say it, but Leeds is a thriving regional centre. It is the largest financial and legal centre outside London. The station, which is run by Railtrack, provides facilities for services run by GNER. It is the main northern terminus on the West Riding branch for the East Coast Main Line, Virgin Cross Country services, a large network of suburban services run by Northern Spirit, or, as they now announce themselves, Arriva, together with the increasingly important trans-Pennine services and, indeed, what remains of the Settle to Carlisle services.
Therefore, what has been happening at Leeds station that leads me to ask your Lordships to debate the matter? A £165 million scheme—it may now be larger than that—is under way for the major renovation and recasting of the track, signalling and infrastructure in the area. Approximately £40 million is being spent on transformation of the station itself. It is called "Leeds First". It is also called the "East Coast Main Line Modernisation Phase 1". One hopes that other phases will follow. The massive 30-month programme in seven phases aims to transform the track, provide more platforms, more track and modern signalling and create a modern station.
Therefore, what are the problems? There are several. There has been a huge amount of disruption to local services throughout West Yorkshire and the parts of North Yorkshire served by Leeds. But people accept that because the long-term result will be beneficial. However, during the Christmas period, acceptable disruption turned into a shambles. The situation at Leeds station was partly a local laughing stock and partly the cause of a great deal of dismay and anger.
During what in railway terms is called a "blockade"—in other words, the closing down of the station for new signalling, platforms, track and so on—the whole situation got out of hand and, in effect, the project fell apart. The blockade of some 10 or 12 days was due to end on 2nd January. Railtrack failed to meet that deadline and announced that it would overrun by a week to 9th January. During that period, the station was completely closed down.
Railtrack had said that the project would overrun to 9th January. That failed, and it overran by another week to 15th January. On the 15th, when everyone expected the services to start again and the local bus services had been called off, it was found that the electric services could not run either because the overhead wiring had not been installed satisfactorily. Only diesel trains were able to use the station that day.
On the next day, 16th January, when the station was due to open yet again, there was a points failure and more chaos. People in that part of West Riding have a fairly wry attitude to life and are able to tackle situations with broad shoulders and a good broad Yorkshire accent. But, finally, the situation got down even the people of Leeds and the West Riding. Not only Leeds was affected; the knock-on effects caused huge disruption to the whole network in West Yorkshire. Businesses in Leeds are said to have lost hundreds of thousands of pounds, if not millions, during that period.
Many excuses were given. The first excuse was the bad weather. It was bad, but one expects bad weather at the end of December and beginning of January. However, Railtrack has been remarkably frank about why the problems arose. Its spokesperson, Naomi Steer, was reported in the local press as saying that Railtrack had been "seriously surprised" at the complexity of the work. It is clear that there were huge faults in the initial planning. During that period there was also a huge breakdown in communication between the project partners and, indeed, the public.
What the company called the "complex interfaces" between the contractors had not been properly integrated. Railtrack had been too ambitious in what it tried to achieve, and it was installing new technology that had not been properly tested. I went along as a lay person to watch the operation. While watching the Balfour Beatty workforce build the new platforms where the old Midland station used to be, I saw several men spend a lot of time standing around doing very little. Some were walking up and down purposefully and some were looking at plans.
One day I saw nearly 100 people, all wearing Day-Glo orange jackets and looking, I suppose, like Liberal canvassers. Nevertheless, they were altogether less efficient than Liberal canvassers. I counted approximately five or six who were actually doing something. If I had been Balfour Beatty or Railtrack, I would not have been very happy with the people whom I was employing and who, because of the organisation's inefficiency, were not doing very much.
Indeed, there is no argument about what I am saying. It can all be found on the Railtrack website, which states:
"Engineering works overran by a wholly unacceptable margin".
The Railtrack LNE director, Robin Gisby, is quoted in Rail magazine as saying:
"It was totally unsatisfactory for passengers".
He also stated that the situation was "unacceptable".
Railtrack is now promising that the situation has been sorted out. The Rail Regulator gave the company until 21st May to finish the current phase, and it is still promising that the operational aspects will be finished by the end of this year. We shall see. We shall be able to give our final verdict on Leeds station and on whether or not the project has been a success when we are able to use the new station in its final form and can see whether the trains all arrive on time and whether everything works properly.
The important issue, and the reason why I tabled this Question, is that such a situation must not happen again. There must be no more blunders at Leeds. If there are, I believe that people will become very angry. However, more than that, future projects of this type on the rail network must be properly planned and properly managed so that such problems do not occur again. These are hugely complex projects involving a series of different engineering and civil engineering disciplines. They need proper planning and proper management, and it is absolutely clear that the planning and management at Leeds have fallen down. The fact that the projects are so complex is all the more reason to carry them out properly.
I hope that the Minister will tell us of many exciting projects in his 10-year plan for the railways and transport. I hope also that he will tell us that they will be managed properly in future. Different ways of doing so have been floated. Perhaps he will explain those to us.
Perhaps I may refer to one or two other projects which are similar to the one at Leeds in that they involve substantial work to the rail infrastructure surrounding a major station. With regard to the East Coast Main Line—if modernisation on that line ever moves beyond Leeds First Phase 1—we are promised substantial works in the Doncaster area, including at Doncaster station, and at Peterborough. Perhaps both those projects will be even bigger in terms of their cost than the one at Leeds. If the people of Doncaster and the users of the East Coast Main Line are to be subjected at Doncaster and Peterborough to anything like the situation at Leeds, I believe that certain people will have to start to run for cover.
There are proposals—I do not believe that at present they are more than that—for a major and substantial rebuilding project at Birmingham New Street, which, like Leeds, is a bottleneck so far as concerns services. If that comes about, I hope that the lessons of Leeds will be applied at Birmingham.
I return to what I said at the beginning of my speech and perhaps I may give one final warning. People ask, "Why are we talking about Leeds?". If what has
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happened at Leeds had occurred at any of the main London stations over Christmas, your Lordships and the other place would have discussed it endlessly, week after week, in the weeks and months since then.
One of the main projects involves major re-engineering and rebuilding work at Clapham Junction. I urge noble Lords, the Government and everyone else concerned with the railways to take note of the lessons from Leeds and to apply them to Clapham Junction. Otherwise, noble Lords will be discussing Clapham Junction every week for a year.
7.50 p.m.
Lord Berkeley: My Lords, I congratulate the noble Lord, Lord Greaves, on securing this debate. He asked, why Leeds? As he said, it is an example for the whole industry. While Leeds was having its disaster over Christmas and the New Year, so was Willesclen. That disaster severely affected freight. I declare an interest as chairman of the Rail Freight Group. Channel Tunnel rail freight services were almost at a stop for about a month. Similar problems arose in Leeds and Willesden. We were told that the problem was equally complex and the consequence of signalling overrun, and so on, and we had the usual apologies. I do not believe that railway projects are particularly complicated—we should compare them with major chemical plants or various activities in the oil industry. We do not hear of such major problems in the oil industry, in which I have worked for a few years. It has a habit of managing to cope with weather. Yes, it did snow in Leeds, but, as the noble Lord said, it snows many winters.
I heard at Leeds and Willesden that the overhead line contractor departed on 2nd January and left the job unfinished because he had air tickets for India and that the signalling contractor had air tickets for Australia. The job was therefore left half finished. I made some inquiries today and was told that the Railtrack project manager spent 10 days on holiday in the United States during the same period. I am not sure how he could have project-managed the situation.
It is unacceptable not to test equipment first. We heard such an allegation in relation to the West Coast Main Line two or three years ago with moving-block signalling. As the noble Lord, Lord Greaves, said, train operators fared little better than the contractors—they had no information and no forward planning. Railtrack may be exhibiting the novel idea that if one is going to close a station or a line, one first comes up with an alternative route. It may have proposed to do so for the West Coast Main Line next summer and may not blockade the whole of that line for a month next August. We shall see.
My conclusion is that there has been a total management failure on both projects over Christmas. The Leeds situation is not the only or the first example. Apologies are not enough.
I question whether the situation mattered to Railtrack, the Rail Regulator and the Strategic Rail Authority. I think that it mattered to the Government—the Minister will later tell us about that.

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People said that if there was a financial shortfall, the Government would pay because the Rail Regulator would tell them to do so. I do not think that that is the case, even if it was the case. Yesterday's Financial Times reported that, when speaking to Railtrack's shareholders, the Rail Regulator's chief economist said,
"if Railtrack gets into a financial crisis because of inefficiency or through mistakes it will not receive extra public subsidy to prop it up".
That is pretty clear to me. Railtrack faces claims from train operators and passenger and freight operators, and new contracts are coming out, which may involve further risks. We have to ask whether Railtrack can get it right or whether it is heading for extinction—self inflicted or otherwise.
There appears to have been a fear that Railtrack will be taken over or liquidated. I must ask why—that is what the private sector is about. Railtrack has assets that we are told are worth about £3 billion and its share price is now nearly down to its offer price. Its liabilities are very high and it will not make any more capital investments. I heard Sir Alastair Norton, the chairman of the Strategic Rail Authority, give evidence today to the Transport Committee in another place. He said that the Government's contribution was £29 billion over 10 years and that much of that would go to Railtrack. He also said that if the Rail Regulator was not propping up Railtrack's inefficiencies, what would happen to any company would happen to Railtrack, which is no different in this regard. When the share price starts to go through the floor, shareholders start to make a noise and put pressure on management to change, or somebody comes along and buys the company out.
To conclude, now is not the time to discuss the restructuring of Railtrack or the rearrangements between the SRA, the Rail Regulator and the Government to achieve a 10-year plan, but that is what has to be discussed at some point. Passenger and rail freight customers are suffering from a structure of continuing inefficiencies. We must discuss whether it is possible to have a company with duties to shareholders and to maintaining network efficiency. Is it right to continue to pour Government money into a regulated monopoly when it has been publicly stated that it can raise no more private finance itself? This House and the country will want that question to be answered after the election.
7.55 p.m.
Lord Wallace of Saltaire: My Lords, I am glad to see that the noble Lord, Lord Dixon-Smith, is in his place. As has happened so often in debates in the House in which I have participated during the past few months, the Conservative Benches are almost empty. It may be that there are no Conservatives left in West Yorkshire to lobby noble Lords.
Leeds station is at the centre of the whole network in West Yorkshire. In Leeds and many other cities we have the inheritance of separate lines running into separate stations. That is the legacy of the first
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privatisation of our railways. A lesson was founded on the need for strategic planning and the dangers of fragmented ownership.
When I first went to live in Manchester there were five separate stations and one had to walk, carrying one's suitcase, between one and another. That, happily, has been resolved by building the Salford curve and by the introduction of trams.
Birmingham used to have two major stations, through which I also walked as a young man. Birmingham New Street is now a focal point for the entire rail system. However, that raises disturbing questions about whether Railtrack is investing enough in sufficient spare capacity and, in particular, in additional track in and out of the station, to maintain the growth in rail travel.
Bradford is the second city in the West Yorkshire conurbation and it is still without a through-route from north to south. That is a legacy from the ancient rivalry between the Great Northern Railway, the Lancashire and Yorkshire Railway and the Midland Railway. It is still evidenced in the 800-metre gap between Bradford Exchange and Bradford Forster Square. There has been a series of proposals over the past 50 years or more to link up those stations but none of them was ever carried through. That was the result of a lack of imagination, inadequate finance, low priorities, divided authority and a preference for roads.
When I was first living in Shipley in Saltaire, the Aire Valley motorway was going to take care of the whole problem. That was fine except that it would have involved the demolition of a substantial part of Saltaire, which would never have been eligible for world heritage status and would have occupied the whole of the narrow Aire Valley for some miles.
Rail traffic is highly desirable in West Yorkshire because of the nature of the environment and the need to link together the old textile towns north as well as south of Bradford and Leeds, including Bingley, Shipley and Skipton. Those areas are now dependent on financial services, some of which, as we well know, are being forced into amalgamation, which threatens local employment. We need to have a connected rail network. There was an attempt, during earlier cutbacks, to close the Settle to Carlisle railway line, which would have ended links to the north. The massive and unexpected successes of that line since investment was provided to keep it open maintains a link to the north. I welcome the fact that at last decent trains are being introduced on the Airedale and Wharfdale lines to replace the cast-offs from Network SouthEast, with which we used to survive.
Bradford and its associated towns need a through-link to take them directly to Manchester Airport and to provide them with a better link to Leeds. The improved stock is a welcome beginning. Leeds station, when it is finally completed, will be an improvement for the whole region, but I suggest to the Minister that proper investment in an integrated transport structure for the whole of West Yorkshire also requires such a link-up in Bradford as well.
8 p.m.
Lord Faulkner of Worcester: My Lords, I thank the noble Lord, Lord Greaves, for initiating this debate tonight and for giving us the opportunity to discuss some of the problems which the fragmented railway faces as it attempts to undertake investment projects which are designed to provide more capacity and eventually to improve facilities for its passengers.
I suppose I can claim a tiny amount of responsibility for what has been done at Leeds as I helped the British Railways Board promote the general powers Bill—one of the last it put forward—which provided for two extra tracks from Holbeck to Leeds to increase capacity for the growing number of metro trains approaching the station from the west, particularly from Harrogate and Bradford. That was before the Transport and Works Act 1992 took effect.
So the origins of the scheme are well-founded and are part of the strategy for building for the growth in the railway which everyone in this House wishes to see. However, the lessons to be learnt are essentially and inevitably for Railtrack. The Leeds scheme was developed and funded by it and the implementation was entirely under its management and control as the infrastructure owner.
Railtrack acknowledged failings in the way in which the project was implemented. The noble Lord, Lord Greaves, referred to that admission of failure on the Railtrack website, particularly in relation to the ambitious timescales set and, above all, the lack of contingency plans. The bulk of the work was undertaken during the Christmas and New Year period, at a time when resources and attention were diverted elsewhere to deal with the emergency speed restrictions imposed after the Hatfield accident and the results of extensive flooding.
But the main problem was that Railtrack was grossly over optimistic as to what could be done on the fragmented railway. It seemed to believe that it was able to plan on the basis of what British Rail would have done had it still existed. The truth is that those criteria no longer apply. I am not one of those who look back at the days of the nationalised railway through rose-tinted spectacles and try to pretend that the trains all ran on time, that all the staff took their responsibilities as public servants seriously and that all stations and coaches were clean and free of litter and graffiti.
But, on the whole, British Rail was able to plan and manage the big investment projects well. The East Coast Main Line electrification was completed on time and on budget, as was the building of the Eurostar terminal at Waterloo. I recall that when the west coast line was being electrified new services were provided on alternative routes such as from Paddington to Birmingham Snow Hill and from St Pancras to Manchester Central, while the major works were being carried out on the lines out of Euston. It is almost impossible to imagine that happening today because the different lines are run by different train operating companies. So when, as happened the other day, Railtrack closes the route between Taunton and
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Exeter, for example, First Great Western offer its passengers not trains on another line but slow and uncomfortable buses, even though there is an acceptable alternative route from Salisbury to Exeter on which South West Trains run.
Railtrack seems to have come to the view that the railway has lost the knack of upgrading and renewing while services are still running and that the only solution therefore is to shut the railway. That is why we hear calls for fortnight-long blockades on the West Coast Main Line, for example. But such blockades destroy the business of the train operators, who need every penny they can get, and more, to meet the declining subsidy profiles, which were based in the beginning on an uninterrupted service.
At the heart of the Government's 10-year transport plan is a 50 per cent increase in passenger miles. A large number of major infrastructure investment projects are being planned to deliver that, and there will be many more signalling renewal schemes during that period which Railtrack will have to carry out. So it is vital that the lessons learnt from Leeds are applied to those schemes to minimise disruption to passengers while the work is being undertaken.
Since the turn of this year, it has become evident that Railtrack may not be able to take forward major enhancement projects that are not already committed, and that those will need to be led by the Strategic Rail Authority. I hope that the SRA takes forward those projects in joint ventures involving private finance and private management expertise. It will be essential that it makes contingency arrangements to deal with problems as they arise. An important part of that will be to make alternative arrangements for handling passengers while the services are disrupted, and it will be important to involve the rail passenger committees in that process.
The Government were clearly right to establish the SRA and to equip it with adequate powers to lead the industry in this way. Under the regime set up at privatisation there would have been no alternative way forward if Railtrack proved, as it has in the sad case of Leeds, unable to manage the major infrastructure investment projects.
8.5 p.m.
Lord Bradshaw: My Lords, before speaking I must declare my membership of the Strategic Rail Authority, but emphasise that I am not speaking on its behalf. I also thank my noble friend Lord Greaves for giving us this opportunity to debate this topic.
I alone of the people taking part in the debate have been responsible for the management of some of the largest infrastructure resignalling schemes on British Rail. On no occasion did we have overruns of the sort that have taken place at Leeds. The biggest scheme, at Liverpool Street, which was carried out over an Easter weekend, overran until the Tuesday lunchtime and there was hell to pay for the managers as a consequence.
I want today to concentrate on the broader issues raised by what happened at Leeds. First, I want to contrast the problems of a management project on a

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"live" railway, to which the noble Lord, Lord Faulkner, referred, which are totally different from a major infrastructure job on a greenfield site. It is important to recognise—I do not believe even senior people in the SRA and possibly in government understand this—the difference between building the Channel Tunnel rail link through green fields and upgrading the West Coast Main Line with trains constantly whizzing past at speed.
It is important that the person most involved is the principal operator. The principal operator must take the lead in these schemes. At Leeds I understand that GNER did not even have a representative in the project team. That is absolutely disgraceful. GNER should have been in the lead because it deals with the customers and would have represented not only its own interests but also those of the customers.
If a scheme is led by an operator within a properly thought through engineering and logistical plan, which itself is built into the timetable, the unexpected delays and compensation payments can be avoided. I cannot describe the satisfaction of a proper railwayman seeing, after six weeks, the first train go on time, to the right platform, to the right place. It is a culmination of years of work. When we hit that spot, we know that we have done our job properly.
Compensation costs a lot of money. Of the recently announced £500 million increase in costs on the West Coast Main Line—it is now overrunning by £6.3 billion—£300 million is extra money for compensation. We do not buy any extra railway for that; it is compensation. The compensation culture encourages every engineering contractor to build contingency into the cost. That is why the cost of doing the work has doubled since Railtrack became responsible. Yet the present franchising arrangements set tough performance targets which mean the operators must seek compensation to offset penalties.
So what do we do now that Railtrack is unlikely to be the leader in the future on these projects? In my view, major upgradings should be built firmly into the new franchises, placing the major operator in lead position in planning the work with an obligation to take account of the requirements of secondary users.
Within the life of the new franchise it should be possible for timetable planning and performance criteria to be adjusted, which is now very difficult, so that we can accommodate major upgrades and avoid the compensation payments while still holding contractors responsible for overruns beyond the planned time. There is still time to do that because no new franchises have been signed, although Railtrack's position has changed.
So my message to the Government and to the SRA is to take this opportunity of the new franchises and to put the lead operators in charge. To take South West Trains with its plans to goldplate the railway between Surbiton and Waterloo as an example, let it design the timetable because it deals with the customers. That is the way to avoid another Leeds. I beg the Government and members of the SRA to listen, for once, to the views of professional railwaymen.
8.10 p.m.
Lord Woolmer of Leeds: My Lords, it is a pleasure to follow the thoughtful and constructive remarks of the noble Lord, Lord Bradshaw. I start by emphasising how welcome and necessary is the investment of what will probably be, when this massive project is eventually finished, at least £200 million in my estimation in greatly overdue improvements in track, signalling, station platforms and facilities at Leeds.
By common agreement, Leeds is one of Britain's most successful cities, with a powerhouse of financial, legal, print and media services and is now increasing in strength in Internet and IT services. Some 50,000 passengers per day use Leeds railway station. Passenger use increased by 18 per cent in the year 2000 and is forecast to grow by 15 per cent per annum for the next few years. A further 50,000 new jobs are expected in Leeds over the next 10 years, of which some 70 per cent will be commuters. It is essential that rail captures a substantial number of those commuters.
Despite that success story and vigorous city growth, improvements to rail services have effectively been frozen for 10 years because of capacity problems at Leeds, with all the problems that passengers recognise. The £200 million investment programme will be a huge boost to Leeds and the travelling public. However, as I shall remark later, investment in a station is not enough.
I should like to comment briefly on the chaos which has occurred. No one using Leeds railway station in recent months is in any doubt that these have been trying and often traumatic times. Whatever the cause, the effects were devastating over Christmas and in January. However, uncertainties and inadequacies of service remain all too frequent. It is not simply a matter of problems with the rail station.
The published self-assessment by Railtrack makes salutary and astounding reading. In an almost Maoist-like recantation of errors, Railtrack admitted to unrealistic commitments (it was too ambitious about what could be realistically achieved); poor communications within the project team—not even with the right people—and with train operators; insufficient time devoted to managing complex interfaces between contractors; an inability to take on sufficient staff with the necessary skills; using untried new technologies with not enough leeway for installation; and insufficient allowance for a spell of wintry weather that was not all that bad by European standards.
The travelling public of Leeds, West Yorkshire and beyond will take a long time to forget and forgive what was a gross litany of incompetence. However, the problems faced by rail travellers in and around Leeds have not all been caused by the station improvement project. The unsatisfactory franchise and performance of what was Northern Spirit and is now Arriva has brought much misery to travellers. The division between track operators and the rail service operator has all too often been used to blame others for problems rather than to take responsibility.

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From its original award in 1997 the franchise for rail services in the Yorkshire area was not satisfactory. Northern Spirit was never geared up to deliver the promised services. My own inquiries suggest that there has not been a single day since the award of the franchise when Northern Spirit, now Arriva, has operated a full complement of trains. Typically, the average operating capacity at peak times has been only 80 per cent of the capacity needed and promised under the franchise. The result has been cancelled trains and trains with less than a full complement of carriages. That has resulted in delayed journeys, sardine-like packed carriages and unhappy passengers on many services throughout the area.
I am greatly concerned that the new franchise, which I believe is due to take effect in 2003, is properly specified, properly negotiated and properly established. It will cover a wider northern area. There appears to be no timetable in place for the award of the franchise. There seems to be a real danger of slippage in reaching agreements on the proper specifications of the franchise.
The last thing I want to see is the extension of the current franchise on a year-to-year basis. That would simply freeze investment in new rolling stock and improvements. We urgently need much greater investment in areas such as rolling stock if the potential benefits of the Leeds railway station scheme are to be felt. It would be a great irony if £200 million is invested but passengers still experience train cancellation and huge overcrowding but with no improvement in the frequency of services and no new services.
I hope that the Government will have careful discussions with the Strategic Rail Authority. They must ensure that the targets and requirements of the SRA in awarding the new northern franchise match the public transport objectives of the Government. They must also ensure that the big investment in Leeds station does indeed benefit the travelling public in ways that matter; that is, with more, and less crowded, trains, bringing more convenient and desirable rail services which will help to switch journeys from road to public transport.
8.15 p.m.
Lord Shutt of Greetland: My Lords, I, too, thank my noble friend Lord Greaves for initiating this debate. It is indeed interesting and important to note that the noble Lord, Lord Greaves, a Bradfordian, is now a resident of Lancashire and yet he knows from personal experience the problems of Leeds station. The problems are regional and even beyond the region of Yorkshire.
Such problems have affected the regional economy. I acknowledge the expenditure of £165 million, or is it £200 million? When I first started work in Leeds on 1st January 1959, I arrived at Leeds Central Station. Before my time, there was a third station in Leeds. The amalgamation of the three stations was an important feature. It happened in the post-Beeching era when
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perhaps there were 500 trains per day to Leeds. Now there are 900. But such a merger, based on no growth, is certainly no good for today.
We have had almost a year's upset and there is a great temptation to have a good moan. For nearly a month at Christmas and in the two weeks up to 3rd March, 7 per cent of trains were cancelled. Only 75 per cent arrived within five minutes of the book time. There has been insufficient rolling stock because of not being able to get paths to the depot at Neville Hill. Even the West Yorkshire PTA is saying that no one seems to be in charge. At times such as the evening peak when people are tired, there is no one to explain what is going on and how things can be solved. Rainwater has now got into the escalators.
A train which is running 15 minutes late becomes half an hour late because there is then no pathing. We now have a situation where 43 trains have been replaced by buses, with the reduced capacity that that involves. One wonders if there is an over-reliance on a large city such as Leeds. I was interested that my noble friend Lord Wallace of Saltaire referred to Bradford. There is no doubt that were the two stations linked in Bradford, that would have assisted some of the work now taking place in Leeds.
It was good to hear the comments of the noble Lord, Lord Berkeley. We are talking about Leeds and the problems with passenger trains, but we must remember the importance of freight on the railway. The noble Lord, Lord Faulkner of Worcester, referred to the fragmented railway. I shall return to that theme. He referred to his own involvement. When I was a member of the West Yorkshire Passenger Transport Authority from 1987–1990, we were constantly receiving papers seeking funds for Leeds West End. That is really the major aspect of what we are now discussing.
It was good to hear my noble friend Lord Bradshaw speak with experience and expertise about how such large projects may be undertaken. It was also good to hear the noble Lord, Lord Woolmer of Leeds, who, as leader of the West Yorkshire County Council in those lamented times had a pro-public transport position.
It was interesting to hear from the noble Lord that the station has 50,000 passengers each day. Historically I think of Leeds as having a population of 500,000 but the new metropolitan Leeds has more than that. The figure is equivalent to 10 per cent of the city moving in and out of Leeds and the noble Lord is right in saying that there must be a proper set-up from 2003.
One of my concerns, which has not yet been aired and which comes back to the fragmented railway, is the disappearance of the loops. For example, a little over a year ago a new service was opened. The Greetland curve was reopened in order to run trains from Halifax to Huddersfield. It has meant that, because of the refurbishment of Leeds station, trains have been able to go into Halifax, come back out using the Greetland curve and still get to Leeds without using the Leeds/Bradford route. Had the curve not existed that operation would not be possible.

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The Wortley curve in Leeds, which was ripped up, could have been useful. The link between Neville Hill and Beeston, which was also ripped up, would have been useful. It is a great shame that the sectorisation of the railway, the concern about point-to-point and the lack of a regional and national system have manifested themselves in the problems of Leeds. When one thinks of the refurbishment of Leeds station and the way in which it has been dealt, one goes on to think about the refurbishment of the West Coast Main Line. Will nationalisation have to return to the nation's agenda?
8.21 p.m.
Lord Dixon-Smith: My Lords, this has been an interesting debate. I, too, am grateful to the noble Lord, Lord Greaves, for introducing it. It concerns deep management problems which the railway system as it now operates has yet to overcome. I cannot help but feel that not least of the Minister's joys in replying is that he no longer has direct-line responsibility. He may well conclude that that has a certain advantage.
However, if we are having a general tour around the railway system and its history, we must remind ourselves that it goes back a long way. I remember seeing papers in the bad days of Dr Beeching, if one can put it that way, which could have closed down the whole railway system. As each mile of railway track was closed, the overhead costs remained and were transferred to the rest of the system. As the overhead costs remained, every mile of closure made the cost equation worse for what was left. The last mile of track left in the country would have carried such huge overhead costs that no matter how many trains it carried it could not have worked. That is the background to the issue.
I accept that the Leeds station improvement can only be described as mismanaged and a short-term disaster not just for the city of Leeds but for the whole of West Yorkshire and beyond. If the transport system is interrupted, major difficulties are caused. Despite the problems and chaos, I have sympathy with the words of the noble Lord, Lord Bradshaw. I have sympathy with anyone who tries to improve and upgrade a system while at the same time keeping the system running. That is exceptionally difficult.
The noble Lord, Lord Bradshaw, mentioned the Hatfield tragedy, which occurred at just the wrong time and certainly took a considerable amount of Railtrack's management concentration away from what otherwise would have been its major project during the Christmas period. That does not excuse what happened but it is an explanation for it.
I also had considerable sympathy with what the noble Lord, Lord Bradshaw, said about the need to involve operators in the improvements. It may be a small red herring, but I remember going on an official visit to China many years ago. I was astonished to read in the English language newspapers which they thoughtfully supplied—English being the second language in China—that the head of the local section of the Chinese nationalised railway system had been
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got rid of—I do not know whether they shot him—because of an incident such as this. One cannot help but wonder and ask how many heads, so to speak, rolled, even if only metaphorically, as a result of the situation.
As all noble Lords have said, the key fact is that everyone must learn from the situation to try to prevent it happening again. Learning from it is quintessentially a management problem and the only people who will seriously do so are "those who dun it". That is not to say that they should be given the responsibility of doing it again; one might feel that that would not be appropriate. However, it is certain that Railtrack must take the lessons seriously on board. The rail regulators must also examine the position carefully, because if Railtrack is in severe financial difficulties and cannot undertake these tasks, which are dependent on a high level of public subsidy, it is clear that the responsibility must be placed elsewhere.
That would represent a signal and major failure for Railtrack and would not be a satisfactory outcome for it or its shareholders. If it does not learn the lesson rapidly, it will be a remarkable thing.
8.28 p.m.
The Minister of State, Department of the Environment, Transport and the Regions (Lord Macdonald of Tradeston): My Lords, this has been a short but constructive debate, informed by the considerable professional experience of noble Lords. The noble Lord, Lord Greaves, spoke with obvious concern for those passengers and businesses so badly affected by the overrun of the Christmas engineering work. I thank my noble friends and noble Lords for their contributions.
I fully share the concerns about the extent and impact of the disruption which have been clearly articulated in the debate. Indeed, I visited Leeds station to talk to the Railtrack team about the problems they encountered and was close to the other recent problems at Willesden and disruptions at Euston station.
I am encouraged by the emphasis placed during the debate on the need to look forward rather than to recriminate. Much has been said about the mistakes made by Railtrack in carrying out the Leeds First project. The company has rightly stated that the Christmas overrun was unacceptable and has publicly taken full responsibility for that, but with Railtrack we must look to the future. I shall set out how the Government are doing that by working in partnership with Railtrack and other key industry players to ensure that the lessons learnt are applied across the industry to all future major upgrade projects in support of our 10-year plan for transport.
Although delayed, the Leeds First project represents a major reconstruction scheme at one of the main hubs of the national network. It will deliver a bigger and better railway. I understand that the Christmas work was one of its most complex and challenging elements. The £165 million regeneration of Leeds station is, as has been said by noble Lords, the first phase of the

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multi-billion pound East Coast Main Line upgrade planned for the next 10 years. That project comprises remodelling and resignalling works and the enhancement and expansion of the station's facilities and environment; indeed, it is the biggest engineering project in the region for over 30 years.
The scheme's objectives mirror those of the Government's 10-year plan and integrated transport strategy. The aim is to improve safety, reliability, punctuality and comfort, to increase passenger and freight capacity, and, we hope, to transform the passenger experience. The scheme, I understand, will integrate the station facilities with the wider transport needs of the city and the region through proposals for a bus interchange at the station and links to the supertram, to which we were able to give some backing in recent weeks.
The work at Leeds has been planned and managed so that the station can remain open throughout the project. This has been made possible by Railtrack working in partnership with the passenger transport executive and the passenger and freight operators. I am informed that the project will be substantially complete in December of this year.
The intensive engineering works that overran at Christmas comprised the installation and commissioning of new signalling throughout the station; the connection of new tracks and the renewal of existing ones; and the installation of new overhead lines. I was grateful for the perspective on these matters provided by my noble friend Lord Faulkner. The work was delayed. I know that people in the West Riding are hardy, but for four days running the temperature was minus 10 degrees. I was out on the track myself and felt it to the hone. The work was so tightly programmed and resourced that once slippage occurred it escalated. Contractors were unable to achieve the productivity that was originally planned.
Railtrack h as carried out a thorough review of what went wrong and the lessons to be learnt. The company recognises that it was too ambitious as to what could be achieved in 17 days. Future phases will be more realistically scoped. Indeed, the work planned over Easter was completed on time. The shortfall in contractor productivity highlighted a shortage of resources and skills, particularly in overhead line engineering, right across the industry. I understand that operational communications between Railtrack and the train operators have been strengthened as a direct result of the experience at Christmas.
The rail recovery action group, which I chair, has monitored the disruption and the ensuing review conducted with contractors, suppliers, customers and the Strategic Rail Authority. We have learnt some lessons there, too, because our 10-year plan entails many more projects to rebuild and expand the national network. Therefore, we have strongly urged Railtrack to ensure that it applies the lessons to future upgrades.
Last year the Government made it clear to the rail industry that, for example, training urgently needed to be improved by partnership between industry and government. A particular concern was that very few
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rail employees currently gain nationally recognised qualifications. In the four years to June 2000, only 24 national vocational qualifications were awarded to train drivers, with an industry total of just 207 NVQs. That cannot be right for an industry which employs tens of thousands of people. Nor can it be right, as noble Lords have said, that we import welders from Scandinavia, signalling engineers from eastern Europe and, as my noble friend Lord Berkeley said, perhaps people who have to return to India, when we are trying to sort out the skills required for a £60 billion investment over the next 10 years. That is why action is now under way to recruit and train people to run an expanding railway system.
The DfEE, working with my department, the SRA and other key stakeholders has created a framework action plan to help push skills further up the agenda of the rail industry. That plan, which was unveiled by DfEE last week, is a balanced package which aims, among other things, to raise the employer commitment to skills; overcome obstacles to recruitment and labour supply; improve training; and improve skills and quality through externally validated qualifications. The plan will focus on a number of key occupations which the industry has identified as critical. These include drivers, signalling and track maintenance engineers, middle management, planners, graduates and professional staff.
The noble Lord, Lord Greaves, made mention of other huge projects. The West Coast Main Line is the biggest engineering project of its kind in the whole of Europe, and the Channel Tunnel rail link is a £5 billion project. We also have road projects in hand. For transport as a whole, under our 10-year plan the DETR, with colleagues in the DfEE, the DTI and the devolved administrations, plan to meet in the near future to ensure that the 60,000 new transport jobs being created by the 10-year plan can be filled. That will involve the new job transition service to try to link wherever possible the available transport opportunities to those affected elsewhere in manufacturing by redundancies.
The Government are committed to getting the railways back into proper shape and providing passengers with an improved service. During the current spending review period—this is a significant change from the past—transport investment is expanding at 20 per cent a year. This increase in public expenditure will now lever in hugely increased private sector investment through public private partnerships. We have learnt from past problems both in failed privatisations and badly run public sector investment projects. Where projects are complex and long term, or the requirements of ongoing maintenance are as big as the construction project itself, the old relationship of private sector as contractor with the public sector as project manager and risk bearer is not the best way forward.
Our commitment to delivering the rail renaissance was emphasised last month when the Deputy Prime Minister announced a new relationship between the Government and Railtrack. This will enable Railtrack to concentrate on its core business of safely sustaining

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the existing network and improving its asset stewardship while allowing others to participate in the financing of new schemes to enhance capacity.
The new agenda for Railtrack brings more accountability and tougher regulation in the public interest in return for accelerated payment to the company of the £1.5 billion due to it under the Rail Regulator's review of access charges. This establishes key elements of the financial structure needed by the rail industry to accelerate the momentum of our recently introduced 10-year plan. This new pact also paves the way for bringing in third-party finance and project delivery skills to supplement Railtrack, starting with the priority major enhancements. It enables the Strategic Rail Authority to create a new project finance and delivery vehicle, known as a special purpose vehicle (SPV), for the East Coast Main Line upgrade to create valuable new passenger and freight capacity on that key route. That SPV will be led by the Strategic Rail Authority, and its members are also expected to include a project management company, the future train operator, Railtrack and external investors. The new project structure will ensure that the east coast upgrade is delivered and brings together infrastructure and traction providers. It will enable Railtrack to concentrate its efforts more fully on its existing network, which will include the operation of the East Coast Main Line itself during the course of the upgrade.
In the light of its experience at Leeds and Willesden, Railtrack has acknowledged that changes are needed to its relationship with maintenance contractors. It has developed a radical and much more open approach to its suppliers. This has underpinned the development of what it calls "IMC 2000" a new generation of maintenance contracts to replace entirely the ones drawn up in haste at privatisation. The fragmentation of infrastructure maintenance work into 36 separate maintenance and renewal contracts is now being cut down. By 2002, they will be amalgamated into 18 contracts. Those new contracts provide incentives for contractors to do a quality job. In addition to being rewarded with extensions to their contracts, they stand to gain an equal share of any cost saving that they make along the way. The contracts provide Railtrack with increased transparency over maintenance activity, its associated costs and deliverable outputs.
We believe that the new contracts will ensure a more efficient and detailed flow of information about the assets which the contractors are maintaining. That will be linked to the implementation of a new asset management system upon which the Rail Regulator is insisting. The monitoring of the work also benefits from an improved suite of performance indicators covering train performance, track quality and measures of reliability, efficiency and condition of assets.
Railtrack has a vital part to play in modernising the railway. The company now has a financial basis to enable it to plan with some certainty and to concentrate on its core business of safely running, maintaining and renewing the network. Its chief
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executive has made clear that it must focus on improving its customer service by being realistic and by delivering on its promises.
We have put in place the framework to enable Railtrack and all other key industry players to work together to achieve that. We have also put in place, as noble Lords may know, the ability for a public service non-executive director to be appointed. I shall refrain from describing him as a people's director in this context. After the example offered by the noble Lord, Lord Dixon-Smith, of what the Chinese do to those who run their railways, we may be short of recruits if there is any contagion there.
In announcing last month's statement of principles with Railtrack, the Deputy Prime Minister said that in many ways it represented a fresh start for the railways; a re-focussed, re-structured and properly funded Railtrack which still has a vital role to play. The new agreement aims to enable Railtrack to work more constructively with all its industry partners to bring new confidence to the railways and to deliver the standard of service that passengers rightly expect.

Criminal Justice and Police Bill
8.41 p.m.
House again in Committee on Clause 41.
The Deputy Chairman of Committees (Baroness Nicol): Amendment No. 69 has been moved by the noble Lord, Lord Phillips.
Lord Cope of Berkeley: The amendment concerns an important element which was inserted during consideration of the Bill in another place. The lead amendment in the group suggests that the word "victim" in Clause 41 should be replaced by the word "target". I am not over-enamoured with the word "victim" in this particular place, but I believe that the word "target" is worse. Both words are accurate to a degree. I would settle for the word "person". That is not really important. However, there is absolutely no doubt that the people whose protection Clause 41 is aimed at are victims.
The most well-known case recently has been that of Huntingdon Life Sciences. That company is by no means alone. I have had representations, as I am sure have other Members of the Committee, from the pharmaceutical industry, the research defence societies and from all over the scientific world. In addition, I have had representations from the NFU and the Countryside Alliance. The noble Lord, Lord Phillips, mentioned particular representations. All of them say in one way or another, "Look, the way in which these animal rights activists have operated in these different fields, pursuing different causes, is unacceptable". That is the bottom line. That is what the clause is about. The question is how to deal with the matter.

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The noble Lord, Lord Phillips, appeared to be suggesting that the present law was adequate for the purpose and that the only fault was a lack of police. I am sympathetic to the lack of police. We know the figures for the numbers of police, and so on. But the way that these demonstrations supporting different causes, but nevertheless with a common theme of one kind or another, have been pursued in recent years has moved to a new level that is unacceptable.
The specific issue to which the clause is directed is the harassment of a person in his home. It used to be said that an Englishman's home was his castle. However modest his home was, that was where he could go to be private, be himself and not be harassed. That is not true if one is the "target", the "victim" or the "person" concerned of the animal activists.
I said that there are a number of different causes being pursued. That is right. We quite rightly require that all kinds of drugs and other substances should be tested on animals before they are tested on humans; and sometimes at the same time as they are tested on humans. That is a protection for us. It is not done for some reason other than to protect humans. It is to try to protect us when we use cosmetics and when we use drugs and other much more vital things in our lives. We require that protection. It is the law. This Parliament has passed the law to require that.
However, the animal rights activists, or some of them, have deliberately targeted firms which carry out that testing in an effort to try and prevent them from so doing. They not only attack the directors and bosses of the firms: they attack the staff and abuse them on the way in and out of their premises; they follow the directors and the senior staff to their homes; and they also follow the shareholders, the bank people and so on. We have seen that happen not only with Huntingdon Life Sciences but with other firms.
That is one matter. As Members of the Committee will know, this targeting has happened also to farmers when carrying out experiments and trials for the Government in the protection of the public; for example, GM crops. It has happened—maybe more controversially to some people—in the case of hunting. That is a perfectly legitimate activity at the moment. Obviously, whatever happens to the debate about hunting, we have a Bill before us. It is not being very actively pursued just at the moment. Whatever happens about that issue, so long as it is legal people should be allowed to pursue that activity without being harassed in their homes.
Given that this harassment has increased and become more specifically directed at particular people, it is necessary to consider whether the law needs strengthening or whatever it is that needs to be done in order to prevent that activity. That is why I am in favour of the clause as a whole and why I am against the various Liberal Democrat amendments in the group. They attempt in various ways to weaken it. I do not want to go on unnecessarily at this hour of night about the individual details of each of the amendments, but they attempt to insert the words "serious" and "reasonably" and so on in order to lift
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the level of what has to be done to constitute a crime. The most important one is Amendment No. 77 which seeks to insert,
"It is a defence for the accused to prove that his conduct was reasonable".
I am not sure how the court will actually settle on what is reasonable and what is not in the absence of any further guidance. I do not want to get back on to the guidance point. Earlier that caused a little difficulty. The tone of the group of Liberal Democrat amendments is rather similar.
Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way. He asked whether one would need guidance, codes or anything else in order to ascertain what was a reasonable defence. Leaving the matter as broad as that is to leave it to the discretion of the courts—the magistrates' court or the Crown Court. The fact is that that defence is available under all the existing provisions of the Public Order Act. It is designed to prevent the kind of exceptional and abusive case which I am sure the noble Lord would agree is inappropriate. That is why it is a settled defence in the public order legislation. Our amendment simply seeks to bring the same defence into this measure.
Lord Cope of Berkeley: That is a helpful explanation. As always, the noble Lord, Lord Phillips, is doing his best to help us to understand the legal points that are involved. At the same time, the effect of the individual Liberal Democrat amendments and certainly of the group of amendments collectively is to put a higher hurdle in the way of those who would try to use the legislation. The amendments would weaken the effect of the legislation.
By contrast, the three amendments in the group to which my name is attached would strengthen the legislation in very particular ways. Amendment No. 70 seeks to add to the domestic premises,
"any premises or land attached thereto".
The Committee will realise that I have particularly in mind farms. With a farm, it is generally the case that the farmer and often the stockman live on the premises. They do so because that is the best way to run the farm. Farming is an all-consuming business. It is necessary, particularly with stock, to have an expert present 24 hours a day, seven days a week, all through the year because the stock need to be looked after. The domestic premises are therefore intimately mixed up with the land that surrounds them and, for that matter, the farm buildings. It is simply no use protecting the house that is just next to the barn and so on and moving the demonstrators 50 yards down the road. It is just as harassing to have the demonstrators there as it is to have them outside the house itself.
Amendment No. 71 seeks to give protection to the place of work or business or any premises that the victim habitually frequents. It is true, as I said earlier on, that the activists target not only the domestic premises but the work premises of people carrying out legitimate work. They do so not just once or twice but day after day and week after week. They insult the

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people. They do their best to obstruct them and to make their lives as difficult as possible. They do so when those people are carrying out an entirely legal requirement—indeed a statutory requirement—to, for example, test drugs. It is necessary to extend protection to the place of work or business of the victims involved.
Amendment No. 74 seeks to insert the words "or others". It deals with the possibility of alarm or distress being caused to the victim. Where the victim lives in a village the existence of the protesters may not matter too much to someone who lives in a large house with a substantial garden and a good fence and gates. The victim can keep the protesters at a distance. Therefore, it is not so much the individual in the large house who suffers; it is the neighbours. It is they who are subjected to the harassment and difficulty. It is their alarm and distress that we seek to address by means of Amendment No. 74.
The amendments propose three ways in which the provisions of the Bill might well be strengthened. I do not think it is enough simply to deal with the house by itself. Protesters already go to the business premises. In any case, the law needs to remain one step ahead of the criminal. It is important that we take action to protect these people. Of course it is true that there is existing law on the issue and of course it is true that the police have had insufficient resources for or have given insufficient priority to protecting some of these victims. Nevertheless, the Government have come to the view—I agree with them—that it is also necessary to strengthen the law. That is what Clause 41 seeks to do and our amendments seeks to take that a notch or two further.
Lord Monson: Although I have not had much time to study the amendments, perhaps I may, as a mere layman, try to steer a middle course between the views of the noble Lord, Lord Phillips, and the noble Lord, Lord Cope. I think that I shall be sailing slightly closer to the point of view of the noble Lord, Lord Cope.
The noble Lord, Lord Phillips, made out a good case for Amendment No. 69—at least a good case for getting rid of the word "victim". Whether "target" is right, I am not sure, but it is certainly preferable to "victim". Unlike the noble Lord, Lord Cope, I thought that the noble Lord made a good case for Amendment No. 77. However, like the noble Lord, Lord Cope, I do not agree with his other amendments. They would water down the clause too much.
As the noble Lord, Lord Cope, pointed out, it is not just the target/victim who is at risk; it is the neighbours and the wife and children of the target. We are not dealing on the whole with gentle, vegetarian, sandal-wearing demonstrators; we are dealing with hardcore terrorists. These people have committed arson and grievous bodily harm. Only by the grace of God have they not been responsible for murdering anyone yet. They have attacked people with baseball bats. As a schoolboy, I lived for three and a half years in the United States. I am well aware of how lethal baseball bats can be. In 1943 there was a terrible race riot in
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Detroit. Thirty-four people were killed in that riot, of whom 31 were beaten to death with baseball bats. That is the kind of thing the animal rights fanatics have started to do to employees of Huntingdon Life Sciences.
Time is not on our side. We have to get this clause into law as soon as possible. There may be a case for accepting one or possibly two of the Liberal Democrat amendments but I feel equally that the strengthening amendments proposed by the Conservatives should be accepted. I hope that we shall hear encouraging noises from the Minister.
9 p.m.
Lord Renton: Perhaps I may say how much I agree with what the noble Lord, Lord Monson, has just said. Before I go any further, I should like to express my thanks to the noble Lord who agreed that we should adjourn the discussion on Clause 41. We are now able to have a much more thoughtful and relaxed discussion than if we had been pressed to have it before dinner.
I have great respect for my fellow lawyers, the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. They put forward some valuable proposals and I frequently agree with them. However, on Amendment No. 69, I am a little worried. It seems to me that as soon as a target is threatened he becomes a victim. In my humble opinion, one cannot get away from that. Unless there is some purely technical reason with which I am not familiar, I agree with my noble friend Lord Cope of Berkeley that we should stick with "the victim". That makes the position clear.
Clause 41 is a valuable proposal from the Government. However, perhaps we should enlarge it in the way proposed by my noble friend Lord Cope. In saying that, perhaps I may tell the Committee that I was the Member of Parliament for Huntingdonshire for 34 years. We then had a much better Member who became Prime Minister for some 11½ years. I live only a few miles from the Huntingdon Life Sciences research centre. Because I was the local MP, I was consulted when it was first set up.
It struck me then, and it has been confirmed ever since in my mind, that the research centre has carried out valuable research and that the human race has benefited accordingly. So to some extent has the animal population. Some of the remedies produced have been beneficial to animals, just as other remedies have been of benefit to human beings.
I have visited the establishment more than once. Although animals were kept in cages, they were treated properly and well fed. No one was ever cruel to them. When the need came to end their lives to prevent suffering, they were killed and that was that. Quite frankly, I do not consider that more suffering was endured at that research centre than is suffered by animals kept in cages domestically, in people's homes. For those reasons, I think that Amendment No. 71 is of great importance. It would acknowledge the fact that the victim is vulnerable not only in his own home but also at his place of work. I hope that the Government will accept this amendment. Although it

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is slightly less important, I believe that Amendment No. 70 is also worth incorporating into the Bill. So, too, is the relatively minor Amendment No. 74.
As regards the other amendments proposed by the noble Lord, Lord Phillips of Sudbury, along with his noble friends, I have no objection to them. However, I think that we must be very careful as regards Amendment No. 69.
Perhaps I may mention briefly Amendment No. 77, which states that,
It is a defence for the accused to prove that his conduct was reasonable".
I am sure that the noble and learned Lord the Attorney-General will confirm that in nearly every case the prosecution has to prove guilt beyond reasonable doubt. If the defence puts forward the view that the conduct was reasonable, that generally raises a reasonable doubt. For that reason, I am a little doubtful about this amendment. However, there is broad agreement between us and I hope that the Government will bear in mind the valuable suggestions that have been put forward which seek slightly to extend and modify this important clause.
Lord Monson: I think that I am allowed to speak again. I have been slightly unfair to the Liberal Democrats. I forgot to mention Amendment No. 75, which is reasonable. I believe the noble Lord, Lord Renton, pointed out that it employs the word "reasonable" and the remedy proposed is justifiable.
Lord Perry of Walton: I rise to reinforce what has already been said by several noble Lords. I speak as the president of the Research Defence Society. We have an enormous file of incidents which have been reported by fellow scientists. Not only have they suffered insults themselves, but so have their families and children. It is an absolute scandal that nothing has been done so far. We welcome enormously the clauses contained in the Bill.
Many animal experiments are carried out because the law requires that such experiments are undertaken. They are not carried out on the spur of the moment. I hope that the Government will reject all the amendments which seek to weaken the proposals in the Bill and stand by what they have put forward.
Lord Davies of Oldham: This has been a most interesting debate, although it was punctuated by a gap of one hour as the result of the intervention of dinner. However, as the noble Lord, Lord Renton, pointed out, we probably benefited from taking some refreshment before coming back to the fray on a clause which is of great importance. Every noble Lord who has spoken in the debate has indicated that.
I had thought that out of the division of the enemies might come the safety of the state, as it were. The collision of viewpoints expressed so articulately by the noble Lord, Lord Phillips, before dinner and then refuted by the noble Lord, Lord Cope, after dinner as regards the perspective of the clause might have
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provided a middle ground which I could usefully have occupied to demonstrate why this clause is so important and valuable.
I thought that I would hear the noble Lord, Lord Monson—who also took the middle ground—being helpful in this respect. I do not think that he was. The middle ground that he occupied was that we should accept all the amendments. The middle ground that I shall occupy, of course, will be to seek to reject all the amendments. So even those of us who occupy a middle position between the stances taken by the two Opposition parties have our different approaches in regard to the clause.
Lord Monson: As a point of accuracy, I suggested that all of the Conservative amendments should be accepted and some of the Liberal Democrat ones.
Lord Davies of Oldham: I accept that point. I was merely emphasising that, on the whole, the noble Lord was more sympathetic to the amendments than. I shall prove to be—not surprisingly.
I welcome the fact that all Members of the Committee who have spoken in the debate have put the clause into the context of the recent difficulties which have arisen. I am grateful to the noble Lord, Lord Perry, for identifying the threats to our scientific research represented by the activities of certain sections of animal liberation organisations. Those activities have brought into jeopardy the essential medical and scientific work which we all know is necessary for the good health of the nation and, in some respects, an even greater good than that.
The amendments raise issues of some principle. Certainly those who have advocated the amendments have sought to make that point. As to Amendment No. 69, which was moved by the noble Lord, Lord Phillips, I do not believe that there is benefit in changing the term from "victim" to "target". The term is clearly defined in the clause, so there is no ambiguity in the drafting. We recognise that people who are targeted by groups such as animal rights protestors may not always see themselves as victims—which may imply a sense of helplessness—but they are being harassed. Those who harass, victimise their targets—we should not forget that—and several noble Lords, including the noble Lord, Lord Renton, have emphasised that point.
As the noble Lord, Lord Phillips, indicated, the word "victim" appears in the Protection from Harassment Act. It is simply a convenient way to refer to the person against whom harassment is directed. I do not believe that "target" is a preferable, alternative word. Nothing is prejudiced by the use of the word "victim"; it is a perfectly normal, commonsense way of describing a person outside whose home a protest is being made.
I heard what the noble Lord said in terms of broadening this issue to the question of whether the clause would severely inhibit the rights of investigative journalists. I share with him the concern that we should protect the rights of investigative journalists. In

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some respects, perhaps, society could do with some enhancement in so far as that kind of journalism is rather less in evidence in the present decade than it was perhaps 20 or 30 years ago.
But I do not think that that issue arises here. As the noble Lord will recognise, journalists are employed to do a job and they are answerable to their employer for the way in which they conduct that role. The Press Complaints Commission sits as an important arbiter and controller of the way in which a free press carries out such actions in terms of investigative journalism. I do not believe, therefore, that the issue of a police constable coming in to interfere with the rights of journalists "doorstepping" in those terms will be a likely occurrence.
We all know that people in the news and public figures will, from time to time, be "doorstepped", and we all know the excessive lengths to which that can go. That is what the Press Complaints Commission is there for, to rein back such activity. But that can be dealt with by other methods and other means related to the activities of journalism; it is not a part of this issue. I do not think that what is proposed in the clause has any direct relationship to that.
The noble Lord went on to discuss the question of whether it may be appropriate for demonstrations to take place outside private homes. Let us be absolutely clear about the clause; it is about private homes. I know that the noble Lord, Lord Cope, seeks to extend it beyond that, but the clause as it stands refers to private homes. That, of course, puts a particular context on the question of harassment because the people affected are not only the individual persons directly involved through their places of work but also their families and, potentially, young children. Such action affects their privacy in a direct way. It is important that we recognise that that has gone on, as the noble Lord. Lord Cope, said, in a particularly offensive way in recent months and years, and it is quite clear that we need to put a stop to it.
Lord Renton: This is the moment to remind the noble Lord that terrorists have attacked people at their places of work more than they have attacked them at their homes.
Lord Davies of Oldham: The noble Lord's point relates also to another amendment standing in the name of the noble Lord, Lord Cope, which seeks to extend the range of the clause.
There are difficulties in extending this provision beyond the private home. We also have to strike a proper balance in terms of the right of peaceful protest. The point was addressed by the noble Lord, Lord Phillips. There is no doubt that protest carried out peacefully and appropriately can and should from time to time be recognised as valid at a place of work. I am drawing a distinction in regard to a private residence, which is what the clause identifies.
Amendment No. 72 would remove from the provision the idea that protesters can cause harassment by their mere presence. All too often we
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have seen apparently peaceful demonstrations outside people's homes. The protesters may hold up placards or photographs, and they may shout out some comparatively innocuous comments. But that feels very intimidating to the people inside, who know the background of the protesters. In recent months it has been known that some animal rights protesters have track records, including the sending of letter bombs and the torching of cars. Activity of that kind is the background against which a group of people gathering outside a private home, given their previous background of action, would inspire proper anxiety in the minds of those inside. Protesters understand very well just how threatening their mere presence can be in such circumstances.
9.15 p.m.
Lord Phillips of Sudbury: I thank the Minister for giving way. I do not quite understand how he is explaining the force of the words,
"by his presence or otherwise",
or their utility, given that the whole basis upon which a constable may issue directions is that a person is present at a home for the purposes described. It is immaterial whether the person is carrying a placard. The provision will lead to confusion in interpretation, particularly before magistrates, as they struggle to understand what the words "or otherwise" are meant to indicate.
Lord Davies of Oldham: I am seeking to establish that the actual gathering of a group of people outside a private home can in itself represent harassment and a potential threat. Therefore, it is important to recognise that it is not necessary for those who are gathering to carry out any particular action; their mere presence will be enough to cause a problem. That is the justification for the position adopted by the Government. That is why we do not want to accept an amendment which appears to remove the concept of harassment if the protesters are merely present but are doing nothing else.
Turning to Amendment No. 75, to require that a direction made by a police officer should be reasonable in its specifications is both unnecessary and unhelpful. The clause already provides that the constable's belief that the victim is likely to be caused harassment, alarm or distress must be formed on reasonable grounds. The test for the constable as to the terms of the direction is a high one. It may include only such steps as he considers necessary to prevent harassment. Adding a further requirement of reasonableness—referred to by the noble Lord, Lord Renton—merely provides an added defence for the accused person. It would mean, for example, that there would be opportunities for complicated and wasteful arguments in court against the constable's action.
As for Amendment No. 77, similar considerations apply to the proposal that we should insert a statutory defence for the person accused of failing to comply with a police direction—the defence that the individual's conduct was reasonable. An offence will

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be committed only where the person concerned knowingly fails to comply with a policeman's direction. The direction will be specific and must be communicated to the person concerned. As I said, the clause already requires there to be reasonable grounds for the constable's belief that the protest will cause harassment and distress. The directions are limited to those considered necessary to prevent that harassment.
Providing a further statutory defence of the kind suggested would negate the whole purpose of this new police power. It would encourage the accused to argue that, notwithstanding the fact that he was causing alarm and distress and that a lawful direction had been given to him, he should still be free to ignore that lawful direction because his actions were, none the less, "reasonable"; in other words, they were reasonable because they relate to the higher purpose of the protection of animals, which might justify such behaviour. We do not accept that a statutory defence along those lines would be helpful to the legislation.
Amendments Nos. 73 and 76, which suggest the insertion of the word "serious" in the places proposed, would present similar opportunities for argument in courts about just how serious the distress or alarm might be. This would make it more difficult for the police to do what we are asking them to do; namely, to protect individuals who are being harassed in their homes, particularly those who suffer the attentions of animal rights extremists. The Government believe that these individuals should have the opportunity to live in their homes, with their families, without having to suffer any kind of alarm or distress, serious or otherwise, from protesters. There are plenty of other ways to hold a peaceful protest which do not involve loitering around a person's home.
I turn to Amendment No. 78. We believe that the maximum penalty for failing to comply with a direction made by a police officer under this clause should be imprisonment. Some protesters are very persistent and will repeat their activities until something is done to stop them. A short term of imprisonment may prove to be the only deterrent for that sort of persistent offender.
I move on to the amendments tabled in the name of the noble Lord, Lord Cope, to which he has spoken. The word 'attached" in Amendment No. 70 is not specific. It could, of course, cover many acres of land; for example, in the case where a person owns a large area of farmland or an estate. In that instance, all the land and buildings might be argued to be "attached" to the dwelling in the sense that the land is contiguous. However, the protesters may be miles away from where the person in question and his family live. Therefore, it could scarcely be defined in terms of direct harassment.
By extending the provision to include a person's work place and frequent haunts, as proposed in Amendment No. 71, the powers given to the police would be taken into a new dimension. If we take that proposal with the suggestion in Amendment No. 74 to include the word "others" among the range of people
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whose alarm or harassment could trigger police use of the powers, one could envisage legitimate use of these powers even when the intended victim and his family were miles away. Such a huge extension of police powers would fundamentally affect people's rights to demonstrate. I hope that the noble Lord, Lord Phillips, will recognise that I am seeking to pursue a course that preserves the right to demonstrate at the appropriate place and in a proper and peaceful manner.
Human rights considerations also apply. Article 11 provides for freedom of assembly, qualified by the need to prevent crime or disorder, or protecting the rights of others—such as Article 8, the right to respect for private and family life. We should have difficulties showing that Clause 41 was acceptable under Article 11 if it were amended in the way proposed by the noble Lord.
The overall purpose of the clause is to give the police powers to stop protesters outside people's houses from intimidating them and their families. The clause as drafted makes a clear link: he police can only interfere with protests—we are talking about peaceful protests because violent or threatening protests are already unlawful under the Public Order Act—where a person's private life is being intruded upon in an intimidating way. The amendments would remove that link and undermine the right to peaceful protest which, as the noble Lord, Lord Phillips, said, is fundamental to a democratic society. I hope that on the basis of what I have said I can persuade the noble Lords to withdraw their amendment.
Lord Renton: Before the noble Lord sits down, I hope I may say that I agree with very much of what he has said. But I must point out that if Amendment No. 71 is not accepted, then, for example, the unfortunate manager of the Huntingdon research station would not have the protection which the Bill would have given if he had been assaulted at his home rather than at his place of work. Perhaps we shall not reach a decision on the matter tonight, but I hope between now and such further stages of the Bill that there may be that the Government will give serious consideration to that factor.
Lord Monson: Before the Minister finally sits down, I urge him to think again about Amendment No. 74. Even if the word "victim" embraces the individual targeted, his or her wife or husband, children, parents who may be living in the house and so on, as the Minister seems to imply that it does—no doubt he will correct me if I am wrong—it does not include neighbours. What happens if the intended victim and his entire family are away on holiday but the protesters do not know that and demonstrate outside the victim's house? They shout, rant and bang drums outside an empty house, not realising that it is empty. I have seen such a demonstration occur in a London street of terraced houses. The neighbours in the houses either side—they were only a few yards away—were

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absolutely terrified. It seems to me that without Amendment No. 74 the police would be powerless to act in those circumstances.
Lord Cope of Berkeley: I support the clause. I do not want to delay the Committee, not least because I support it. However, I do not want the Government to get the idea that this is the end of the matter. As far as I am concerned, the clause is a small step towards the protection of our fellow citizens. It does not deal with much of the unacceptable harassment to which they are subjected. We hope that it will deal with demonstrations at people's homes and with verbal abuse shouted through a loudhailer outside people's homes and with protesters who smash people's windows when the occupants are present. Perhaps it will deal with some of the physical assaults that occur, although there is other legislation to cover that.
However, it does not, for example, deal with the harassment of neighbours or others. Leaflets have been posted through the letterboxes of houses in the vicinity of the houses of people who are being targeted by protesters. Threatening telephone calls have been made to victims' wives or partners or even to their children or to their children's schools. Those situations are not covered by the clause. Nor are such matters as protesters arranging for undertakers to call at victims' houses to collect their bodies. Such situations are difficult to cope with, particularly on the part of victims' wives and families. Protesters have also ordered gravel and rubbish skips to be delivered to victims' houses. All those incidents have occurred to people who carry out research, let alone to farmers and others. Many more have occurred. So this is not the end of the matter. It is a small step in the direction of the protection that we need to consider.
Although the Minister did not mention it, in answer to a Question for Written Answer we were told that the Government have set up a committee under the Home Secretary to consider what further might be required. I do not know how long the gentleman will be Home Secretary, even if the party of noble Lords opposite succeeds in winning the election. Judging by the experience of Lennox Lewis that might not happen; I certainly hope that it does not. But should it happen, we do not know what the future of that committee will be. It has an extremely narrow brief. The committee is directed solely to legitimate animal research establishments but the issue is much wider than that, as I indicated in my opening remarks. I shall not continue at length, but there is a great deal more to do on this issue.
The noble Lord, Lord Perry of Walton, spoke bravely given the attitude of his Front Bench to this legislation. I agree with what he said.
9.30 p.m.
Lord Phillips of Sudbury: Does the noble Lord, Lord Cope of Berkeley, accuse the Front Bench of the Liberal Democrats of being a threatening force?
Lord Cope of Berkeley: I have heard rumours at both ends of the building of harassment taking
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place—not in my party, of course—but we shall leave that for the moment! This is a serious matter. The provision is a step in the right direction but it is only one step.
Lord Phillips of Sudbury: The Minister correctly indicated that he was driving a wedge between the Conservative Front Bench and the Liberal Democrat Front Bench. I fear that the remarks of the noble Lord, Lord Cope, illustrate that.
Almost every instance given by the noble Lord of occasions where the law should come to the aid of those who are harassed is already covered by existing law. If you smash someone's window, that is covered by endless law. If you threaten a person on the phone, in person or in his back yard, that is an offence under Section 4A or 5 of the Public Order Act. The main problem with regard to Clause 41 is to square the perfectly reasonable wish of the Government to deal with certain extremely narrow classes of case which are not covered under existing legislation with the danger that will be created which is untypical and unworthy of our traditions of democratic freedom.
The Minister did not deal with some of the specific examples I gave. I should be grateful if he would consider my example of doorstepping journalists. I think that on advice he will find that as drafted Clause 41 could be used against a zealous journalist pursuing a bold and proper journalistic course.
Lord Cope of Berkeley: I apologise for interrupting the noble Lord. I did not wish to give the impression that the future work which I consider must be undertaken, or the work of the committee set up by the Government, should be confined to considering changes in the law. It must also consider the implementation of the law and how it will be put in practice.
Lord Phillips of Sudbury: I am obliged to the noble Lord for those remarks. They are extremely apt. Many may have misunderstood the noble Lord.
I do not wish to prolong an important discussion. However, on nomenclature, if noble Lords can imagine the woman who alleges rape being described in the legislation as "the victim" before the trial has been heard, they may understand my objection to the use of that word in Clause 41.
I should be most grateful if the Minister would look again at Hansard on Amendment No. 72 and come back with an explanation of the utility of the words,
"by his presence or otherwise".
I am inclined to accept the Government's arguments about the insertion of the word "serious". That would be out of line with other public order legislation, so I am happy to put those amendments to rest. However, on our wish to insert the word "reasonably" with regard to the directions given by a constable, I think that I am right in saying that, whereas a constable must act with good cause or reasonably when deciding whether to issue directions, there is no limitation on the directions that he may issue beyond the subjective

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test that he or she thinks that they are necessary. The word "reasonable" would require some objectivity on those directions. On reflection, the Government may think that entirely appropriate to what they are trying to do.
Over many years on other public order charges Parliament in its wisdom has provided for a defence that the accused's conduct was reasonable. The circumstances in which such public order occasions can arise are so diverse that Parliament has traditionally felt that the court should always have that discretion. For the Minister to suggest that that would let animal rights protestors get away with conduct that would otherwise be criminal by pleading the higher cause of animal rights does no justice to the common sense of magistrates. That defence would be laughed out of court.
It seems inconsistent that more serious offences under Sections 4A and 5 of the Public Order Act 1986 should not carry a possible prison term for a first offence, yet this much lesser charge will give the state that entitlement. Even if the punishment is available for second or further offences, it is not appropriate for a first offence.
Having said all that, I do not propose to divide the Committee, but I hope that the Government will think further about the clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 70 to 78 not moved.]
Clause 41 agreed to.
Clauses 42 and 43 agreed to.
Clause 44 [Addresses of directors and secretaries of companies]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 79:
Page 35, line 38, after "director," insert "shareholder,"
The noble Lord said: I shall not go over the points of principle again. The amendment would extend to shareholders the protection offered to directors and managers in Clause 41.
Your Lordships will realise that there have been many cases of shareholders being equally targeted in cases of harassment such as those that we have been talking about. The Government have recognised that in the terms of the committee that is being set up. In a parliamentary Answer to the noble Lord, Lord Goldsmith, on 26th April, the noble and learned Lord, Lord Falconer, said that the committee would look into the problems with regard to managers or investors. That means shareholders as well as banks and others. I believe that shareholders equally are targets, victims—whichever word one prefers to use.
Perhaps I may say a word in parenthesis to the noble Lord, Lord Phillips. He suggested that it would not be a good idea to insert the word "victim" into the law on rape. I do not believe that it would be much better to insert the 'word "target", which, after all, is the suggestion that he put before us. However, I do not wish to pursue that matter.
Lord Phillips of Sudbury: I am most grateful to the noble Lord for giving way. It is all very well to make a
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little sally and then to say that one does not intend to pursue it. The noble Lord has pursued it, and I shall pursue him. He is my "target". I have no amour proper in relation to the word "target". I should be much happier if the word "person" were used, as is the case in all the other relevant provisions, including those in the Protection from Harassment Act, except in Section 5. However, it was impossible to redraft completely the whole of Clause 41. That is why I came up with the rather lame word "target". I hang nothing on that, but I hang everything on not having the word "victim" there.
Lord Cope of Berkeley: There we are. Now we have some idea of what we shall have to discuss at Report stage, if we reach it. There will he another, more refined amendment from the noble Lord, Lord Phillips.
Be that as it may, Amendment No. 79 seeks to extend the protection to shareholders. Apart from anything else, frequently directors are also shareholders in the same company; indeed, in many cases, that is encouraged. Therefore, if their particulars appear under their listing as shareholders, it is no good trying to conceal them from the list of directors. The same occurs when people are directors of more than one company, as many people are. When their particulars appear in Companies House under "Company A", quite properly and reasonably the other companies of which they are directors must he listed.
Therefore, it is extremely easy to look first at Company A and then at Company B, which may have nothing to do with animal research, and to find a director's home address. That will be the case unless the legislation provides that, if a director is to be given the protection of this clause and is to be allowed to put a service or accommodation address into his listing under Company A, he may also do the same in relation to Company B as a director. That is the point of Amendments Nos. 84, 85 and so on.
Amendment No. 86 concerns the question of timing. As I understand it, this legislation deals only with the entries at Companies House for future years. However, the particulars of those who are already directors, secretaries, or whatever, of companies are already listed at Companies House in relation to previous years. If the provision affects only the future annual returns of a company, it does not appear to provide much protection to existing directors. I believe that the protection must be extended to the previous entries listed at Companies House. Amendment No. 87 seeks to ensure that the provision applies to all companies and not only to the primary company.
I turn to Amendments Nos. 84 to 87. When an individual receives a notice stating that he is to be given such protection and will be allowed to list a different address at Companies House, I believe that that notice should also be given to the company; otherwise, how will the company know that the protection has been afforded to it? As I read the Bill, it does not appear that

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the notice will be given to the company, and I believe that to be a loophole in the provisions as currently drafted. I beg to move.
9.45 p.m.
Lord Davies of Oldham: We believe that Amendments Nos. 79, 81 and 82 which relate to shareholders, are unnecessary. Unlike directors, shareholders do not have to provide their usual residential address for the public record, but they may give a service address. They therefore already benefit from the same protection as the Government propose to give to directors in the Bill.
We believe that Amendments Nos. 84 and 85, which concern the granting of confidentiality orders, are not necessary. Provision is made in new Section 723F(3)(b) for regulations made under new Sections 723B to 723E to contain such incidental, supplemental, consequential and transitional provision as the Secretary of State for Trade and Industry thinks fit. We take the view that ensuring adequate notice to concerned parties of the making of confidentiality orders falls within that power. Our intention is to ensure that notification is given to relevant parties. The point raised by the noble Lord, Lord Cope, will be dealt with in that way.
We believe that Amendment No. 86 is, I am afraid, impracticable and unworkable. I hear what the noble Lord said about the question of the historical record. Companies' existing records are kept at Companies House in a variety of formats, including microfiche and paper. Given those various formats and the volume of documents filed over the years, it would be extremely difficult and time consuming to remove all existing records. There would also be little point because information contained in existing records is already in the public domain. It is widely used by specialist business providers such as Dun and Bradstreet, ICC and Experian.
The Government believe that Amendment No. 87 should not be agreed to. It might at first appear that inclusion of the word "affected" is somewhat superfluous. However, it is in fact needed because new Section 723C(8) defines "affected company" as a company that is required to deliver annual returns to Companies House and one in relation to which the director concerned has provided a service address that satisfies any conditions that may be laid down in regulations.
The Government see no need for Amendment No. 91, which concerns the unauthorised disclosure of a home address that is protected by a confidentiality order. Under new Section 723C(4) regulations may be made restricting the persons to whom, and the purposes for which, the relevant information may be disclosed. The relevant information is defined as information relating to the usual residential address of an individual who enjoys the benefit of a confidentiality order that has been obtained in prescribed circumstances. We propose to prohibit the affected company, by means of those regulations, from
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disclosing information except to persons whom we specified in the regulations, such as law enforcement agencies. A disclosure by an affected company that was not within such a gateway would be in breach of the regulations. Under new Section 723E, the Secretary of State for Trade and Industry is empowered to make regulations that any person who discloses information in contravention of regulations under new Section 723C(4) shall be guilty of an offence. Thus the mischief which the noble Lord seeks to prevent can be dealt with under existing provisions of the clause.
I hope that in the light of that explanation, which attempts to assure the noble Lord that that which he seeks to obtain is already provided for in regulations under the legislation, the noble Lord will feel able to withdraw his amendment.
Earl Attlee: I am confident that my noble friend Lord Cope will expose some glaring weakness in the Minister's argument. But the Minister quoted the legislation and referred to the Secretary of State for Trade and Industry. It is not normal to quote specific Secretaries of State in legislation. Can the Minister explain why we have this change?
Lord Davies of Oldham: I merely referred to the legislation under which the Secretary of State for that department would be empowered to make the necessary regulations.
Lord Cope of Berkeley: The legislation is not specific. It just says, "Secretary of State". As we know, there is more than one and any one Secretary of State can exercise the powers of another. As usual, the legislation does not specify which Secretary of State, though I suppose the Minister is probably right to say that those powers would normally be exercised by the Secretary of State at the DTI but, if necessary, they could be exercised by another.
My noble friend suggested that I would expose glaring weaknesses in the Minister's arguments. I shall resist that temptation, great as it is. Basically, the Minister said that some of my amendments in this group were unnecessary and others his colleague, one of the Secretaries of State, would provide by regulation. I suppose that is something gained. All these points will need to be addressed by the committee of which I spoke earlier and I shall leave it at that for this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Noakes Baroness Noakes moved Amendment No. 80:
Page 35, line 39, after "company" insert "or a member of a limited liability partnership"
The noble Baroness said: In moving Amendment No. 80 I shall, with the leave of the Committee, speak also to Amendments Nos. 83, 88, 89 and 90.
Since the passage of the Limited Liability Partnerships Act last year it has been possible for partnerships to operate with limited liability. The regime set up under the Act, and more importantly the

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regulations introduced under that Act, mimic the disclosure and public record requirements for companies. So members of a limited liability partnership will be required to register their usual residential address at Companies House.
Amendment No. 80 seeks to extend the scope of confidentiality orders under subsection (2) of new Clause 723B, introduced by Clause 44(2) of this Bill, to members of limited liability partnerships so that they too are treated in the same way as directors of companies.
I do not know whether any LLPs have yet been formed under the terms of the Act, but I am aware that one of the major accountancy firms has already announced that it is taking steps to achieve LLP status. Accounting and other professional firms involved with a company that is targeted by animal terrorists are likely to become targets themselves. We have seen in the case of Huntingdon Life Sciences how targeting has grown from the company to its bankers and its brokers. It is unlikely to stop there.
In its traditional form a partnership does not disclose the private addresses of its members. Limited liability partnerships will require those disclosures and hence their members need the protection of Clause 44. That is what my amendment seeks to achieve.
Amendments Nos. 83, 88, 89 and 90 are consequential amendments dealing with the provision of alternative addresses, the effect of the confidentiality orders, the impact on regulation-making powers and an interpretation clause. I beg to move.
Baroness Buscombe: I rise in support of my noble friend Lady Noakes. I had the privilege of taking the Limited Liability Partnership Bill through this House on behalf of the Opposition, as did, for the Government, the noble Lord, Lord McIntosh of Haringey. It was an important Bill and is an important Act. It introduces an important new vehicle into our legislation. I am somewhat surprised that it was not in the Bill. I would be even more surprised, and would go as far as to say that I believe the noble Lord, Lord Haringey, would be surprised, if it were left out of the Bill. I hope that we shall receive a positive response from the Minister to the amendment tabled by my noble friend Lady Noakes.
Lord Davies of Oldham: Perhaps I may say that for once I am able to fulfil the hopes of both noble Baronesses with regard to our proposals. We support the intention behind the amendments. We seek to give the assurance that we can achieve the common objectives we share through a slightly different route from the one outlined in the amendments.
The regulation-making powers are included in new Section 723B to 723F, to which I have already referred in discussing previous amendments. Regulations to be made following the Bill receiving Royal Assent will set out the details of the new arrangements. The Government will also introduce regulations under
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Section 15 of the Limited Liability Partnerships Act 2000, which the noble Baroness, Lady Buscombe, knows well.
The regulations to be made under that Act will extend the provisions of new Section 723B to 723F and the regulations to be made under those sections to limited liability partnerships and to their members. Under the limited liability partnership regulations, a member of a limited liability partnership will be able to apply to the Secretary of State for Trade and Industry for a confidentiality order. In the light of those assurances I hope that the noble Baroness will see fit to withdraw her amendment.
Baroness Noakes: I thank the Minister for that statement. Indeed, I am grateful that the point has been taken. Perhaps I may make two points. First, limited liability partnerships are now a fact of our commercial world. I should like to see them move on to the face of legislation and not be confined to the limbo-land of regulation-making powers, which follows behind. I believe that limited liability partnerships are being forgotten. If that is not so, the Government might have included in the Explanatory Notes that this is how they intend to deal with this problem.
I am grateful for this recognition now. However, going forward one would like not to have to raise limited liability partnerships in any legislation which is akin to Companies Act legislation.
Baroness Buscombe: I echo the words of my noble friend Lady Noakes. There is every probability that limited liability partnerships will become the norm in the commercial world. Therefore, it is a pity that we do not now set a trend by ensuring that reference is made to them on the face of the Bill. Here is a perfect opportunity to do that.
Baroness Noakes: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 to 91 not moved.]
Clause 44 agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 92:
After Clause 44, insert the following new clause—
"PLACING OF ADVERTISEMENT RELATING TO PROSTITUTION
(1) A person commits an offence if—

(a) he places on, or in the immediate vicinity of, a public telephone an advertisement relating to prostitution, and

(b) he does so with the intention that the advertisement should come to the attention of any other person or persons.

(2) For the purposes of this section, an advertisement is an advertisement relating to prostitution if it—

(a) is for the services of a prostitute, whether male or female; or

(b) indicates that premises are premises at which such services are offered.

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(3) In any proceedings for an offence under this section, any advertisement which a reasonable person would consider to be an advertisement relating to prostitution shall be presumed to be such an advertisement unless it is shown not to be.
(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
(5) In this section—
"public telephone" means—

(a) any telephone which is located in a public place and made available for use by the public, or a section of the public, and

(b) where such a telephone is located in or on, or attached to, a kiosk, booth, acoustic hood, shelter or other structure, that structure; and

"public place" means any place to which the public have or are permitted to have access, whether on payment or otherwise, other than—

(a) any place to which children under the age of 16 years are not permitted to have access, whether by law or otherwise, and

(b) any premises which are wholly or mainly used for residential purposes.

(6) In section 24 of the Police and Criminal Evidence Act 1984 (c. 60) (arrest without warrant for arrestable offences), in subsection (2) (offences which are arrestable offences), after paragraph (c) insert—
"(ca) an offence under section (Placing of advertisement relating to prostitution) of the Criminal Justice and Police Act 2001;"."
The noble Baroness said: Amendment No. 92 would make the placing of prostitutes' cards in telephone boxes—a practice commonly known as "carding"—a criminal offence. This is a matter which has long been of concern to residents, local authorities and telephone companies.
The Government issued a consultation paper on the issue as long ago as May 1999. It stated:
"Prostitute cards in telephone boxes are undesirable and a nuisance to local communities. The cards can be offensive, create a bad impression with foreign visitors and can be an inappropriate influence on young people".
I do wish that we would stop using the word "inappropriate" when really the word is "wrong". This is a wrong influence on young people.
"They hide important public service information and can cause serious litter problems. Those who place cards in boxes can be threatening towards the public and local authority cleaning teams. Furthermore, prostitutes' cards represent a cost to phone operators in terms of negative image and lost revenue and require local authorities to incur costs through cleaning operations".
The Government state that the problem is at its worst in central London and in the Brighton and Hove area. I am sure that the noble Lord, Lord Bassam, will be able to inform Members of the Committee of the extent of the problem in Brighton.
I understand from British Telecom that it spends more than £250,000 per annum dealing with this problem which affects more than 1,000 boxes in central London. Cards must be removed from those boxes six days a week and more than 13 million are collected each year. In Brighton and Hove, 250 telephone boxes are affected by more than 1 million cards a year.
The number of cards has grown and the images and the description of the services offered have become even more explicit. The images used on the cards are sordid and people do not want to be confronted by such cards when they simply want to make a telephone call. In central London in particular the cards give foreign visitors a bad impression of this country. The cards are also an environmental nuisance, creating litter when they become detached from the telephone boxes and the so-called carders can become violent towards those who are trying to remove the cards.
As the Government have recognised, the existing state of the law is not adequate to deal with the problem. In their May 1999 consultation paper, they proposed creating a new criminal offence. In December last year, the noble Lord, Lord Bassam, gave further information to your Lordships' House about the conclusions of the Government's consultation and promised to legislate when parliamentary time allowed. The amendments have been drawn to reflect exactly the position taken by the Government in the light of the responses to their consultation document, a position outlined by the noble Lord, Lord Bassam, in December last year. I am delighted to see that the Minister has added his name to them.
Amendment No. 93 would allow the Secretary of State, with the approval of your Lordships' House and another place, to extend the scope of the offence to structures other than telephone boxes. I understand that that is necessary because it may be that the new offence created by Amendment No. 92 will displace the activities of the carders to bus shelters, lamp-posts or other structures in public places.
Finally, I invite the Minister to comment on the progress that is being made with Oftel and the telephone companies to ensure that the numbers advertised on the cards are being disconnected, a matter to which he referred in his statement in December last year. I beg to move.
Lord Faulkner of Worcester: I rise briefly to support the amendment and express satisfaction that it is a cross-party initiative. As the noble Baroness said, the way in which cards are littering telephone boxes is a major public nuisance and an affront to many people. It takes place mainly in London, and in Brighton and Hove, but increasingly in other towns and cities.
Many people find them offensive and many foreign visitors find them mystifying. Indeed, they come to the view that perhaps the telephone boxes are some form of advertising medium for prostitutes. I also read that children, particularly in primary school, collect the cards and exchange them rather like they do Pokemon cards. So it is a huge problem and this is undoubtedly a way in which it can be addressed.
I have two questions which I hope my noble friend will be able to answer. First, the amendment refers to prostitution services. Will it also cover what one might call "related services", or euphemisms for prostitution such as "massage parlours"? Will it still be legal if such cards appear in telephone boxes or other public places?

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Secondly, what has been the response to the question posed on page 13 of the consultation paper produced in May 1999; namely, whether effective legislation against advertising in telephone boxes would result in an increase in street prostitution? That would be a most undesirable consequence of the implementation of this amendment. I am sure my noble friend agrees that it would also be dangerous for the women who take part in prostitution. Do the Government have any alternative ideas to deal with prostitution on the streets if this amendment leads to an increase? For example, have they thought of any other legal ways in which prostitutes can safely advertise their services without causing public offence?
Lord Dholakia: We on this side of the Committee support the amendment. The noble Baroness, Lady Buscombe, is quite right. The amendment is absolutely vital. This is very much an ugly feature of life in this country, particularly when decent people simply want to make telephone calls and, when they enter telephone booths, see the cards that are placed there. Children and women in particular find the cards fairly offensive. This matter has all-party support and I hope that it will become part of the legislation of this country.
Lord Bassam of Brighton: I am delighted that we have reached this set of amendments. Prostitutes' cards in telephone boxes is a matter which has given rise to concern on all sides of the House. When I was leader of Brighton and Hove council somewhat ironically I found myself entirely at one with the changing leaderships of the City of Westminster council, whatever form they took. We jointly campaigned to put into legislative effect powers such as these to outlaw and combat effectively the distasteful business of carding. Strangely, our two boroughs were at one in that joint concern. We, as local authorities, shared what we regarded as good practice in using planning legislation and other ruses to try to tackle the problem. It may be that we were ineffective in that, but at least we tried to tackle it. We now have a proposal which effectively is a joint "handout" amendment, and I am pleased that we have reached the point of discussing it.
This is a particular problem in Westminster and Brighton and Hove. I am grateful to the noble Baroness, Lady Buscombe, for reminding the Committee of the cost to the telephone companies and the environment and the impact on children, young people and visitors of these distasteful cards and their volume. I did not spend my days in Brighton counting these cards. However, if one needs to use a telephone box in the city centre one can hardly avoid seeing the cards. The fact is that they put people off using the telephones.
My noble friend Lord Faulkner asked whether cards which offered prostitutes' services by way of massage parlours and so on would be caught by this measure. According to the term that is to be adopted, prostitution really means any sexual services for reward. The amendment will cover any card in respect
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of which a reasonable person reasonably regards the activity as a form of prostitution or sexual service. Therefore, it should cover massage parlours in the terms in which my noble friend Lord Faulkner indicates.
My noble friend also asked a question relating to page 13 of the report of May 1999; namely, whether we believe that this might encourage more street prostitution. Obviously, one cannot predict these matters; they are not a precise science. There is no evidence to suggest that that will be the case. I believe it is likely that those who seek to avail punters of prostitutes' services will advertise in other perhaps more acceptable ways. I do not want to speculate on what they might be. But we as Government are not in the business of encouraging prostitution. Far from it. What we have tried to do is to support those services that exist in many of our urban areas to try and help people in the sex industry get out of the world of prostitution and lead a more constructive and gainful existence.
We have set up prostitution projects to see what works in tackling prostitution. Through these projects we are looking to help prostitutes formulate exit strategies away from that business. Many of these concerns and considerations have been raised this week with the sad and tragic news of the death of Monica Coghlan, who was clearly caught up in that business. That has highlighted again the distasteful side of it. We need to do more; and the Government are strongly committed in that direction. I hope that has answered the points of the noble Lord, Lord Faulkner.
The noble Baroness, Lady Buscombe, raised an important point relating to Oftel. There have been many discussions. The Councils have had discussions with Oftel. I can remember a long time ago scripting letters to Oftel asking it to take responsibility in this field. The amendment is just one part of tackling the larger problem. There are other measures that can complement legislation.
My understanding is that Oftel has had discussions with the telecommunications industry about a call-barring scheme. Some progress has been made in that area. I am told that it is not a simple business. It needs to be developed. I hope that it can be. There will be further consultation with the industry following legislation in this area because schemes such as call-barring may play an important part in it. But it is not easy. It touches on the human rights of the individual who really should have access to telecommunications systems. So it is not a simple issue, but we need to make more progress.
I believe that these measures are right. The all-party support that exists for them is a measure of the strength of opinion in these matters. They will help prevent a nuisance in many of our city centres. I doubt whether the nuisance will long be confined to Westminster and Brighton and Hove. I am told by my colleagues in another place that their town city centres are increasingly being afflicted by the arrival of cards peddling this business and trade. After all, it is the oldest trade known to man.

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I am grateful to the Opposition for tabling the amendment. I am happy to put my name to it. I am confident that the words are right. I am delighted that we have had all-party support for these amendments.
Baroness Buscombe: I should like to pick up on a couple of points made by the noble Lord, Lord Faulkner of Worcester. I agree with the Minister with respect to the terminology used in the amendments. On these Benches, it is our hope that other kinds of activities which are not blatantly prostitution, as it were, on the face of these cards will be caught under subsection (3). That states:
"In any proceedings for an offence under this section, any advertisement which a reasonable person would consider to be an advertisement relating to prostitution".
We all have a good idea of the kinds of activities—be it saunas, massage or whatever—that would pertain to that and therefore be caught. At the risk of putting a dampener on the proceedings, I hear what the noble Lord says with regard to this proposal perhaps meaning a possibility of deflecting the problem from the phone box and on to the street, but, personally, I doubt that very much. What I fear—this is a matter that we shall all have to think about and indeed are already in terms of prostitution and pornography—is the use of the Internet for reaching out to potential clients. That is a problem, particularly with regard to young people. I need not expand on that point.
I do not think that we have closed off the problem. We have possibly moved it to some extent. But I think that we have been right. We should not be put off or be defeatist on this issue. We should not think that it is better to let the problem continue because we might produce another problem somewhere else. This is the right step to take. I raised the issue at Second Reading. I feel quite passionately about it. I am glad that the Government have added their support to our amendment. I thank the Minister for his response.
On Question, amendment agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 93:
After Clause 44, insert the following new clause—
"Application of section (Placing of advertisement relating to prostitution) by order to public structures
(1) The Secretary of State may, by order, provide for section (Placing of advertisement relating to prostitution) to apply in relation to any public structure of a description specified in the order as it applies in relation to a public telephone.
(2) In this section—
"public structure" means any structure that—

(a) is provided as an amenity for the use of the public or a section of the public, and

(b) is located in a public place; and

"public place" and "public telephone" have the same meaning as in section (Placing of advertisment relating to prostitution).
(3) At any time when an order under this section has effect, the reference in section 24(2) of the Police and Criminal Evidence Act 1984 (c. 60) to an offence under section (Placing an advertisement relating to prostitution) of this Act shall be construed as including an offence under that section by virtue of the order.
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(4) The power to make an order under this section is exercisable by statutory instrument.
(5) No order may be made under this section unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament."
On Question, amendment agreed to.
10.15 p.m.
Baroness David Baroness David moved Amendment No. 94:
Before Clause 45, insert the following new clause—
"REPEAL OF S. 14 OF THE CRIME AND DISORDER ACT 1998
Section 14 of the Crime and Disorder Act 1998 (c. 37) (local child curfew schemes) is repealed."
The noble Baroness said: Amendment No. 94 is the first amendment in a quite large grouping. The grouping includes Amendments Nos. 94, 94A, 94B, 94C and 94D, the Question whether Clause 45 shall stand part, and Amendments Nos. 144 and 145. Amendment No. 94 stands in my name and I have given notice of my intention to oppose the Question that Clause 45 stand part of the Bill.
All the amendments deal with child curfews, a subject which we have not discussed before this evening. I raised the matter at Second Reading and queried whether the provisions of the Bill were consistent with the Human Rights Act 1998. The Minister states on the face of the Bill that in his view it is compatible with convention rights. However, since the Second Reading debate, the Joint Committee on Human Rights has met and its report was published last Thursday. Paragraphs 52 to 57 of that report raise a number of points of concern. I am glad that we had a discussion on the Joint Committee a little earlier this evening, with the noble Lord, Lord Lester, taking a prominent part.
The report notes that the Government have consistently described the purpose of the child curfew schemes as being to prevent children and young people from engaging in criminal or anti-social behaviour. Yet that is not written into the Crime and Disorder Act 1998, which Clause 45 seeks to amend. I shall quote from the report. Paragraph 54 states:
"The Government's purpose in introducing the power to make child curfew schemes was to prevent young trouble-makers from gathering regularly to commit crimes and cause disorder. However, neither section 14 of the 1998 Act nor clause 45 of the current Bill specifies that the power is to be used for that purpose. Furthermore, the legislation restricts the freedom of young people whether or not the individuals have committed, or are likely to commit, any offence, or have caused or are likely to cause disorder: the restriction is imposed on an area, not on individuals. Finally, a child or young person is liable to be taken into custody by a constable and taken home simply as a result of being in a place at the wrong time. The legislation does not require that the constable should believe or suspect that the individual has behaved, is behaving, or is likely to behave in a criminal or disorderly way".
Paragraph 55 states:
"It is at least arguable that child curfew schemes interfere with human rights in three areas: the right to liberty; the right to privacy, or respect for private life; and the right to freedom of association and peaceful assembly. Children and young people are entitled to the right to privacy … the right to freedom of association and peaceful assembly, and the right not to be arbitrarily deprived of their liberty".

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Paragraph 56 states:
"We attempted to evaluate the proposed extension of child curfew schemes in the light of these human rights concerns. The cogent explanation of the purposes and operation of the schemes provided by the Government's response persuaded us that individual child curfew schemes may be capable of being justified as being for legitimate purposes … and that the powers of the police were intended to help to divert children and young persons away from the criminal justice system. However"—
this is important—
"given the existence of other wide powers available to the police to protect young persons and to maintain public order, child curfew schemes may be disproportionate interferences with rights, in that they may not be the least restrictive measures necessary to accomplish the objectives set out by the Government. We accept that the making of individual schemes, and the exercise of the powers of the police and other officials in relation to them would be unlawful if they do not comply with the requirement of Convention rights, but the same is not true of non-compliance with the ICCPR and CRC which do not form part of national law".
Paragraph 57 is very important:
"We recognise the importance of the Government's aims. However, we remain concerned about the proportionality of child curfew schemes, especially considering the extent of the discretion given to individual constables where a scheme is in force, taking account of the other powers available to the police to protect children and young persons and to prevent disturbances in public places. We consider that safeguards are needed against the arbitrary exercise of powers to make and operate these schemes".
I think that this is very important and that the Government should pay attention to what has been said by the Joint Committee on Human Rights. I hope that, when the Minister responds, he will say what he believes to be the status of the Joint Committee and what responsibility have the Government to comply with its decisions.
My amendments offer two possibilities. Amendment No. 94 seeks to repeal Section 14 of the Crime and Disorder Act 1998. That would mean that the curfew scheme for 10 year-olds would go and, therefore, that that section could not be amended. My second amendment seeking to delete Clause 45 would delete the arrangements for those aged up to 16, but it would also allow the curfew for 10 year-olds to remain. It is my hope that no curfews will remain. I do not believe that they are necessary when the police have other powers. I do not like the idea of curfews and I think that a great many people would agree with me on that.
The Minister may not agree, but I feel that he must go some way towards complying with the Joint Committee. I hope that, when he comes to reply, he will respond in a hopeful manner, at least so far as I am concerned. I beg to move.
Lord Dhollakia: I support Amendment No. 94 as well as the proposal that Clause 45 should not stand part of the Bill. I had asked that my name be associated with that of the noble Baroness, Lady David, in her Amendment No. 94. Unfortunately an omission was made by those responsible for preparing the Marshalled List. However, I wish to assure the noble Baroness, Lady David, that she has my full support for all that she has said.
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I should like to speak to Amendments Nos. 94B, 94C and 94D tabled in the name of my noble friends Lord McNally and Lord Lester of Herne Hill. We support Amendment 94 which would repeal Section 14 of the Crime and Disorder Act 1998. Section 14 provides that local authorities and police forces could apply to the Home Secretary for approval to introduce a local child curfew scheme requiring children under the age of 10 to be at home after a specified time. That power has never been used, which indicates that the police and local authorities can see no point to it.
That is hardly surprising. If a child under the age of 10 is roaming the streets at night in a situation where he or she is clearly at risk, the police already have powers to take the child home or to a place of safety and to investigate the situation. On the other hand, if a group of children are playing football behind their houses at five past nine on a light summer evening, it does not seem a sensible use of police time to sort out the nine year-olds from the 10 year-olds in order to take the former home. We therefore support Amendment No. 94, which would repeal this ill-conceived measure.
However, far from admitting their mistake and repealing the measure, the Government have reacted to the fact that the current power is pointless and unused by proposing to extend it to cover children up to the age of 16. This would impose severe restrictions on the overwhelming majority of law-abiding young people and their parents. Many such young people go out in the evening to a wide range of activities, including sporting activities and training, youth activities and simply going round to each others' homes. If a curfew were imposed prohibiting young people from being on the streets after nine o'clock, they would be unable to take part in any activities which involved them coming home after that time. A single parent with two or three children each going out to different activities would be unable to let them go unless she was able to collect them all personally. This is simply not practicable.
Not only is this draconian and unreasonable, the evidence suggests that it will do nothing to reduce crime. When I spoke during Second Reading, I cited the research in the USA which had shown that the fall in youth crime had been no greater in areas which operate child curfews than in those which do not. Indeed, in the longer term curfews could be counter-productive in the fight against crime because they would prevent young people from taking part in many constructive organised activities and young people who take part in such activities are less likely to get into trouble with the law than those who do not. We therefore oppose Clause 45 of the Bill which seeks to extend an idea which clearly has failed and which is a distraction from more constructive measures which could genuinely make a difference to youth crime.
Many Members of the Committee and of the other place disagree with the Minister and do not see this extension as an improvement. In fact, many Members and NGOs, including Justice and Liberty, have called the original provision disproportionate to and incompatible with the Human Rights Act, as the noble

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Baroness, Lady David, pointed out. Notably, in an important letter to the Home Secretary, the Children's Rights Alliance for England wrote:
"We hope that the Government will quietly discard the idea of child curfews once and for all. They lack professional support. Parents and young people see them as unfair and an infringement of basic civil and political rights".
Liberty expressed concern in respect of the previous legislation as to the compatibility of any such order with the Human Rights Act, and in particular with Articles 5 and 8 of the convention, again a point made by the noble Baroness, Lady David.
Given this objection and the concerns raised by Members of this House and the other place, the Joint Committee on Human Rights paid particular attention to this clause. I am delighted that its report is now available. The Joint Committee obviously remains very concerned about proportionality and I shall be delighted to hear the Minister's view on this point.
In essence, if the law has not been used, I do not think we require a further extension of it in relation to another age group. I support the amendment.
Lord Cope of Berkeley: The noble Baroness, Lady David, seeks to delete all the local child curfew schemes. As the noble Lord, Lord Dholakia, pointed out, there have not been any yet and so it cannot be considered all that radical a move. Nevertheless, it is interesting. The noble Baroness also opposes that Clause 45 should stand part of the Bill.
This clause somewhat laughingly describes its purpose as an extension of these schemes. As they do not so far exist, it is not much of an extension.
Baroness David: There is a child curfew scheme in the Crime and Disorder Act for up to 10 year-olds. That is already in law.
Lord Cope of Berkeley: I realise that it exists in law. But it does not exist in practice; there have not been any such schemes implemented so far and, as far as I know, there is none under consideration. In that sense, although the scheme exists in law, the effect of the noble Baroness's amendment would be limited.
It seems to me that schemes for children up to the age of 16 would be less likely to be made than schemes for younger children. It is more appropriate to use such schemes for young children, and to confine them with a curfew up to nine o'clock, than it is to extend them to older children. So the Government are moving in an odd direction.
Another important point has been referred to; namely, the report of the Joint Committee on Human Rights, to which the noble Baroness drew attention. I shall not dwell on it as she explained its contents. Our Amendment No. 94A is an attempt to bring the so far unused Section 14 of the Crime and Disorder Act into line with the suggestions of the Joint Committee on Human Rights.
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I appreciate that amendments tabled by the Liberal Democrats attempt to do the same but with slightly different wording. I do not know whether our wording or theirs is to be preferred from a legal point view. Either way, we are attempting to bring the clause into line in accordance with the recommendations of the Joint Committee. That seems to me desirable if we are going to bother to continue this power at all given that it seems to be just a waste of space on the statute book.
10.30 p.m.
Lord Bassam of Brighton: Clause 45 increases the maximum age of children who could be covered by a local child curfew scheme from nine to 15, and Clause 46 allows the police to propose a local child curfew scheme.
The local child curfew scheme for children aged nine and under was introduced in Section 14 of the Crime and Disorder Act 1998 and has been in force since September of that year. The scheme allows a local authority, after consultation with the police and other appropriate local bodies and following confirmation from the Secretary of State, to set up a scheme under which it can ban children up to the age of nine from being out late at night (for a specified period between 9 p.m. and 6 a.m.) otherwise than under the control of a responsible adult.
The local child curfew scheme aims to tackle the problem of children and young people being unattended on the streets late at night, where they are at risk of becoming involved in anti-social or criminal type behaviour, and where they are also at risk from older peers encouraging them into criminal activities, or from adults such as pimps or drug dealers.
No local authority has applied to the Secretary of State to set up a local child curfew scheme. Following consultation with the police and local authorities we believe that a major reason is that the age range was too narrow given that children out on the streets are often aged 10 or over. The clause seeks to remedy this by increasing the flexibility of the schemes. It makes them more capable of playing a useful part in local crime and disorder reduction strategies.
I read with interest the report from the Joint Committee on Human Rights, and I have listened carefully to the exposition given by the noble Baroness, Lady David. I am pleased to note that the committee is persuaded that individual child curfew schemes may be capable of being justified as being for legitimate purposes—particularly for the protection of children and young people.
I note the committee's concerns about the proportionality of child curfew schemes. However, no scheme will be approved by the Secretary of State unless a clear case has been made demonstrating that such a scheme is necessary, right and proportionate in a particular area to tackle the problem of youth crime and general nuisance and also to protect children from being drawn into potentially dangerous situations.
The legislation does not criminalise children. Instead, it provides for the possibility of children being taken home from places where they are at risk in

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certain circumstances and at particular times. It is a specific response to problems in particular trouble spots and simply allows a police officer to take a child home or to a place of safety if the child appears to be at risk of being encouraged into crime or at risk from others, such as pimps or drug dealers. That is a major consideration. There is no question of taking every child home who is found to be in breach of a curfew—particularly if he or she has a legitimate reason for being there and is not causing a nuisance or appearing to be at risk. New guidance will be issued to coincide with the launch of the scheme in which the criteria by which the Secretary of State will assess proposed schemes will be clearly set out. That will include the aims at which the scheme is addressed.
I turn now to the various amendments in this grouping. Amendment No. 94 would have the effect of abolishing the local child curfew scheme. Amendments Nos. 144 and 145 will have the effect of bringing the changes introduced by this Bill into force on Royal Assent and of limiting their effect to three years from that date. Complete abolition of the scheme would leave the police with no clear powers to take children home in particular trouble spots where they might be at increased risk of being encouraged towards crime, or where they faced risks from others.
Restricting the changes to the scheme introduced in this Bill to three years from the date of Royal Assent would, in our view, not be right. Statutory provisions are not normally time limited. Further, these provisions will give important additional powers to those responsible for protecting children and local communities. It would not be right now to say that these will no longer be appropriate in, say, three years' time: on the contrary, there is every reason to believe that they will be. They should remain available for use in local areas, where appropriate.
It would also not be right to bring such changes into force on Royal Assent. Before bringing these provisions into effect, we intend to issue guidance to the police and local authorities about the changes that they introduce to ensure that those who will use the scheme are fully informed about how they will work. For that reason, we believe that it is appropriate for there to be a delay between Royal Assent and the provisions coming into force. Our intention would be to make use of that delay by consulting and getting the guidance absolutely right.
In a recently circulated briefing, the Local Government Association, which obviously has important views on the matter, acknowledged that the extension of the scheme to under 16 year-olds may make curfews more appropriate and acceptable to everyone for use by local authorities and the police. That is a most important consideration.
Amendments Nos. 94A, 94B, 94C and 94D would appear to have been tabled as a result of the recommendations from the Joint Committee. Amendment No. 94A would prevent the Secretary of State from approving a child curfew scheme unless satisfied that it would help to avoid disorder or prevent the commission of offences by young people.
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Amendments Nos. 94B, 94C and 94D would have the effect of requiring the local authority or chief officer of police making a curfew scheme, or the Secretary of State when approving one, to consider whether the scheme was appropriate and necessary to protect public order,
"or for the protection of children and young adults".
The phrase "children and young adults" is not defined, but we take it to mean people under the age of 16.
We have considered the report and the recommendations very carefully. We also noted the concerns about the proportionality of child curfew schemes. Having taken those points on board, we do not believe that it is necessary to amend the legislation to reflect the aims of local child curfew schemes, which is clearly the intention of these amendments. The Government believe that the local child curfew scheme, together with the amendments contained in the Bill that will increase the age range and allow the police to initiate schemes, will make it one of a useful range of options available for consideration by local areas in their fight to reduce crime. I should stress, again, that that is part of a process and part of a range of options designed to tackle anti-social activity as much as anything else.
It is important that local areas, and the police, fully understand and comply with the aims of the scheme. However, we do not believe that legislation is necessarily the most effective way of achieving; that aim. As I said, new guidance will be issued to coincide with the launch of the scheme in which the Secretary of State will set out the criteria. I wish to make it quite clear that no scheme will be approved unless a clear case has been made demonstrating that it is necessary and that it will tackle a particular local problem.
We oppose these amendments. In a civilised society it is unacceptable to leave children and young people—some of the most vulnerable members of our society—out, alone, on the streets in particular areas where they can easily be at risk of being encouraged towards criminality and anti-social activity and behaviour that is damaging to them personally. We willingly confess that we originally set the age limit too low. Children up to the age of 15 can still be vulnerable and led astray by others. Indeed, that point has often been made in this Chamber in debates on family matters. Those young people are potentially vulnerable to extremely dangerous situations.
We believe that with the changes introduced in the Bill local child curfew schemes are capable of playing a useful part in the future in crime and disorder reduction strategies and we should give local communities the option of applying to set up schemes where they think that that is necessary, right and appropriate. For those reasons it is inappropriate to time limit the new schemes. For all the reasons we have given we believe that it is necessary to amend the legislation. Therefore, we cannot accept the amendment.
Lord Dholakia: Before the Minister sits down, he mentioned that the existing provision for children up

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to 10 years old is far too narrow and that is why it has been extended. Has any research been carried out by local authorities and the police to find out whether the extension up to the age of 16 will be of any use?
Lord Bassam of Brighton: It is difficult to research something which has not been implemented. For that reason the Government favour using pilot schemes. There is some experience in Hamilton, Scotland, where curfew orders of a similar nature have been used as part of local crime reduction strategies. Although I do not have the details of the Hamilton scheme to hand, significant reductions in criminal activity have been achieved in particular hotspots. I accept that that is not necessarily directly applicable to situations where we would like to see curfews apply here. However, the Hamilton experience has informed some of our thinking. That approach should be seen as part of a wider package. I believe that that is how the matter has been approached in Hamilton.
Baroness David: I thank the Minister for his long reply. I also thank the noble Lords, Lord Dholakia and Lord Cope, for their support for my amendment. However, I do not think that the Minister has said why these extra powers are necessary when the police already have powers to remove children from the streets if they are in a dangerous situation. I believe that the extra powers are totally unnecessary.
The Minister has not replied to my question about the status of the Joint Committee on Human Rights. I thought that that was set up as an important committee which would have some power and would be respected by the Chamber. However, it does not appear to have that respect.
Lord Bassam of Brighton: I am grateful to the noble Baroness for giving way. I regret that omission but it was made in the full knowledge that in two previous debates we covered precisely that point. I have given the Government's position. We obviously take great heed of the Joint Committee's reports. It has been helpful to us even at this late stage of this important Bill. It will be important in enabling us to frame not just legislation but also guidance and background material to legislation where important human rights considerations are involved.
Baroness David: In case the Minister did not think that I had listened earlier, I should say that I did hear the earlier debates on the Joint Committee and the points made by the noble Lord, Lord Lester, and others. However, I still do not quite understand what standing the committee has. I thought that it was a new venture which would be paid attention to. However, it does not seem to me that that has been the case, either in this debate or in earlier debates on, for example, restrictions on travel. That was an important matter and more attention should have been paid to it. I am, of course, disappointed with the Minister's reply. As I say, these extra powers are quite unnecessary. There is enough legislation already in this regard. I did not say
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earlier that all the children's organisations are strongly opposed to the new powers which the Government are trying to introduce. I shall consider the Minister's reply and discuss it with many people. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
10.45 p.m.
[Amendment No. 94A not moved.]
Clause 46 [Power for police to make schemes]:
[Amendments Nos. 94B to 94D not moved.]
Clause 46 agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 95:
After Clause 46, insert the following new clause—
"Indecent conduct: children
ENTICING A CHILD TO ENGAGE IN INDECENT CONDUCT
In section 1(1) of the Indecency with Children Act 1960 (c. 33), after "incites" there is inserted "or entices"."
The noble Baroness said: Amendment No. 95 is concerned with enticing a child to engage in indecent conduct. The Opposition first raised this issue in amendments to the Criminal Justice and Courts Services Bill considered by this House last year. On four occasions, both in your Lordships' House and in another place, the Government rejected our amendments to that Bill. They were also rejected in Committee and on Report in another place.
However, the Opposition feel strongly about the matter. We believe that the Government are wrong to resist our amendments. We look even now for a change of heart. I note that even the Liberal Democrats who voted against our proposals in your Lordships' House last year have now seen sense, if the comments of their colleagues in another place are to be believed.
The amendment is designed to close a loophole in the current law in order to tackle paedophiles who lure or entice young children using Internet chatrooms into meeting them offline for sex. Internet chatrooms can be used positively in order to bring children together but there are dangers for young, impressionable children who use those chatrooms unsupervised. Predatory paedophiles across the world have recognised the opportunity that the Internet has given them to contact children anonymously and at a safe distance and then to build up an online and offline relationship with them for the sole purpose of persuading them to meet in order to engage in sexual activity.
Internet chatrooms allow the predatory paedophile to have invisible access to impressionable children—young teenagers—from a safe distance, allowing contact to be made even while the child is using the Internet in the secure surroundings of his or her own home, often even his or her own bedroom. Once contact has been made the process known as grooming goes on, using e-mail messages, and perhaps over the child's mobile phone. The paedophile might represent

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himself as an older teenager or someone in his very early 20s. For young teenage girls in particular the attentions of someone they believe to be an older boy or young man are especially flattering. They are immediately lulled into a false sense of security although the grooming process can go on for weeks and months as it may take this long for the child to feel comfortable.
At the end of the process, the paedophile proposes an offline meeting. The results of that meeting can be devastating. Innumerable cases of sexual abuse as a result of such meetings have been reported in the press. For example, only last week there was the case of Andrew Hall, a 34 year-old bus driver who posed as a 14 year-old boy in an Internet chatroom. He eventually arranged to meet a 14 year-old girl offline and had sex with her at his home. He was gaoled for 18 months for indecent assault and abduction.
Earlier this year there was the case of Mark Stephens, a 45 year-old van driver who also seduced a 14 year-old girl he met in a chatroom. In the chatroom he had told her that he was 26. Eventually they met and had sex in the van he used for work. He pleaded guilty to indecent assault and unlawful sex. The girl's story was published in a newspaper She said:
"I knew something was wrong when I got in his van but after chatting to hint so much on the Internet he seemed like a friend".
Speaking out about the grooming process, she said,
"He was nice and always asked me how my day was, and what I did at school. He said he liked skiing and he would take me skiing. He asked me for my mobile number so I gave it to him".
Eventually she agreed to a meeting. She said:
"He told me how pretty I was, then opened the passenger door of his van and I got in. I would never have got into a van with a stranger normally but I felt I knew Mark well".
The second time they met he forced her to have sex with him in his van.
That is what can happen and what is happening, sadly, in this country today. But where there is a sexual assault, as in the case I have described, the paedophile can be charged and convicted. But it is at the very least unclear whether the current law in this country affords children the protection they need until an actual assault takes place when they are groomed by paedophiles. The Opposition believe that the addition of "or entices" to the Indecency with Children Act 1960 would offer protection that is not currently available.
I have described two cases in which a paedophile was convicted of a crime, but there are equally well known cases in this country in which the paedophile was not charged. The first relates to a girl known as Georgie. At the age of 13 she began to use Internet chatrooms and became infatuated with an online friend, who told her that he was an older teenager. They began talking on the phone and the relationship took on a sexual aspect. They then arranged to meet without her knowing even what this supposed teenage boy looked like. Luckily, her mother went along as well. It was clear at the meeting that the man was not a teenager, but was middle aged. The mother stopped anything happening, but the police could not take
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action against the man because no physical assault had taken place. Charges of conspiracy to commit an act of gross indecency were dropped.
The second case is that of convicted paedophile Patrick Green. Last year at Aylesbury Crown Court he was sentenced to five years' imprisonment for sexually assaulting a 13 year-old girl whom he had lured into meeting him using an Internet chatroom. However, before his conviction he was released on bail and began to communicate with another teenage girl using a chatroom. He arranged to meet the girl, but was caught red-handed by the police while travelling to meet her for sex. However, because no assault took place, no action was taken against him in respect of the latter girl.
It seems from those cases and others like them that the law offers little protection to children, as a sexual assault has to be committed before charges can be brought. Adding enticement to the 1960 Act would enable charges to be brought in such cases. That would at least remove for a while the threat of the men involved contacting, grooming and approaching other children online.
In a case in which the police are able to intervene after a paedophile has turned up for a meeting but before a sexual assault has occurred, the offence of enticement could be proved relatively quickly and easily with e-mail and other documentary evidence. It would be a strong preventive measure and would send a clear signal to those trying to entice children online.
The Minister may say that the amendment is unnecessary and that the existing law is adequate. That is what the Minister of State said in another place on 14th March. The Home Secretary wrote to my right honourable friend Miss Widdecombe on 8th November last year, saying that the law did not need amending. He wrote:
"We believe that, with respect to the particular concerns … raised, the law already makes this particular misuse of the Internet illegal".
That is what the Government said last year on numerous occasions, including in your Lordships' House. If that is so, why could the police take no action in the cases that I have described?
Finally, the noble Lord, Lord Bassam, argued earlier this year that the proposal would create thought crime. With respect, that is not the case. The amendment would focus on the actions of the predatory paedophile in enticing the child for the purposes of sex. There would need to be documentary evidence. I am told that the experience of other countries, particularly the United States of America, has shown that such an offence has enabled the conviction of adults who are a danger to children rather than allowing them to get away scot free, as happened in the cases that I have just described.
In a Standing Committee in another place, the Minister of State said:
"I acknowledge that we have not yet squared the circle in this area … A great deal remains to be done".—[Official Report, Commons Standing Committee F, 6/3/01; col. 533]

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The Opposition have been pressing the issue for nearly a year. It is important that the law gives the maximum possible protection to our children. Predatory paedophiles must be stopped in their tracks. I hope that the Government will be able to give a more constructive response to the amendment than was forthcoming in another place. I beg to move.
Lord Phillips of Sudbury: I support the amendment. Alternative proposals for amendment were put forward in the other place. My party's proposal was not far removed from that of the Conservatives in the House of Commons. Although we are aware that a major consultation exercise has been taking place for several months with regard to comprehensive reform of the law of sexual indecency and impropriety in this area, and, although in a perfect world one may wish to delay until one has reached conclusions on that and legislated, this appears to be a rather obvious and serious lacuna in the new communications age. Our inclination is to support the amendment as a stop-gap and to hope that it will achieve some restraint on the type of offence which the noble Baroness, Lady Buscombe, has outlined.
The Attorney-General (Lord Williams of Mostyn): I am most grateful for the way in which the noble Baroness has put her case and for the way in which, slightly differently I believe, the noble Lord, Lord Phillips, has supported her. He said—I believe this is accurate—that he was looking for a stop-gap. The noble Baroness asked for a more constructive response. I hope to deal with both those matters.
Were the amendment to be carried, the Indecency with Children Act 1960 would read:
"Any person who commits an act of gross indecency with or towards a child under the age of sixteen, or who incites or entices a child under that age to such an act with him or another, shall be liable".
The last words are very important as a matter of legal construction. I believe that the noble Baroness, the noble Lord, Lord Phillips, and I are agreed on one thing: we all want to protect children in a difficult area. If this amendment brought about that protection, I should be the first to support it. But it does not.
The 1960 Act to which I referred in its relevant parts obviously provides that it is an offence to commit an act of gross indecency with or towards a child. As I read out, it also makes it unlawful to incite a child to an act of gross indecency. For the purposes of completeness, we amended the Act in the Criminal Justice and Court Services Act. Therefore, a "child" is now someone under the age of 16, and the maximum penalty is now 10 years.
As I believe the noble Lord, Lord Phillips, identified, the only question to be asked is: if one adds "entice" to "incite", does that aid child protection? It does not. The courts have held that the word "incites" includes some form of persuasion, encouragement or pressure. It does not matter that the incitement is not
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successful. Therefore, in law, enticement involving some encouragement is simply another form of incitement.
I know that there is always a temptation to look for cosmetic improvements. My unhappy experience—perhaps shared by the noble Lord, Lord Phillips—in the courts has always shown that it never works. First, it is wrong to put on to the statute book something that has no obvious further consequential meaning. It would bring about confusion as to the true meaning of "incite" in the 1960 Act and it could detract from the meaning of "incitement" in other relevant legislation. Therefore, ultimately we would not strengthen the law; we would cause doubt and, thus, weakness.
The noble Baroness asked for a constructive response and I hope to be able to give one, as I do also in response to the shorter comments of the noble Lord, Lord Phillips. We all share concern over the "grooming"—I believe that that was the phrase used by the noble Baroness—of children by paedophiles. Whether it takes place online or offline does not matter. Doing so online is simply a more devious and modern way of bringing about the ignoble purpose. Therefore, we all want to prevent that.
If in the noble Baroness's amendment "enticement" means an encouragement to the child to commit an act of gross indecency, that is already covered by the word "incitement", whether or not—I emphasise this point—the act of gross indecency takes place.
If the amendment were agreed to, it would not catch someone who simply arranged to meet a child. One would have to prove to the usual criminal standard—I stress that—that the "enticement" was to commit an act of gross indecency with the defendant or another. Enticing a child to a meeting would not amount to the offence by itself—that is extremely important. One would still have to prove that the purpose of the enticement was, to quote from the 1960 Act, to,
"commit an act of gross indecency".
I recognise from the serious comments of the noble Baroness and the noble Lord, Lord Phillips, that this is an area that needs serious consideration. However, getting it wrong is no help or assistance to children.
The Home Secretary announced on 28th March a taskforce on child protection and the Internet. That will include representatives from all parts of the industry involved in Internet services, some of which were extremely responsible—I pay tribute to them—in my dealings with them when I was at the Home Office in previous years. Regulatory bodies, children's charities and law-enforcement agencies will be involved. I hope that I am putting this in a helpful way, as the noble Baroness invited me to do. We have invited representatives from both opposition parties to join the taskforce. This matter is much too important to make partisan points—none has been attempted this evening.
We are looking at a proposal that may meet the difficulties that I have tried to identify. I stress that it represents developing thoughts; it is extremely difficult to keep up with technology and new techniques, which develop rapidly. One thought is that a civil injunctive

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order could be hacked up by the criminal law. That might be looked for by the police in respect of a course of conduct online or offline, which would give a reasonable person reasonable cause for concern that any meeting with a child arising from the conduct would be for intended unlawful conduct or perhaps specific types of unlawful conduct. I think that that would meet the danger and fill the gap identified by the noble Baroness and the noble Lord, Lord Phillips. I stress that these are initial developing thoughts. The model comes from the Protection from Harassment Act 1997 and the ASBOs in the Crime and Disorder Act. There is much work to be done in this regard. I do not think—I hope that in saying this I have every care for what has been said so moderately this evening—that the amendment would do any good. It would produce a degree of doubt in courts' minds. We should end up sadly and ironically doing damage to those whom we had hoped to protect.
We need to make the criminal law work and, above all, to make it flexible. Criminals use new tools and devices. The noble Baroness gave the example of a child who was obliged to have sexual intercourse without his or her—in the example, the subject was female—consent. Plainly, on the face of it that involves the sense of rape in any event.
I am grateful that this matter has been brought forward today. It has certainly not been put to sleep on the top shelf. I hope that my explanation, which was longer than I would have intended normally, has proved a comfort to the noble Baroness and to the noble Lord, Lord Phillips.
11 p.m.
Lord Phillips of Sudbury: Before the Minister concludes and the noble Baroness responds, I have a question for him, although it may be unfair at this stage in the development of the proposals. Given the remedy involving a civil injunctive order backed up by criminal sanctions for breach of it, does it currently seem that that approach could be initiated not merely by the police but by, for example, a children's charity?
Lord Williams of Mostyn: I am grateful to the noble Lord for the scrupulous way in which he put that question. It seems to me that there is no reason in appropriate circumstances why that action should not be taken by the police or the Probation Service, if it has a legitimate interest in doing so. It seems to me that a parent or a guardian might have perfectly reasonably grounds for doing so. One wants certainty of protective outcome and flexibility of approach and that is what I tried to describe.
Baroness Buscombe: I thank the Attorney-General for his response to this amendment. I am grateful for his comments. Clearly he accepted our frustration in relation to this grave situation, which is very much on the increase. We feel strongly that something must be done as soon as possible and would welcome the opportunity of taking part in the task force to which the noble and learned Lord referred.
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It is important to find a way to resolve this problem. I accept the point in relation to the word "entices"; it may deflect from the meaning of the word "incites" and create confusion. The Attorney-General understands why we have pressed this matter thus far and why we continue to raise it on different occasions. We would welcome taking the issue further as a cross-party initiative to see what can be done to progress the situation in a short timeframe, working with the different agencies. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 96:
After Clause 46, insert the following new clause—
"POWER TO RELEASE SHORT-TERM PRISONERS ON LICENCE: EXCLUSION
In section 34A of the Criminal Justice Act 1991 (c. 53) (power to release short-term prisoners on licence), after subsection (2)(b) there is inserted—
"(ba) the sentence is for any of the following offences—

(i) an offence under section 89 of the Police Act 1996 (c. 16) (assaulting, obstructing or resisting a constable);

(ii) an offence under section 38 of the Offences against the Person Act 1861 (c. 100) (assault with intent to resist arrest):

(iii) an offence of common assault or an offence under section 18, 20 or 47 of the Offences against the Person Act 1861 (wounding, causing grievous bodily harm and causing actual bodily harm) which was committed against a constable in the execution of his duty, any member of staff of the emergency services in the course of his duty or any member of staff of the National Health Service in the course of his duty,"."

The noble Lord said: Amendment No. 96 relates to the Government's scheme for the early release of convicted prisoners. It seeks to exclude from that scheme those who assault police officers, other emergency workers and the staff of the NHS. The scheme was inserted into the law by the Crime and Disorder Act 1998.
As the Committee may be aware, the scheme allows prisoners sentenced to up to four years in prison to be released two months earlier than the normal half-way point of their sentence. So someone sentenced to three years may be let out after 16 months and someone sentenced to six months may be released after six weeks.
The latest figures show that since the time when the scheme began in January 1999 to 31st March this year—just over two years—a total of 33,737 criminals were released early under the scheme. On average they had received sentences of 14.3 months but had served just 5.6 months in prison before being released: that is, less than two-fifths of their sentence.
Those released on the scheme before serving half their sentences included 67 criminals convicted of manslaughter, eight of attempted murder, 4,443 of wounding, actual bodily harm or grievous bodily harm, 3,090 convicted of burglary, 1,446 of robbery, 4,607 of drug dealing and trafficking, 82 of blackmail, 51 of kidnapping and 1,413 of affray and violent disorder. Those are considerable statistics of serious crime; and there have been, in addition, nearly 1,100

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further offences committed by prisoners released on the scheme during the two months when they were released early, including two rapes and dozens of other serious crimes of violence. That makes 1,100 offences that would not have been committed except for the Government's policy.
The Opposition have consistently opposed this scheme from its inception and over the past two years we have attempted to correct some of its worst defects. We proposed to exclude registered sex offenders altogether from the scheme three years ago. I am glad to say that last year that became law in the Criminal Justice and Court Services Act. So there has been movement by the Government in the direction of this amendment and we are trying to press them further. But so far they have consistently rejected this amendment which seeks to stop the release of criminals who assault police officers or resist arrest and those who assault NHS and emergency service workers.
So far, according to the Government's figures, 15 criminals convicted of obstructing a constable, 14 of assault with intent to resist and no fewer than 290 of assaulting a police officer have been let out under the scheme. Twenty-five further assaults on police have been committed by those released early when they should still have been in prison. The 290 criminals convicted of assault on police received on average a sentence of imprisonment of 4.7 months, but they served just six weeks, or less than one-third of the sentence handed down by the court. Far from ensuring the toughest possible sentences for assaults on police, the Government are making a mockery of the sentences handed down by releasing these criminals before they have served even one-third of their sentences.
That is extremely damaging to the morale of the men and women of our police force whom our Government claim to support. I note that the chairman of the Police Federation recently said that morale is the worst that he has ever seen. There are no comparable published figures for assaults on the other staff I have mentioned, such as ambulance staff, fire crews, nurses, doctors and so on. However, people who assault those staff should also be excluded from early release. It is important for the morale of our emergency service as a whole and of NHS staff that those who assault them should not benefit from this early release scheme.
In the short time available to us outside today's debate we have been able to understand a little of what has been happening with the demonstrations in London. Apparently the demonstrators drew inspiration from the board game, Monopoly. I hope that the Government will respond by abolishing this "get out of jail free" card. If the Government are serious about keeping up morale in the police force, the NHS and the emergency services, they should follow the example they set in the Criminal Justice and Court Services Act and accept the amendment. I beg to move.
Lord Phillips of Sudbury: My colleagues in the other place tabled an amendment to the Conservative proposal before us to include the emergency services and staff members of the National Health Service. I support the amendment which now includes that addition.
Lord Bassam of Brighton: The amendment would create a new clause that would add prisoners who have committed certain specific offences to the list of classes of prisoners ineligible for home detention curfew.
Home detention curfew (HDC) does not work like that and was not intended by Parliament to do so. The list of groups of prisoners currently disbarred falls into five categories, all of which are concerned with risk to the public or risk of breaching the curfew. First, there are those who have previously breached trust; in other words, failed to return from temporary release, been recalled to prison while on licence or breached a previous HDC. Secondly, there are those subject to immigration enforcement action because of the risk of their breaching the curfew conditions in order to evade this enforcement action. Thirdly, there are those who are required to register with the police on release as a sex offender. Fourthly, there are those whom the court considers pose a serious risk of re-offending with a violent or sexual offence and are therefore sentenced to imprisonment with extended supervision. Finally, there are those offenders whose offending was brought about by mental illness such that the court has made a hospital order or something similar on the basis of risk to the public.
Nowhere is any class of prisoner excluded from HDC simply in order to demonstrate society's disapproval of their offence. Given the nature of the amendment, that is an important point to have underlined in this debate. Demonstration of society's disapproval or reprobation is a matter for the court in deciding the nature or length of a sentence. Parliament's involvement is in setting the maximum sentence for any offence.
HDC is not a method of rewarding offenders, to be withdrawn because Parliament does not like the nature of their offence. It is quite the contrary. It is a scheme to aid the reintegration of low-risk prisoners in the wider community by providing greater control during the early transitional phase of release. We would argue that the only criteria should be risk to the public and risk of breaching trust.
Exclusion of those who assaulted a police officer or an ambulance worker or resisted arrest can be explained only in reprobative terms. Such offenders are not, as far as is known, more likely than any others to repeat their offences while on home detention curfew. The court has already considered the need for reprobation in setting the sentence length. It must be borne in mind that those receiving sentences of four years or more are not eligible for HDC.
I have some information on the average sentence for the affected prisoners for resisting arrest. It is apparently at about five months. Automatic unconditional release would take place in any event at

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the half-way point—at two and a half months—under existing legislation passed in 1991 and introduced by a previous Conservative government. Furthermore, it was a release which operates without any form of supervision. That is a distinction between that approach and the approach of HDC. HDC has led to the affected prisoners serving about four weeks of their custodial sentence on curfew instead of in prison, so it is a controlled transition from custody to the wider community.
In reply to the noble Lord's concerns, I would argue that the right approach is to ensure that each and every eligible prisoner who is considered for release on HDC is subjected to a most rigorous risk assessment which will take into account the prisoner's dangerousness, propensity to re-offend and propensity to breach the curfew. That is precisely what the present arrangements do with admirable success.
Only about 30 per cent of eligible prisoners have been released on home detention curfew, showing that the risk assessment is a serious business. Of those, 95 per cent of curfewees have successfully completed the curfew, and of those who have not, a small number have been found to have re-offended while on curfew. As at 31st March this year, 653 of the 33,737 were released on HDC, to which the noble Lord referred, or less than 2 per cent. The noble Lord, Lord Cope, has tabled a Parliamentary Question about home detention curfews which is to be answered soon.
If we were to go along with the course of action recommended in the amendment, the floodgates would be open to further amendments to HDC legislation, which is probably the intention behind the amendment, further narrowing down the range of those offenders who might be included in it. It would exclude any offender whose offence happens to be thought particularly heinous at the time; an offence which perhaps has been highlighted in the popular press and highlighted volubly by those who want to whip up a particular campaign against a particular type of offender.
It would also reduce the number of prisoners eligible for HDC. By how many is hard to determine since our inmate database system does not break offences down as narrowly as the amendment requires. At the last count we estimate that some 259 prisoners have been released on HDC whose index offence—that for which they received the longest sentence they are currently serving—was assault on a police officer, assault with intent to resist arrest or obstructing or resisting a constable. Where the offence was GBH or ABH but the victim was a police officer the index offence might
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be recorded as wounding or ABH with no indication that it involved the police. Therefore, the figures may be far higher. We have no figures for assaults on NHS or emergency service staff.
There will be other prisoners who are serving sentences for such offences but for whom this is not their index offence. They would still be ineligible, but we have no way to calculate the numbers. We believe that it would be inappropriate to extend the list of those excluded from HDC in the somewhat arbitrary way suggested by the noble Lord. Exclusion from HDC is, and, I argue, should remain, based on risk to the public and risk of breaching the curfew, not an arbitrary view perhaps formed in the heat of the moment about a particular type of offence that might render the offender subject to the additional reprobation beyond that inherent in the sentence. It is for those reasons that we must resist these amendments.
Lord Cope of Berkeley: The noble Lord emphasised that the scheme was concerned to minimise risk to the public, but I spoke of the risk to the police, NHS and emergency service workers. The statistics that I quoted were different from those provided by the Minister, and I shall consider that matter further. Just as the Government in the end came round to excluding sex offenders from the scheme, they will come round to proposals of this kind. However, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 97:
After Clause 46, insert the following new clause—
"OFFENCE OF ACTIVITY OF USING CRACK COCAINE
In section 8 of the Misuse of Drugs Act 1971 (c. 38) (occupiers etc. of premises to he punishable for permitting certain activities to take place there)—

(a) in paragraph (c), after the word "opium" insert" or crack cocaine", and

(b) in paragraph (d), for the words "or prepared opium" substitute ", prepared opium or crack cocaine"."

On Question, amendment agreed to.
Lord Davies of Oldham: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-two minutes past eleven o'clock.