Lords Sitting of 8 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 Bradford.

Zimbabwe
Baroness Rawlings Baroness Rawlings asked Her Majesty's Government:
What they are doing with regard to the present developments in Zimbabwe.
Baroness Ramsay of Cartvale: My Lords, my honourable friend the Minister of State, Brian Wilson, summoned the Zimbabwean High Commissioner on 27th April to protest at the war veterans' programme of intimidation and extortion against the business community, with which there is clear official connivance. The targets include businesses from half the countries of the European Union and a transit depot of EU humanitarian aid. My right honourable friend the Foreign Secretary will raise Zimbabwe again at the General Affairs Council next week.
Baroness Rawlings: My Lords, I thank the Minister for that Answer. We have been giving aid to Zimbabwe to the tune of £14 million a year. Nearly £1 million goes to governance and human rights. Who monitors the distribution of the British taxpayers' money? Bearing in mind the amount of corruption in Zimbabwe at the moment, what assurance can Her Majesty's Government give that those funds are not being distributed by Mugabe's cronies? With corruption so rife, have the Government considered targeted personal sanctions such as travel bans on Mugabe and his family and identification of their assets?
Baroness Ramsay of Cartvale: My Lords, we are alive to the importance of targeting the aid where it will be properly delivered and of ensuring that it is the kind of aid which will benefit the people we wish it to benefit. We continue to maintain a bilateral development programme in Zimbabwe, as the noble Baroness rightly said, for which the 2000–01 allocation is around £14 million. That programme is focused on health issues, such as AIDS and HIV-prevention programmes and rural water and sanitation measures along with the reform of local government, governance and human rights. Twenty-five per cent of the adult population are infected by the HIV/AIDS virus and 63 per cent of Zimbabweans live below the poverty line. We have a responsibility to help those people.
A long list of projects was given by my right honourable friend Claire Short on 2nd May in a
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Written Answer, which I shall happily forward to the noble Baroness and also place a copy in the Library. My right honourable friend, in addition to giving the list of the current projects being carried out in Zimbabwe by DfID, said that she continues to keep the Zimbabwean programme under regular review to ensure that it is still effective and appropriate in the current difficult circumstances.
Lord Hughes of Woodside: My Lords, can my noble friend say what is the Government's current attitude towards land reform in Zimbabwe and to the UNDP initiative on land reform?
Baroness Ramsay of Cartvale: My Lords, as my noble friend is aware, we have always said we will support a land reform programme which is transparent, fair and cost-effective and which forms part of a wider Zimbabwean government programme to reduce poverty, as agreed by the Government of Zimbabwe in 1998 at the land conference. However, their present so-called "fast-track" programme does not meet those conditions. We urge the Government of Zimbabwe to take immediate steps to end the illegal occupation of farms and to restore the rule of law.
In relation to the UNDP initiative, we welcome any initiative which encourages dialogue between all stakeholders and leads to a programme based on the principles agreed at the 1998 land conference. The UNDP has now received a response to its letter to President Mugabe and it is in the process of consulting donor countries and donors on the next step.
Baroness Williams of Crosby: My Lords, does the Minister agree that at a time when the whole of democratic institutions and human rights are at stake in Zimbabwe, we must do everything possible to assist those who are battling for those rights, including the Opposition leader, against whom a very dubious case has been brought? We must also recognise the astonishing courage being shown by both black and white judges in Zimbabwe in trying to sustain the culture of human rights and the rule of law.
Baroness Ramsay of Cartvale: My Lords, I could not agree more with the noble Baroness. We are greatly impressed by the courage of both the judges and the political Opposition. We will give our backing wherever possible from the outside, although such backing is unfortunately limited because this is a struggle inside Zimbabwe. The brave judiciary is upholding the finest traditions of sustaining the independence of the judiciary. We, like the rest of the democratic world, are watching with great interest the trial of Mr Morgan Tsvangirai. He achieved what he wanted to happen, the trial having been referred to the Supreme Court. We have full confidence in the independence of the Supreme Court and await the outcome of the trial with interest.
Lord Elton: My Lords, the Government of Zimbabwe made clear their objective of removing white people who own property in Zimbabwe. Is that not a form of ethnic cleansing? When will it be treated as such?
Baroness Ramsay of Cartvale: My Lords, I do not know how I can say more emphatically what I have said from this Dispatch Box and what other Ministers of this Government have said in both Houses. We deplore the violence that has accompanied the occupation of the farms. It is contrary to the land reform process to which the Government of Zimbabwe agreed. We call on the Government of Zimbabwe to end the illegal occupation of the farms and to ensure the enforcement of the rule of law.
Lord Lea of Crondall: My Lords, the noble Baroness, Lady Williams of Crosby, mentioned the position of Morgan Tsvangirai, who, before he became leader of the Opposition, was a trade union leader. Is the Commonwealth engaged in looking at his legal position, including his trial?
Baroness Ramsay of Cartvale: My Lords, the Commonwealth Ministerial Action Group decided to send a three-man ministerial mission, led by Barbados and including Australia and Nigeria, to Zimbabwe. That mission was to visit Zimbabwe in time to report back to the Commonwealth Ministerial Action Group so that the group could make appropriate recommendations to the Commonwealth Heads of Government meeting. In fact, that is dependent on the Government of Zimbabwe receiving the mission. It is up to the participants in that mission, plus the Commonwealth Secretary General—
Lord Peyton of Yeovil: My Lords—
Noble Lords: Next Question!
Baroness Ramsay of Cartvale: My Lords, if the House does not wish to hear the answer in relation to the Commonwealth, that is not giving the matter its due importance.
Noble Lords: Next Question!
Lord Peyton of Yeovil: My Lords, there have been some prolonged Answers. Is the noble Baroness aware—
Noble Lords: Order!
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, the clock says "8 minutes". I believe that the feeling of the House is that we should move on.

Animal Rights Extremism
2.45 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What action they are taking, in addition to clauses in the Criminal Justice and Police Bill, to prevent the Animal Liberation Front from damaging the pharmaceutical industry in the United Kingdom.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, new legislation is being introduced in the Criminal Justice and Police Bill. We have also published a consultation paper on the Government's strategy for tackling animal rights extremism, copies of which have been placed in the Library.
Last week the Home Secretary met representatives of the City and financial institutions to discuss ways of supporting those who have concerns about being targeted by extremists, and a ministerial committee has been set up to co-ordinate work across government to tackle animal rights extremism.
Lord Campbell of Croy: My Lords, I thank the Minister for his reply. Does he agree that the excellent performance of this industry and its valuable exports are still at risk from violent attacks on individuals and their property? Can he confirm that United Kingdom law requires new drugs to be tested on at least two species of mammal before they can be marketed?
Lord Bassam of Brighton: My Lords, I and the Government certainly recognise the value of the pharmaceutical industry. It would be a tragedy if companies were forced to move abroad to continue their research. The pharmaceutical industry has made a tremendous contribution to medical science, to the welfare and health of human beings and to the welfare of animals. On the second question raised by the noble Lord, I am not an expert in such matters. That is beyond my ministerial brief. However, I shall undertake to advise the noble Lord. I am sure that he knows more about this subject than I do.
Lord Mackenzie of Framwellgate: My Lords, does my noble friend agree with me that for the rule of law to prevail in this particular area, as in many other areas where people abuse the right of free speech and the right to demonstrate, more is required than the passing of legislation? Does he agree that the robust enforcement of the law by the police and deterrent sentencing by the courts are also required to make it clear that people who go beyond the rule of law are beyond the pale and that such behaviour is not acceptable in a democracy?
Noble Lords: Hear, hear!
Lord Bassam of Brighton: My Lords, it is evident that your Lordships' House shares those views. I

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certainly do. We believe that the rule of law should be upheld; we believe in effective and firm police action. We have been unstinting in our support, particularly for Cambridgeshire Constabulary. We have provided the constabulary with extra funds, which have been used well. Important protection work has been undertaken with great vigilance and the constabulary is to be congratulated on the way in which it has policed that difficult situation at Huntingdon.
Lord Renfrew of Kaimsthorn: My Lords, is the fact that shares in Huntingdon Life Sciences Company are now not being dealt with by certain financial houses such as, I believe, Charles Schwab an indication of the Government's apparent failure in this area? Is that an indication that the rule of law has not been successfully upheld and that apparently respectable organisations are effectively being intimidated?
Lord Bassam of Brighton: My Lords, I believe that we have been unstinting in our support. As I said earlier, only last week my right honourable friend the Home Secretary met with financial institutions to press them and to ensure that there is support for Huntingdon Life Sciences. It is in nobody's interests that financial institutions should withdraw their support from those lines of scientific investigation and inquiry. I believe that we must continue to give our support, and we want to work with everyone to ensure that they can operate effectively. It is in everyone's interests that they do so.
Baroness O'Cathain: My Lords, is this a case where we should use whatever pressure we have within the European Union to try to do something on a pan-European basis? The financial institution mentioned in my noble friend's question is, in fact, an Irish bank that has now withdrawn its support from Huntingdon Life Sciences, if the Financial Times is to be believed. Perhaps we should achieve a uniform approach to such issues, not necessarily just because of the Huntingdon Life Sciences case, but also for other companies involved in this necessary type of work in the pharmaceutical industry.
Lord Bassam of Brighton: My Lords, ultimately it is for those financial institutions to make their own commercial decisions. The role of government is to encourage and to ensure that we provide the right level of support and commitment. In that regard, we have been doing all that we can. The noble Baroness makes an important point in relation to Europe. I congratulate her on her support for European institutions. I have no doubt that in working across Europe in this area we can bring extra pressure to bear so that we can protect the important work that organisations like Huntingdon Life Sciences carry out.
Lord Dholakia: My Lords, does the Minister accept that there may be areas in which unnecessary testing of animals takes place, particularly by some of the
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pharmaceutical firms? Would it not strengthen our case if those were reduced, particularly those which damage the pharmaceutical industry?
Lord Bassam of Brighton: My Lords, I do not have the statistics in front of me but my recollection is that testing on animals is at its lowest level since 1955. That is as a direct result of government policy. It is our desire to minimise the level of testing on animals and we have carried that through in government.
Lord Cope of Berkeley: My Lords, does the Minister realise that consultations and task forces are one thing but what is required is action?
Lord Bassam of Brighton: My Lords, I do not recall that the previous government were wanting in calling up task forces and taking joint ministerial action when they though that right. No doubt the noble Lord will make a case that it was action. I believe that we have been firm and resolute and have been taking action. That action is demonstrated by our commitment to four crucial changes in the current Criminal Justice and Police Bill which is before your Lordships' House.
Lord Renton: My Lords, does the Minister recollect that last week, during the second day in Committee on the Criminal Justice and Police Bill, it was pointed out to the Government that the head of the research centre at Huntingdon, who was attacked at the research centre, would have been protected had he been attacked at his own home but not at the research centre? Therefore, can the Government point out to the Home Secretary that that matter must be put right before the Bill returns to another place?
Lord Bassam of Brighton: My Lords, I do not believe that ABH travels as an offence; I believe that it is an offence wherever it is committed. We have tried to ensure that Cambridgeshire Constabulary has more than adequate resources to deal with the problem at Huntingdon Life Sciences and we have done exactly that. The Bill tries to provide for an additional range of offences and penalties which can be applied where people pursue directors and so forth to their places of residence. We are intent on doing that and I understood that the noble Lord supported us in that.

Mirror Group Newspapers plc: Investigation
2.52 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury asked Her Majesty's Government:
How they intend to follow up the findings of the report of the investigation into Mirror Group Newspapers plc, published on 30th March.
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, Her Majesty's Government and the relevant regulators are carefully considering what action should be taken in response to the inspector's findings.
On the question of possible director's disqualification against individuals whose conduct is criticised, legal advice is being taken before deciding on whether such proceedings are appropriate. Ministers hope to be in a position to make that decision as soon as possible.
The Independent Company Law Review Steering Group has also been asked to consider the issues raised in the report which are relevant to the work of the review and to make recommendations.
On other regulatory issues, liaison is continuing with the relevant regulatory bodies, including the Financial Services Authority, the Stock Exchange and the Occupational Pensions Regulatory Authority in order to ensure that, where appropriate, progress is made towards implementing the inspector's recommendations. Given the length of time it has taken to produce this report, the Government are keen to see rapid progress made, subject to a careful consideration of the complex issues involved.
Lord Phillips of Sudbury: My Lords, does the Minister accept that there is grave public disquiet about the whole course of the Maxwell affair and public reflection on the fact that effectiveness of the hoards of professionals involved in the affairs of Maxwell appears to have been in inverse ratio to the size of the frauds and the size of their fees?
Given that the report contains 101 recommendations, will the Government contemplate having an annual occasion on which this House and the public can be told what progress is being made with regard to each of those recommendations?
Lord Sainsbury of Turville: My Lords, this is an extremely complicated investigation which involved the interviewing of 180 witnesses. It has taken a long time to complete because it was broken up by the court cases which took place in the middle of it and the difficulties of getting Mr Kevin Maxwell to give evidence. In those circumstances, it has been carried in a timeframe with which one cannot argue and to a cost which is not unreasonable.
Of course, there are many lessons to be learnt and we shall pursue them as fast as possible. The inspectors suggest that a monitoring mechanism should be put in place to ensure that the recommendations are carried through. The department will examine how best that can be done.
Lord Clinton-Davis: My Lords, does the Minister acknowledge the need for all inspectors to be representatives of the Department of Trade and Industry, as was the case in my day? Is it not required
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by the present Administration that there should be an overall view of what the inspectors do, how they do it and when they do it?
Lord Sainsbury of Turville: My Lords, the inspectors have carried out the investigation perfectly appropriately in the circumstances. The fact that one of the inspectors became a High Court judge in no way slowed up the process. Certain questions need to be asked about the length such reviews take, which is why the Secretary of State has initiated an internal examination into whether Sections 432 and 442 of the Companies Act 1985 can be speeded up while still giving careful consideration to the issues.
Baroness Gardner of Parkes: My Lords, can the Minister quantify the exact costs to the public purse of the whole Maxwell issue, not only this report but the legal cases that have been heard? As regards the report, can he tell us whether he believes it would have been shorter had people not been paid on an hourly basis to do it?
Lord Sainsbury of Turville: My Lords, I am sure that I speak for the whole House in saying that it is appalling ever to say anything which might imply that the members of the legal profession could in any way be tempted by such action. The current breakdown of costs shows that the accounting inspector and his team cost £7 million and the legal inspector and the legal costs were £1.5 million, making a total of £8.5 million, excluding VAT. The investigation took a long time and was immensely complicated. It was broken up by the two incidents I mentioned: the court proceedings and the difficulty in obtaining the final evidence from Mr Kevin Maxwell. Taking into account those two factors and the sequence of events, the investigation could not have been undertaken quicker.
Lord Marsh: My Lords, does the Minister agree that the key issue in the case is that over £400 million has been plundered from the pension funds of a series of quoted companies? Regardless of the time taken so far, would it not be indefensible if that outrage went totally unpunished?
Lord Sainsbury of Turville: My Lords, there are two parts to the question. First, the court cases took place and judgments were reached. The inspectors rightly took the view that they should not undertake inquiries covering the same ground as those covered by the court cases. They therefore considered the other issues involved and we are considering and taking legal advice on action which should follow as regards the disqualification of directors.
Lord Northbrook: My Lords, may I ask the Minister whether any Labour Members of this House were involved with the Maxwell companies?
Lord Sainsbury of Turville: My Lords, after 10 years, the inspectors' review is now available to everyone. It

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sets out their views on all those who participated and comments on those whom they believe to be responsible for all these actions.

Nuclear Weapons
3 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Given that their aim of a nuclear weapon-free world would require Trident and its weapons to be destroyed, when and how they envisage this taking place.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, the Government wish to see a safer world in which there is no place for nuclear weapons. Nevertheless, while large nuclear arsenals and risks of proliferation remain, Britain's minimum deterrent is a necessary element of national security. We have made it clear that when we are satisfied with progress in mutual, balanced and verifiable reductions in nuclear arsenals, we shall include British weapons in multilateral negotiations.
Lord Jenkins of Putney: My Lords, does the Minister agree that both policies which the Government claim to support are directly opposed to each other? One policy envisages a considerable spread of nuclear weapons and the other their total abolition. Is not the Government's position in this matter in serious need of clarification? If they have any difficulty in dealing with that question, will the Government approach the noble and gallant Lord, Lord Carver, who has considerable experience in this area?
Baroness Symons of Vernham Dean: My Lords, the noble and gallant Lord has considerable experience in this area of policy and his views are always welcome. We made it very clear when we were elected that we would retain Trident while pressing for progress towards multilateral nuclear disarmament. We have made good our pledge on multilateral nuclear disarmament by abolishing the free-fall bomb in March 1998, by substantially reducing our nuclear arsenal and by greater transparency in our stockpiles of nuclear and fissile material. We have also pressed very hard internationally on this point. I believe that the Government have stuck faithfully to what they undertook to do at the time of the previous election.
Lord Chalfont: My Lords, perhaps the Minister can assist me on one small matter of logic. If someone is against Trident and wants to destroy it, would not one expect that person to be in favour of ballistic missile defence?
Baroness Symons of Vernham Dean: My Lords, we have been clear about what we seek to do in respect of Trident. We have not retained weapons that we do not believe are necessary. That exactly reflects the position
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articulated by the President of the United States only last week when he said that the US deterrent would be reduced to the minimum necessary. As to missile defence, today we receive in London our friends from the United States led by Steve Hadley, Deputy National Security Adviser. We shall further discuss national missile defence during the course of the day, and I hope that we shall then have a clearer view of what the United States is asking us to consider.
Lord Wallace of Saltaire: My Lords, in welcoming the US announcement of substantial unilateral reductions in the large nuclear arsenals which it possesses, I ask the noble Baroness whether she will also use her influence to persuade the Americans that a multilateral approach to a reduction in nuclear weapons, which would succeed in persuading the Russians to take similar action, would be rather more constructive.
Baroness Symons of Vernham Dean: My Lords, I do not believe that we should underestimate the importance of President Bush's announcement last week. It is possible that some political commentators did not read President Bush's announcement last week quite as carefully as I know the noble Lord will have done. The noble Lord will be aware that the United States President said that the US could arid would change the size, composition and character of its nuclear forces, and that in a different part of his speech he stressed the importance that he attached to international negotiations on what was happening not only in relation to nuclear missile defence but missile defence in general. At the moment the US is considering not simply nuclear defence but other very potent chemical and biological weapons, as well as the more conventional weapons that are being developed by some rogue states throughout the world.
Lord Peyton of Yeovil: My Lords, will the noble Baroness attempt to remind the House of the occasions when the Government have moved at all to get some action taken about the 40,000 or so nuclear warheads which exist and which will be a real threat to the peace of the world for as long as they exist? I cannot recall the Government saying or doing anything about them.
Baroness Symons of Vernham Dean: My Lords, perhaps I may remind the noble Lord of the agreed strength and international safeguard arrangements which we put forward in September 1998, with the International Atomic Energy Authority in a monitoring role. I also remind the noble Lord that last year we pressed the matter very hard at the nuclear non-proliferation treaty review conference, the final document of which spoke of an international unequivocal undertaking by the nuclear weapons states to accomplish the total elimination of their nuclear arsenals. I believe that the Government have attempted to ensure that the threat posed by nuclear

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missiles throughout the world is taken seriously not only in this country but also by our friends—and those who may not be quite so friendly—overseas.
Lord Burnham: My Lords, in welcoming the American initiative on nuclear defence, I ask the noble Baroness what steps Her Majesty's Government are taking to reconcile the people of Fylingdales, and other places which may be affected, to the intrusion (if that is the right word) into their areas of this very necessary defence initiative.
Baroness Symons of Vernham Dean: My Lords, to respond to the noble Lord with all the sincerity that I can muster, until we are clear exactly what the US wishes us to consider it is very difficult to be reassuring on specific points. Until there are specific proposals, we can make no specific responses. Therefore, it is very difficult to be specific with people in the locality who may be affected. If such proposals are forthcoming, they will be important not only for local people—I recognise the importance for those who live near these installations—but for all the people in the United Kingdom.

Criminal Justice and Police Bill
3.7 p.m.
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.)
Lord Cope of Berkeley: My Lords, before we continue the Committee stage, can noble Lords be made aware of the basis on which they are to debate the Bill? The newspapers tell us that there was a meeting of the Cabinet yesterday which indicated that there would be an election. That affects the way in which our debates may proceed this afternoon. If the Government intend to go to the polls more or less a year early, having launched on a Session of Parliament with a very heavy legislative programme, which began late, I believe that noble Lords should know about it as soon as possible. I realise that if the noble Lord, Lord Bassam, replies he will probably tell us that he will write to us about it, but that is no good this afternoon. Perhaps the noble Lord the Captain of the Gentlemen-at-Arms will be kind enough to tell us whether he knows anything now; and, if not, when he will know something.
Lord Carter: My Lords, I have been advised by my colleagues to say that I shall write to the noble Lord. I am surprised that the noble Lord should ask this question. As he will be aware, this morning we had a meeting lasting about an hour and half in which we discussed planning for this Bill but he did not raise the point that he has just raised. The only information I have is that the Prime Minister's car was seen to drive
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into Buckingham Palace and out again. I believe that the windows were shaded. As soon as there is an announcement to the public about the possibility of an election I shall in the usual way interrupt the business, ask the House to resume and make a Statement regarding progress of business. But until there is a public announcement my hands are tied.
Lord Cope of Berkeley: My Lords, for the avoidance of doubt, I should make clear that at the start of the discussions this morning both sides agreed that they would take place on a contingency basis.
Lord Carter: My Lords, I have just replied on a contingency basis.
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 47 [Extension of existing disclosure powers]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 97A:
Page 40, line 31, leave out "or may be"
The noble Earl said: Amendment No. 97A, together with my other last minute amendments—for which I apologise to the Committee—were suggested by the Law Society of Scotland. I remind Members of the Committee that I am not a solicitor.
The Bill extends to Scotland. Although criminal justice is a devolved matter, the Bill is promoted for Scotland under the reserved power of this Parliament to make laws for Scotland.
Amendment No. 97A restricts the circumstances in which the disclosure of information can be extended to criminal investigations. It removes the opportunity for disclosure powers to be used where criminal proceedings may be initiated. The Bill could be read as permitting so-called "fishing trips" into sensitive information. That would be a mistake. The amendment removes such a possibility. Amendment No. 97B is similar in effect to Amendment No. 97A. It applies to disclosure when criminal proceedings have been initiated.
Amendment No. 101A upgrades from the negative to the affirmative procedure any order made under Clause 47(3). As drafted, Clause 47(3) will be subject to annulment. These regulations deal with matters of substance; that is, the extension of disclosure powers. They should be fully debated in Parliament prior to implementation under the affirmative procedure. I also suggest that the regulations should be placed before the Scottish Parliament for its approval before implementation.
Amendment No. 102A seeks to ensure that there is no right to require the disclosure of items subject to legal privilege within Clause 47. Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law is usually eager to protect the relationship between a solicitor and his or her client. Provision is made for that within the doctrine of legal professional privilege. To protect that doctrine,

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provision should be made on the face of the Bill to ensure that Clause 47 does not extend to the disclosure of information subject to legal privilege.
Amendment No. 198A simply restricts the circumstances in which the disclosure of information will be permitted. It restricts that disclosure to actual criminal investigations. Amendment No. 108B similarly applies where criminal proceedings have been initiated. I beg to move.
3.15 p.m.
Lord Cope of Berkeley: Before we get into the detail of these particular amendments, we are in the awkward situation to which I previously alluded. That is a particular difficulty so far as concerns Part 2 of the Bill. The section contains a complicated matter with considerable detail. It was not discussed during the consideration of the Bill in another place. At Second Reading it was briefly referred to in some speeches.
We all want to help the police. There is no difference between the Government and the Opposition or any Member of the Committee in that desire. The Bill deals with difficult matters of crime. However, at the same time we are conscious of the spectre of "Big Brother" and of the tremendous opportunities offered by electronic communications and IT for the retention of information about everyone. There are all kinds of new analytical tools—data mining, friendship trees and so on—that can be used on such electronic data. Therefore, there are important issues in the Bill which have not been properly discussed.
Part 2 of the Bill deals with privacy of tax information. It also deals with legal privilege. The noble Earl drew attention to that matter. Some of his proposed amendments deal with that issue. It is an extremely important principle in our law in ensuring justice. The enacting of the Regulation of Investigatory Powers Act and the Government's difficulties with it since, provide an awful warning, as well as an overlap to these provisions. It is extremely important that these potential powers—given not only to the police but also to other authorities—are properly controlled and looked at. It is a difficult and delicate area in which to strike the right balance. Unless we have a proper opportunity to debate the Bill—not merely today, but on Report after the usual reflection, at Third Reading and after another place has had an opportunity to look at any amendments we might make to it—we would not want to see Part 2 of the Bill proceed.
I make that point in the hope that we can perhaps avoid any unnecessary discussion if we should be interrupted in our deliberations today and it becomes clear that we are not going to have a full debate on the matter. In principle, we are not against any powers of this kind. But we believe that they need serious reflection and thought from Parliament as well as from outside and from the affected bodies. Both legal interests and others have great reservations about this
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part of the Bill. Some of those concerns are reflected in the proposed amendments before us today. Therefore, we must think very carefully about the matter.
Lord McNally: We on these Benches share the concerns expressed by the noble Lord, Lord Cope. Indeed, they will be a reoccurring motif throughout the debate. The Home Office and, indeed, Law Officers are always coming to this House with a sense of urgency and righteousness that they need this or that power at once to fight the forces of evil. But the duty of the House and another place is to give due scrutiny to measures and to make sure that powers extended to the authorities are made to jump sufficiently high hurdles before they are granted.
In recent years there has been a tendency for insufficient scrutiny of such measures. I think of the emergency legislation after Omagh where the Home Office slipped in a whole series of powers along with the anti-terrorism measures. The House has a right to say that there should be proper scrutiny of such measures. Indeed, I hope that it is not just when the interests of lawyers and accountants are brought into question that the House should show its willingness to dig in its heels. If the Prime Minister had had his original wish of an election on 3rd May, the Bill would not have seen the light of day. It would not even have had the chance it has now of becoming law. Therefore, it is no use Ministers warning us of the dire consequences of not giving them their legislation within the next 24 hours. They or the successor government have ample time to bring these measures back to Parliament in the summer for them to have the scrutiny that such important measures deserve.
Lord Carlisle of Bucklow: I support what my noble friend Lord Cope has said. We are moving into a sensitive area of the Bill. While I am not suggesting that police should not have all the necessary powers to investigate crime, it is an area that must be approached with great care. The fact is that many authorities in this country hold in their records private, intimate and sensitive information about individuals. The rights of those authorities to disclose that information have to be looked at with great care. The noble and learned Lord the Attorney-General will be aware that the Joint Committee on Human Rights considered this aspect of the Bill. While it accepted the need for the powers to disclose, it expressed concern as to some of the details.
I should like to raise one important point. I may be raising it in ignorance more than anything else. We are widening the power to disclose to cover, for example,
"the purposes of any criminal investigation … which … may he carried out",
and,
"the purpose of initiating or bringing to an end any such investigation".
I am not clear whether there has to be a degree of satisfaction and whether the individual whose information is being requested is suspected of having committed a criminal offence. We fell that that provision should be looked at in the course of this debate. Surely it is right that there should be some

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reason to believe that the individual is involved if he is the person whose information is to be disclosed—information relating perhaps to his health, to his financial position, to his taxation position and many other matters.
Baroness Noakes: Many of the amendments in the group stand in my name. I shall not address them in detail at this stage as I should like to hear what the noble and learned Lord the Attorney-General has to say. A number of concerns have been expressed about this part of the Bill. They have been expressed by those who are involved in advising on tax matters. I refer to the Institute of Chartered Accountants, with which I am connected, and the Chartered Institute of Taxation. There are concerns about the possibility of information going overseas to territories that treat tax offences differently and where there are different consequences for taxpayers and their families. More fundamentally, there are concerns about the impact of the Bill on the compliance culture of the UK tax system. Our tax system is built on a high degree of trust between taxpayers and the Inland Revenue. The Bill as drafted would drive a coach and horses through that framework of trust, which has served the country well for a long period of time.
The Bill has also attracted the concerns of business interests such as the CBI. It is concerned about business information being disclosed abroad to the harm of UK businesses. Furthermore, concern was expressed by the Joint Committee on Human Rights, to which my noble friend Lord Carlisle referred. It concluded that there is a need to introduce adequate safeguards into the Bill.
Many of my amendments concerned the introduction of adequate safeguards. In particular, they centred on introducing a requirement for the consent of an appropriate judicial authority—a Crown Court judge or the equivalent in Scotland—and conditions such as a judge having to take into account whether or not a crime is reasonably expected to be committed and having to take into account some of the overseas dimensions.
I emphasise that serious concerns have been expressed on those points. That is not to say that those who are commenting have any desire to stop the proper fight against serious crime. All Members of the Committee share that desire and all those who have commented share that desire. What is so worrying is the wide and sweeping nature of the powers and the lack of checks and balances within the legislation. I shall not say any more about my amendments at this stage because I should like to hear what the noble and learned Lord the Attorney-General has to say.
Lord Phillips of Sudbury: I rise briefly to support the amendments spoken to by my noble friend Lord Mar and Kellie. In all the talk about legal privilege there is a danger—not among Members of the Committee but beyond these walls—of it being thought that the privilege attaches to the lawyer. The privilege is for the benefit of the client. Legal privilege is an ancient one
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and is the bedrock of a fair trial process. It surprises me that there is not protection for the traditional right of non-disclosure of legal communications in the Bill as it stands. Perhaps the noble and learned Lord the Attorney-General can assure us that it is already there. I am strongly in favour of amendments that support legal privilege.
Lord Campbell of Alloway: I support the amendments because, although the powers are sought probably correctly in the main, there must be some safeguards. There is no time adequately to discuss this matter. It is wholly unreasonable that in these circumstances we should be required to deal with the safeguards that are needed. I support the amendments on that ground.
3.30 p.m.
The Attorney-General (Lord Williams of Mostyn): I sympathise with the tone of what has been said, not least because the regrouping has only just arrived in my hand. I therefore understand that fellow Members of the Committee will have difficulty in moving their amendments.
The noble Earl, Lord Mar and Kellie, moved Amendment No. 97A and spoke to Amendments Nos. 97B, 108A, 108B, 102A, 110A and 116A. However we get on today, it may he helpful if we at least attempt to remind ourselves of the amendments with which we are supposed to be dealing. I dare say that I have the amendment numbers wrong. The noble Earl has gone to two of the pre-existing groups, about which I make no complaint at all. We are all in the difficulty of having to deal with much wider groupings than we had originally intended.
I accept entirely what the noble Lord, Lord Cope of Berkeley, said. He wishes to help the police and other investigators—the Bill is not limited to the police—in legitimate inquiries. The noble Lord said that this is a delicate area. I accept that. The noble Lord, Lord McNally, said that Ministers sometimes come with a sense of urgency and righteousness. We are having a division of labour this afternoon. My noble friend Lord Bassam will do the urgency and I shall do the righteousness—if that is acceptable to the Committee.
The noble Lord, Lord Carlisle, asked specific questions about whether there should be a reasonable suspicion before the material may be disclosed. I accept what the noble Lord, Lord Campbell of Alloway, and the noble Baroness, Lady Noakes, have said. I understand entirely that the noble Baroness said that she would not go into the detail of her amendments because they formed what might be called a wider-sighted shot.
Perhaps I may deal with the specific amendments that have been moved so far. Those are the amendments tabled in the name of the noble Earl. Lord Mar and Kellie, which seek to leave out the words, "or may be", along with the grouping which is the offspring of the Law Society of Scotland, dealing with legal professional privilege, touched on by the noble Lords, Lord Carlisle of Bucklow and Lord Phillips of Sudbury.

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Amendments Nos. 97A and 97B, and 108A and 108W seek to leave out the words "or may be" which noble Lords will find in the relevant subsections in Clauses 47 and 49 of the Bill. I underline the following words because they have been of great concern to all noble Lords who have spoken in this short debate. We believe that, subject to appropriate safeguards—I shall return to these because they are important—public authorities ought to be able to disclose information about wrongdoing to law enforcers. The appropriate safeguards are those within the provisions themselves, together with the very important restrictions put on disclosure provided by the Human Rights Act and the Data Protection Act, along with the Secretary of State's power to limit disclosure overseas. If carried—I know that they have been moved with good motive and with a view to securing a good outcome—these amendments would prevent the spontaneous disclosure in cases where information holders had information about criminal activity, but where criminal investigations or procedures had not been initiated.
Perhaps I may give an example, which does not intend in any way to diminish the point which has been made by a number of noble Lords. I understand that there has been an occasion where a drugs trafficker reported his earnings as arising from drug trafficking. Under the present law, the Revenue authorities were not able to inform the police of that matter. I hope that all noble Lords would agree that that is nonsensical, not least because the expertise, subtlety and sophistication of those who commit some of these extremely extensive crimes are significant. The reason why we seek to include the words "or may be" is that it should not be necessary to wait for the trigger of a criminal investigation before such matters can be disclosed. However, I state again that the appropriate safeguards to which I have referred are in place. I hope that I have dealt fully with the point put to me by the noble Earl.
On the question of legal privilege which, as I said earlier in my remarks, was touched on also by the noble Lord, Lord Phillips of Sudbury, Amendments Nos. 102A, 110A and 116A are not necessary because information which benefits from legal professional privilege could not be disclosed in a way which would undermine the privilege. Most compulsory powers to obtain information do not extend to material which is legally privileged. For that reason, it would be unusual for the disclosing authorities to possess information which is legally privileged. Where the compulsory powers do so extend, the information keeps its privileged nature, notwithstanding the compulsory acquisition. The extent of the privilege will therefore limit the extent to which the authority will be able to disclose the information to third parties. That is because the disclosing authority will have to refrain from acting in a way which would undermine the individual's legal professional privilege. I accept the analysis put forward by the noble Lord, Lord Phillips, as regards exactly whose property is the privilege.
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All disclosing authorities under Schedule 1 and Clause 49 will be public authorities within the meaning of the Human Rights Act 1998. I understand that the only exception is Section 4(2) of the Electronic Communications Act 2000. My advice is that the Government do not intend to bring that into force. What are the consequences? It would mean that any disclosure that might be made would need to comply with the right to a fair trial by virtue of Article 6 of the European convention. I can say from my own experience in acting for the British Government in the case of Shah that this is not lightly overlooked by the European Court.
The voluntary disclosure of information to the authorities under the provisions of Schedule 1 or those contained in Clause 49 sometimes may amount to a waiver of the privilege. In those circumstances, the information would not be protected from disclosure. I have dealt with this in some detail because it is not the limited point put forward by the noble Earl. I have sought to reflect more widely the general concerns that have been raised. I repeat that I understand that those concerns deliberately have been raised in general terms because at present we are not dealing with specific points of detail.
This covers the amendments that have been moved so far, but I think that the noble Earl may have a question to put to me, to which I happily give way.
The Earl of Mar and Kellie: I am most grateful to the noble and learned Lord. I should like to clarify that I spoke to Amendments Nos. 101A and 102A, rather than to Amendments Nos. 110A and 116A. Amendment No. 101A concerns moving the order from the negative to the affirmative procedure and possibly also putting it before the Scottish Parliament.
Lord Williams of Mostyn: The noble Earl is quite right. Indeed, when gathering together my papers and probably because of my poor handwriting, I read "110A" for "101A".
Amendment No. 101A would not alter the principle that, once the Bill comes into force and thereby harmonises over 70 existing provisions covering statutory disclosure, the Government ought to be able to enact by statutory instrument similar provisions contained in subordinate legislation. We believe that the negative resolution procedure will be sufficient: in this case. I remind noble Lords of an extremely important point which is normally deployed against my submissions; namely, that the Delegated Powers and Deregulation Committee has examined the Bill. As I remember, it did not express reservations of any kind about the use of the negative procedure in relation to this power.
I apologise both to the Committee and to the noble Earl for having mistaken the group to which he was speaking. As I have said, the regrouping—as it may subsequently become—was not in my hands when he moved his amendment. I wanted to pay particular attention to the substance of the amendments.

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I hope that I shall be able to continue to address noble Lords for a few moments longer. I was brought up in Wales where, as the noble Lord, Lord Thomas of Gresford, will underline, we were always taught to be extremely economic when making submissions of any kind. Indeed, I have often pointed out to the Chief Whip that, given the kind of remuneration one enjoys, one is not really entitled to look for more than 12½minutes.
Lord Phillips of Sudbury: I wonder whether it would help the noble and learned Lord if I were to put two questions to him. First, can he make it absolutely clear to the Committee that, in response to those amendments tabled by my noble friend Lord Mar and Kellie which stipulate that,
"Nothing in this section authorises the making of any disclosure of items subject to legal privilege",
the noble and learned Lord is saying that they are absolutely unnecessary and that the common law rights of legal privilege will override the provisions set out in the Bill?
Secondly, the noble and learned Lord said that Schedule 1 contains a list of all those authorities which can seize documents subject to legal privilege, but that, having seized such information, the authorities could not make use of it. However, is it not the case that such information will be of use to the seizing authorities, quite separate from their passing it on to a third party?
Lord Williams of Mostyn: I do not agree with the noble Lord's second proposition. As he and I know from our respective work in practice, sometimes documents are seized which nevertheless can be subject to the successful assertion of legal privilege. In those circumstances, the judge would not rule such documents admissible; he would have recourse to Section 78 of the Police and Criminal Evidence Act; and, in any event, there are the Human Rights Act and Data Protection Act dimensions that I have indicated.
It also seems to me that, if a bad faith seizure is made, in the view of many judges it would not be admissible to allow the consequential information as opposed to the original document to be used. I am conscious of the fact that I should not answer at too great a length. Therefore, overcome by shame and submission, I am about to sit down.
The Earl of Mar and Kellie: I am most grateful to all Members of the Committee who have taken part in the debate and to all noble Lords who have suddenly taken an interest in my amendment. It has been a wide-ranging debate with wide-ranging answers which will certainly be of interest to the Law Society of Scotland. I would normally be able to say that I look forward to reading Hansard and considering the matter before the next stage, but I rather suspect that I shall not be able to do so. That being the case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Dissolution of Parliament
3.41 p.m
Lord Carter: My Lords, it may be for the convenience of the House—I hope that this does not come as a surprise to your Lordships—to know that my right honourable friend the Prime Minister has today asked Her Majesty the Queen to proclaim the Dissolution of Parliament. Her Majesty has been graciously pleased to signify that she will comply with this request.
The House will meet at 2.30 p.m. tomorrow, at 11.30 a.m. on Thursday and at 9.30 a.m. on Friday. At the end of Friday's business the House will adjourn and Dissolution will take place on Monday, 14th May. The general election will take place on Thursday, 7th June.
We shall proceed with today's business as it appears on the Order Paper, although, in the light of this announcement, it is proposed to adjust the remainder of the week's business in your Lordships' House. With the leave of the House, I propose to make a further statement about these matters later today. I shall try to ensure that notice of the statement is given on the annunciators but I cannot at this stage inform the House of exactly what time the statement will be made. It may also be for the convenience of the House to know that my noble friend the Leader of the House will today table a Business of the House Motion for consideration at the start of business tomorrow, as is usual on these occasions.
Lord Henley: My Lords, I thank the Government Chief Whip for that statement. Clearly the very short period between the announcement of the Dissolution and the Dissolution itself will mean that a number of Bills on which the House has been working very hard will not be completed. We on these Benches will, in the usual way, offer all our assistance and co-operation in moving forward certain non-controversial items which have had a reasonable parliamentary scrutiny. We hope that later today we shall be able to facilitate a further statement from the Government Chief Whip which will assist the House to understand what will happen. We look forward to hearing further details from him on that occasion.
The noble Lord mentioned that we shall sit tomorrow at 2.30 p.m., at 11.30 a.m. on Thursday and at 9.30 a.m. on Friday. I hope that we can reach a degree of agreement in terms of what business should go through to enable us to stick to those times. I hope that we shall be able to firm up on those times later today in order to make it quite clear to the House what

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we will be doing and when we will be doing it. Members of the House will then be able to adjust their diaries accordingly.
Baroness Williams of Crosby: My Lords, I, too, thank the Government Chief Whip for his "surprising" statement about the forthcoming general election. I can assure him that we on these Benches will co-operate in every way possible on non-controversial and beneficial legislation and endeavour to speed up such matters.
Perhaps the noble Lord will let us know whether Starred Questions will take place in the usual way on Thursday at the beginning of business. We look forward to the further statement.
Lord Carter: My Lords, I am grateful to the noble Lord, Lord Henley, and the noble Baroness, Lady Williams. I believe that the period between the announcement and dissolution is the normal period that has been followed in previous years. We discussed it in the usual channels this morning and there is no reason that we should not be able to stick to the times that I have suggested. As to the question of the noble Baroness, Lady Williams, yes, there will be Prayers and Starred Questions as usual on Wednesday at 2.30 p.m. and on Thursday at 11.30 a.m. There will be Prayers but obviously there will be no Starred Questions on Friday.

Criminal Justice and Police Bill
3.45 p.m.
House again in Committee on Clause 47.
[The CHAIRMAN OF COMMITTEES in the Chair.]
[Amendment No. 97B not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment
No. 98:
Page 40, line 37, at end insert—
"(2A) In so far as subsection (2) has effect in relation to—

(a) information that has been obtained under or by virtue of the provisions of Part 5 of the Fair Trading Act 1973 (c. 41) (mergers); or

(b) information that has been obtained, for the purpose of facilitating the exercise by a relevant authority of functions under Part 5 of that Act, under or by virtue of the provisions of Part 8 of that Act,

that subsection shall have effect as if, in paragraphs (a) and (b), for "whether in the United Kingdom or elsewhere" there were substituted "in the United Kingdom"."
The noble Lord said: I beg to move Amendment No. 98 formally.
Lord Cope of Berkeley: The Minister suggested that he wished to move Amendment No. 98 formally. Perhaps he will explain what this government amendment and related amendments seek to do—unless, of course, he is agreeing to my suggestion that, in view of the announcement made by the Government
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Chief Whip, it would be better not to move any further on Part 2 of the Bill and to leave the issue to subsequent legislation after the general election has taken place.
I should make it clear that, if the Government are re-elected, it will be a matter for them how they proceed. If my own party is elected to government, we shall look very carefully at these provisions. I do not think that we will bring them back in exactly the same form but as I made clear earlier, we will wish to pursue the point that lies behind them. However, we do not think that it is right to proceed at this stage.
Lord Bassam of Brighton: I am grateful for the noble Lord's intervention. I was struggling to find my notes.
Lord Carlisle of Bucklow: What is the purpose of introducing amendments to the Bill when we now know that it will go no further in the House in this Parliament?
Lord Bassam of Brighton: That is clearly a matter for the House to decide ultimately. I was going to respond to the view of the noble Lord, Lord Cope, on Part 2 of the Bill.
When we were having our discussions earlier in the day about how we might proceed in the event of the announcement that has just been made by the Chief Whip, we undertook at least to debate the clauses in a consolidated group rather than in the groups that had earlier been agreed through the usual channels. I was anticipating that we would proceed in that way and that my noble and learned friend Lord Williams of Mostyn would address all of the issues that have been tied together in the new consolidated group before us.
Lord Cope of Berkeley: Perhaps I should make it clear that large parts of the Bill are acceptable to us. We obviously discussed some amendments the other day and more are before us today but, in the circumstances, we shall not take up the time of the Committee by pressing some of these amendments.
I believe that a Bill based on this Bill will succeed. It is right that it should; it contains many provisions which we support. At the same time, there are a few elements in the Bill which we do not think should proceed in the circumstances because they have not had sufficient discussion. Part 2 of the Bill, with which we are now dealing, is exactly such an element.
There are two possible scenarios at the moment for dealing with Part 2. If the Government are content that Part 2 should be dropped from the Bill, it would nevertheless be helpful if Members of the Committee who have views on Part 2 take this opportunity to express them. That would enable whoever drafts the legislation after the election to know the points of concern and the Bill could be improved as required.
On the other hand, if the Government are persisting in their attempt to achieve Part 2, we shall have to press these amendments more resolutely and at greater

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length. If that is the case, so be it, but it would be helpful to know the Government's overall view of Part 2 so that we know how to conduct ourselves.
Lord Bassam of Brighton: Although we remain of the view that this is an important part of the legislation, the representations that were made to us in the event of an announcement being made this afternoon are being given active consideration. We have some sympathy with the view expressed by the noble Lord.
I believe that we should be well advised, if we proceed, to have a generalised debate picking out the particular points that Members of the Committee wish to make on Part 2. I suspect that at the end of the day the noble Lord may find that it is not necessary to press his amendments as forcefully as he might otherwise do. There is some value in hearing the views of the Committee on the various issues that have been "flagged up" through the amendments so that they are on the record and legislators in a future Parliament may take account of them.
In the mean time, I believe that we should move in the way that has been suggested. No doubt we can continue to have discussions outside this Chamber as to what will ultimately find its way into the finalised piece of legislation. As the noble Lord said, much of the Bill is uncontroversial and much of it will meet with ready agreement. It is perhaps worth adding that Part 2 was fully debated in another place; and we find the discussion that is taking place on this part of the legislation most helpful.
Lord McNally: I can understand the Minister's remark that some of the proposals are under "active consideration". However, I put it to him that the Government must not be too leisurely on these matters. If we are to spend a large part of today on Part 2 and if other parts of the Bill about which some of us feel equally strongly are not reached, or are reached at some unearthly hour tomorrow morning, we shall strongly take the view that any idea of parliamentary scrutiny has been totally thrown out of the window and we shall have to look to our own resources in those circumstances. Many will take the view that was assumed by the noble Lord, Lord Carlisle, that the Bill has not received sufficient parliamentary scrutiny and that it would be far better were it to be brought back as a whole later.
Lord Bassam of Brighton: I quite understand the noble Lord's argument. It is one to which I listened carefully outside this Chamber earlier. If we can provide the opportunity for some additional scrutiny on Part 2 this afternoon, albeit in a more truncated time-frame than might otherwise have been the case, the noble Lord may well find that there is a more receptive ear to the points made to us in private discussions earlier. I welcome the opportunity for us to move through the Bill and perhaps to continue
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discussions on the final format of this piece of legislation. That observation is made in the full intention of being as helpful as I possibly can.
Lord Cope of Berkeley: In that case, I suggest that the Minister or his noble and learned friend should introduce government Amendments Nos. 98 and 102 and explain what is happening.
Lord Williams of Mostyn: I am grateful to the noble Lord. Perhaps it may be helpful if I take up his invitation.
Originally, this grouping included Amendments No. 98 and 102. Both were tabled in the name of my noble friend Lord Bassam. Amendment No. 98 prevents the overseas disclosure of information collected in connection with the examination of merger proposals under the Fair Trading Act 1973. These amendments therefore carve out overseas disclosure of merger-related information from the harmonising and widening effects of Clause 47. They do not alter the effect of the Bill in relation to the other provisions in Schedule 1.
We have made it plain in the past that we want to improve co-operation with overseas competition authorities in tackling the threat of international cartels to the world economy. These amendments—here I hope to pick up the question raised by the noble Baroness, Lady Noakes—respond to concerns expressed by the CBI about the use of information voluntarily provided by companies to the OFT in connection with merger proposals. Businesses were concerned—I understand their concern—that confidential business information could be passed on to overseas authorities and be used against them. A consequence might be—I recognise that this is a reasonable thought to have—that companies might be less willing to co-operate with competition authorities when providing information on a voluntary basis.
In our judgment it would be rare for such material to contain information which might be of relevance to an investigation into a cartel and, therefore, potentially disclosable under the disclosure provisions for a criminal investigation or criminal proceedings.
These concerns were put forward persuasively and moderately. That is why we have acted to exclude the overseas disclosure from the disclosure provisions in the Bill. The CBI has welcomed the tabling of these amendments. It has some concerns about other aspects of information disclosure but has indicated its belief that those concerns can be met by the Office of Fair Trading issuing a notice on how it would operate the disclosure provisions. The CBI, again quite reasonably, wishes to have adequate consultation prior to the publication of the OFT notice. The Director-General of Fair Trading has agreed to do exactly that.
Therefore, the legislation as amended, if the Committee is content, will enable the UK to improve international co-operation in fighting crime but will at the same time safeguard the legitimate interests of

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United Kingdom business. That is a brief explanation of the thinking behind the two amendments. I commend them to the Committee.
The Earl of Northesk: While accepting that we are debating this part of the Bill in something of a limbo, I have one or two queries about the amendments. The noble and learned Lord will be aware that, in its supplementary memorandum to the Joint Committee on Human Rights, the Home Office stated, at paragraph 28(f):
"It is intended that disclosures of information via clause 47 will be regulated and controlled by procedural requirements to be drawn up by the relevant authorities and distributed to relevant members of staff".
The Bill does not say as much, but I assume from this that to all intents and purposes it is the Government's intention that Clause 47 should operate under the regime of a form of code of practice. But, as the CBI has pointed out, if we wish to be certain that these provisions do not have an adverse effect on the competitiveness of UK businesses,
"It is essential that … there should be full prior consultation on this in line with the Government's commitment in November 2000 to a standard twelve week consultation period".
Moreover,
"The guidance should take into account current developments and proposals in the OECD for a code of practice/convention on the subject of information exchange between enforcement authorities".
I simply ask: what is the Government's response to these eminently sensible and desirable suggestions?
I have one further point to raise. The amendments apply only in the context of information relating to merger investigations. But, by definition—the noble and learned Lord referred to this fact—this is not the only area where the problem arises. Viewed logically, the Government's position is that they concede that, in the context of mergers, there are legitimate reasons as to why the disclosure regime should be limited to the United Kingdom. It is reasonable to suppose that that conclusion arises, at least in part, because of an acknowledgement of variations in the way in which different judicial processes operate country to country. That is all well and good. But why, therefore, have the Government not extended their concerns here, as logic demands, beyond the narrow focus of mergers?
4 p.m.
Lord Elton: In addressing merely the procedure, not the merits, of this amendment, I wonder whether the noble and learned Lord could clear my mind in one respect. I remain confused as to whether we are engaged in one of only two courses that I believe are open to us: the first is through a pastiche of a discussion on the whole of Part 2 to leave a sort of legacy to the next Parliament as to how a reintroduced Part 2 might be treated in that Parliament, which—I add in parenthesis—is often wasted labour; the other is to work in precise detail on a part of the Bill that is intended to be put into legislation in the next few hours, certainly the next few days. I deduced from what was said initially from the Dispatch Box that the
916
former would be dealt with cursorily but that this amendment would be dealt with in detail. I should like to know the course upon which the Committee is now embarked.
Lord Williams of Mostyn: I believe my noble friend made it clear that the Government wish this Bill to be on the statute book; indeed, only a few moments ago, the noble Lord, Lord Cope of Berkeley, said that we could look for general support—I hope I paraphrase fairly—for the Bill. I hope I have this right, but I believe that the noble Lord said on behalf of the Opposition Front Bench that he would prefer Part 2 to be excluded from the Bill. Our intention, subject to any votes that might be taken or any view that Members of the Committee might care to express, is that we wish to continue with this legislation and see it through to the statute book. As I say, that process is subject to the wishes of the Committee and, indeed, those expressed at the Report stage, which may well be taken tomorrow.
I trust, therefore, that I have dealt sufficiently with the question posed by the noble Lord, Lord Elton. In answer to the points raised by the noble Earl, I sought to point out that the Director-General of the OFT has already undertaken that adequate consultations should take place. It seems to me that any relevant matter that the CBI wishes to raise in the OECD context, or any other, ought to be a matter for that quite careful and, I hope, dispassionate scrutiny. I stress two considerations, I think, fairly. The CBI has welcomed the tabling of these amendments. However, it has said, perfectly reasonably, that sometimes the devil is in the detail. The confederation wants to consult fully with the OFT, and the latter has responded in a way that I hope is agreeable to the Committee.
Baroness Carnegy of Lour: As I understand it Part 2 of the Bill applies to Scotland. As much of Part 2, as far as I can see, relates to matters that are devolved to the Scots Parliament, the latter must have asked the Government if Westminster would legislate for it in this matter. When the Government agreed to do so, can the noble and learned Lord say whether they explained to the Scottish Executive that they might deal with Part 2 in a cursory and truncated manner? Indeed, did the Executive agree to that? Presumably the Scottish Executive handed the matter to Westminster in order to get it dealt with properly, with all the wisdom that Westminster can demand.
Lord Williams of Mostyn: I am not sure that wisdom is entirely coincident with length; sometimes, in my experience, it is not. However, my experience of short wisdom is less than my experience of long wisdom, if I may put it that way. As the announcement of the Prime Minister's visit to Her Majesty was made only this afternoon, I doubt whether the Scottish Executive were informed of that. I simply have no means of knowing. Until 20 minutes to four o'clock this afternoon, I did not know what my noble friend the

917
Chief Whip was going to say. However, in common with the noble Baroness, and others, I suppose that I may have had my reasoned suspicions.
We do not need to be cursory about this. I hope that I am answering as fully as I can, consistent with the discipline that we do believe that many of these matters are important. From what the noble Lord, Lord Cope, said, I take it that there are some aspects of Part 2 that are less contentious than others. It seems to me that we can be discriminating in the amount of time that we spend on each group. The noble Lord, Lord Cope, was good enough to say that many of the aspects of the Bill would have Opposition support, although I believe that he put it more optimistically; namely, that if he and his colleagues were in government after 7th June, they would introduce a very similar Bill.
I do not believe that I should be either inviting or encouraging Members of the Committee to do anything that they think is inappropriate. However, there are many answers that can be given to the amendments that have been tabled. I seek to put them forward with reference, for example, to the Human Rights Act, to Section 78 of the Police and Criminal Evidence Act 1984 and to the Data Protection Act.
Lord Cope of Berkeley: It seems that I did not make myself clear earlier. Perhaps I may do so now. Both in our discussions this morning and—I hoped—this afternoon, we said that we do not believe that any of Part 2 should proceed. The Bill contains many useful provisions, which can proceed despite the truncated debate. However, that does not apply to Part 2: it needs further and serious discussion.
Obviously we are proceeding with that discussion now; indeed, that is part of the process. But if the Government's conclusion is that they wish to press on with Part 2 today, we shall continue to debate it today and, presumably, tomorrow. In fact, it makes us wonder whether or not the Report stage should take place tomorrow. After all, that would mean a considerable foreshortening of the normal procedures laid down in the Companion. It would mean that we had inadequate time to discuss with those representing the very serious outside interests—the various professions that have been mentioned—which are involved in Part 2 of the Bill. We would be unable to discuss the Government's reactions with them and, thereby, try to frame new and better amendments in order to improve Part 2. Frankly, I do not consider that there will be time for us to do so between now and tomorrow.
If the Government persist in their desire to push on with Part 2 of the Bill, we shall have to reconsider our position most carefully in that respect. However, for the moment, we had better get on with the discussion. So far, we have discussed Amendments Nos. 98 and 102. It might be for the convenience of the Committee if we reverted to the sort of grouping that was originally intended. If the Government do not propose to agree to our suggestion to drop Part 2, I believe that we should revert to the original grouping. That would make for a neater debate. Let us, therefore, bring the
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debate on those amendments to a conclusion. We can then proceed to debate the group commencing with Amendment No. 99, and so on, as originally proposed.
Lord Renton: I should like to add a few brief words to what my noble friend Lord Cope has just said. It has always been the tradition in both Chambers that there should be a reasonable interval between the conclusion of the Committee stage and the commencement of the Report stage, especially on a Bill affecting the administration of justice or the freedom of the individual. That enables time to be given for the drafting of necessary amendments. On a Bill of such a complex nature, we really need time between the conclusion of the Committee stage and the start of the Report stage. I understand the unusual and unfortunate position that they are in, but, with deep respect to the Government, I really do not believe that it is feasible to do as they suggest.
Lord Williams of Mostyn: I take the noble Lord's point. However, that must be a matter for the House to determine. I shall be corrected if I am wrong, but I understood that it was a reasonable working possibility that we would start and finish the Report stage of the Bill tomorrow. Despite the grouping in which we are conceptually engaged, I spoke to Amendments Nos. 98 and 102 because they are government amendments. Although I am willing to assist the Committee in every circumstance, I thought that I ought to confine myself to not proposing opposition amendments. That is why I spoke to Amendments Nos. 98 and 102. If the noble Lord, Lord Cope of Berkeley, is suggesting that we should go back to the original groupings, that can be done. Any noble Lord is entitled to degroup or decouple the amendments so that they can be dealt with in the appropriate way.
It might be helpful to adjourn for a short time to ascertain, consistent with everyone's legitimate interests—they are not perfectly unanimous, but that does not derogate from any of them—how little we agree on, or how little we disagree on. At the moment I am not sure that the present discussion is doing the Committee an enormous service. However, I believe that the Question ought to be put on Amendments Nos. 98 and 102 which I have already discussed.
The Deputy Chairman of Committees (Lord Brougham and Vaux): The Question is, That Amendment No. 98 be agreed to?
Lord Thomas of Gresford: I have not had my say on Amendment No. 98. I heard what the noble and learned Lord said about a moment for reflection. Are we to have that moment or are we to continue to debate the government amendments?
Lord Williams of Mostyn: I did not intend to be discourteous to the noble Lord. I did not realise that he wished to speak to Amendment No. 98. There seemed to be general agreement to my suggestion of a brief adjournment. That would at least permit us to

919
agree on what we disagree about and to understand precisely what we are to do. I am trying to be the servant of the Committee. I recognise that arid discussions about who said what to whom in what circumstance and how far we shall progress tomorrow do not assist any of us in our discussion of what is agreed to be a very important part of an exceedingly important Bill. I am not sure what length of adjournment the Committee would think appropriate. We do not want to waste time, but would it be prudent to adjourn for perhaps 40 minutes?
Lord Thomas of Gresford: I noticed that certain discussions were taking place behind the arras to which my party was not in any way a party. That is not helpful. We do not know where we stand. If there are to be discussions, we wish to participate in them.
Lord Williams of Mostyn: Of course, that is understood. I believe that the discussions were an attempt to assist the Committee as I made the general suggestion. Is it acceptable to adjourn for 40 minutes to ascertain whether or not we might reach some agreement, or at least some defined disagreement?
Lord Cope of Berkeley: I believe that that would be helpful. Did the noble and learned Lord mention 40 minutes?
Lord Williams of Mostyn: I suggested an adjournment of 40 minutes.
Lord Cope of Berkeley: If that is acceptable to others, I consider that that is an appropriate thing to do. Then we can proceed in whatever way we decide, assuming that we reach agreement on that matter.
Lord Williams of Mostyn: I beg to move that the Committee stage stand adjourned until 4.55 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 4.13 to 4.55 p.m.]
The Deputy Chairman of Committees: We were considering Amendment No. 98 when we adjourned the Committee.
Lord Williams of Mostyn: I am grateful for the patience of the Committee. I think that it was generally regarded as a good idea if we paused for a moment or two. I can tell the Committee that an amendment will be put clown to be voted on to delete Part 2 from the Bill. I have done that in deference to quite a number of noble Lords who put forward concerns which we thought were justified. Accordingly, as always, we rejoiced in being able to accede to the view of the Committee. In that spirit of amity, I beg leave to withdraw Amendment No. 98.
Amendment, by leave, withdrawn.
Baroness Noakes Baroness Noakes had given notice of her intent ion to move Amendment No. 99:
Page 40, line 37, at end insert—
"(2A) Information shall not be disclosed by virtue of this section except with the consent of the appropriate judicial authority."
The noble Baroness said: I am saved from addressing the Committee at length on the large number of amendments in this group which I had put forward. Perhaps I may say how much I welcome the withdrawing of Part 2 which caused many organisations considerable concerns, as I outlined earlier.
We understand and welcome the main thrust of the provisions: to enable information to be exchanged to allow the better detection of organised and international crime. However, when the provisions come back to this House we shall seek significant safeguards. We shall consider in particular what the Joint Committee on Human Rights said on the kind of safeguards needed in the light of the wide powers which were drafted in that Bill. We shall seek powers with more safeguards or less extensive powers.
The Deputy Chairman of Committees: Is the noble Baroness moving Amendment No. 99?
Baroness Noakes: I shall come to that. I beg leave to withdraw Amendment No. 99. I reiterate my support for not taking forward Part 2.
[Amendment No. 99 not moved.]
[Amendments Nos. 100 to 102A not moved.]
Clause 47 agreed to.
Clause 48 [Restriction on disclosure of information for overseas purposes]:
[Amendment No. 103 had been withdrawn from the Marshalled List.]
[Amendments Nos. 104 to 108 not moved.]
Clause 48 agreed to.
Clause 49 [Disclosure of information held by tax authorities]:
[Amendments Nos. 108A to 110A not moved.]
Clause 49 agreed to.
[Amendments Nos. 111 to 114 not moved.]
Clause 50 [Interpretation of Part 2]:
[Amendments Nos. 115 to 116A not moved.]
Clause 50 agreed to.
Clause 51 [Additional powers of seizure from premises]:
5 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 117:
Page 45, line 7, at end insert "; and
(f) in the case of material held in electronic form, whether it would be reasonably practicable for the material to be copied on those premises"
The noble Baroness said: We now turn to Part 3, which relates to powers of seizure. I shall speak to Amendments Nos. 117, 118, 118A, 119, our 122ZA, as opposed to that of the noble Earl, Lord Mar and Kellie, and 122B.
Clauses 51 and 52 extend the powers of the police to seize items from premises and from persons or individuals when they are conducting a lawful search. They give the police and other law enforcement agencies power to remove material that may extend beyond that which they are entitled to seize from premises so that they can examine it elsewhere. That could mean that items subject to legal privilege could be removed from premises to be examined at a later date.
The clauses recognise that, with the development of information technology, investigators may wish to seize and forensically examine an entire disk or hard drive to determine when individual documents have been created, amended or deleted. They would result in the retention of all the material on the hard drive, including, possibly, some legally privileged material. The clauses also give the police and other law enforcement agencies the power to retain such material.
We are concerned about the inevitable erosion of the doctrine of legal privilege, which was referred to on earlier amendments this afternoon on Part 2. For example. the duty of confidentiality is an essential element in the relationship between a client and his solicitor or barrister. A client must be confident that he can disclose the whole truth to his legal adviser, who will respect his client's confidence. Furthermore, the privilege that attaches to communications between a solicitor or barrister and their client when there is a prospect of litigation is fundamental to the justice process. If there is any erosion of that doctrine of legal professional privilege, that relationship will be damaged and the potential for breakdown in the administration of justice will become apparent.
Amendment No. 122ZA is a drafting point. We believe that for Clause 51(4) to make sense, the words "to have" should be inserted.
Amendment No. 122B, which relates to Clause 54 and the examination and return of property seized under Clauses 51 and 52, would ensure that,
"Where the initial examination of the seized property has been conducted without the presence of—

(a) the person from whom it was seized … or

(b) a person with an interest in that property",

proper notice should be given as to why the examination was conducted, notwithstanding their absence, unless that person had been given prior opportunity to be present at the examination and had
922
declined. The amendment would add credibility to the power of seizure and would aid transparency. I beg to move.
The Deputy Chairman of Committees: I advise the Committee that the amendment in the name of the noble Earl, Lord Mar and Kellie, numbered 122ZA on the supplementary list should be numbered 122YA.
The Earl of Mar and Kellie: I shall speak to the selection of amendments in my name relating to Scotland. As well as the five in this group, I shall speak to the amendments in the next group because they are purely consequential.
Amendment No. 118B would provide that there was no right to seize items subject to legal privilege. Those briefing me in Scotland are concerned about the erosion of legal professional privilege. The provisions may not be compliant with Article 8 of the European Convention on Human Rights. The 1992 case of Niemitz v Germany extended the definition of "home" to include a solicitor's office. That may be appropriate to the Bill.
Similarly, there is a danger of collateral privileged information from third parties being obtained. Legally privileged material should be excluded from the Bill. Amendment No. 119A would have a similar effect.
The intention of Amendment No. 122YA—or ZA—is to probe the meaning of,
"as soon as reasonably practicable".
I have suggested that a limit of 48 hours would be sufficient. That is beyond argument.
Amendment No. 122C would delete Clause 55 and replace it with the single sentence:
"If, in contravention of sections 51(7) and 52(6), an item subject to legal privilege has been seized, it shall be returned forthwith:.
That clear instruction requiring the immediate return of any items subject to legal privilege would considerably improve on the complicated formula in the existing clause. The other amendments are consequential on the attempt to repeal Clause 55.
Lord Williams of Mostyn: Perhaps I should read out exactly which amendments are in this group: Nos. 117, 118, 118A, 118B, 119, 119A, 122YA, 122ZA, 122B, 122C, 122D, 123A, 124A, 126A, 126B and 126C. I shall pause for a moment in case any of your Lordships wish to say anything.
In the absence of any further comment, I shall start with Amendment No. 117. As the noble Baroness, Lady Buscombe, said, it would add whether it was reasonably practicable for material held in electronic form to be copied on premises as a factor to be taken into account when considering whether the material could be sifted or analysed on the premises.
I still do not understand how the issue of whether electronic material can be copied on premises is relevant to deciding whether it should be removed from the premises for sifting or analysis. We accept the principle that copies should be seized if they are a satisfactory alternative to originals, but that principle

923
can be covered in supporting guidance, which would emphasise that investigators should always give careful consideration to whether removing copies would be a satisfactory alternative to taking originals. Copies are equivalent to originals for the purposes of the proposals in Part 3. Clause 64(1) makes specific provision for that. We therefore do not think that Amendment No. 117 is necessary or consistent with the broader structure of the proposals.
Amendment No. 118 is part of a series concerning legally privileged material. Amendments Nos. 118 and 119 would prevent the disapplication of the provisions in the Police and Criminal Evidence Act 1984 in Clauses 51 and 52 respectively. Amendments Nos. 118B and 119A would have a similar effect.
We believe that this group of amendments, some of which, as has been said, are consequential, would undermine a key aspect of the proposals in Part 3. Legally privileged material can be seized lawfully under the new powers in Clauses 51 and 52 only if it is not reasonably practicable to separate it from other material to be seized; in other words, in all other circumstances, material which is accepted by investigators as being legally privileged cannot be seized.
Lord Avebury: Following on from what the noble Baroness said when she moved the amendment, I wonder whether the noble and learned Lord can clarify for me a matter concerning legally privileged material on a hard disk. If the police enter premises and find a hard disk containing all the material which a solicitor uses in the course of his business, they will be aware that some of it is legally privileged. However, short of going into every document on the hard disk, they will not be able to separate that which is legally privileged from the rest of the material which they may seize lawfully. Therefore, how can they operate in those circumstances without, perhaps inadvertently, taking away with them material which is legally privileged?
Lord Williams of Mostyn: As I know myself, in practice, such a situation does present difficulties, and I shall go on to explain the safeguards which may be required. I am grateful to the noble Lord for that inquiry. However, I have had helpful consultations with representatives of the Bar Council and the Law Society, who have recognised the responsibility that exists for the proper investigation, detection and prosecution of crime, and have, of course, recognised the fundamental value of which the noble Baroness spoke—that legally privileged material should be protected. I believe that that can be done and perhaps I may develop the point in a moment.
Amendments Nos. 118 and 119 are not workable because the subsections which they aim to remove are essential in that they disapply the normal legal barrier to seizing anything that a person has reasonable grounds to believe is legally privileged.
Amendments Nos. 118B, 119A and 122C and the consequential, relatively minor amendments are more comprehensive. However, their consequence would be to destroy the necessary scope to seize and retain
924
legally privileged material in limited circumstances—I underline the following words—for strictly limited purposes.
If the new powers which we propose are to be fully effective in practice, they must allow for seizing items which are reasonably believed to be or to contain legally privileged material. The police may wish to seize a roomful of papers for examination, which the occupier—perhaps a solicitor or a prospective defendant—asserts contain a few items of legally privileged material on, to take the noble Lord's example, a hard disk, although he will not be able to identify the precise location. The police may seize a computer hard drive, which, they are told, contains legally privileged material but which, nevertheless, they need to seize.
If, either due to time constraints or the technology available, in either case it is not reasonably practicable for the police to separate the legally privileged material, it may be necessary to seize it as part of a larger bulk of material. However—I come directly to the noble Lord's point—once any necessary process of analysis, separation or sifting had been carried out off the premises, items identified as legally privileged would have to be returned. The only exception would be in relation to inextricably linked material. In order to permit the seizure of legally privileged material in that type of circumstance, it is necessary to disapply the provision on seizure found in Section 19(6) of the Police and Criminal Evidence Act.
The new powers are necessary in order to meet the problems highlighted in the Bramley case, which, as Members of the Committee know, has been the subject of a great deal of analysis and legal discussion. Criminals are becoming increasingly sophisticated and, increasingly, they use technology for criminal purposes. We have tried to carry out a fair balancing exercise in Part 3; in other words, to include safeguards in order to ensure that the rights of a person from whom material is seized are protected.
Several of those safeguards are relevant. There will, for the first time, be a statutory right to apply to a judicial authority for the return of legally privileged material, whether it is seized under the new powers or otherwise. That will enable disputes about legally privileged material to be dealt with judicially more quickly and effectively.
When an application is made for the return of legally privileged material seized under Part 3, an obligation to secure the material will arise once the application is made. Once secured, the material can be examined only with the consent of the person from whom it has been seized, thus giving him control. Where legally privileged material is retained on grounds of inextricable linkage, the use to which it can be put is very limited. It can be used only to facilitate the use in any investigation or proceedings of the material to which it is inextricably linked.
We do not wish—I say this as a matter of clear policy—to compromise the status of legally privileged material. We seek to introduce limited flexibilities

925
which are necessary but subject to safeguards. If the amendments were carried, we would not achieve that aim.
A good deal of extremely serious crime is carried out by virtue of, or may be evidenced by, electronic records which, even 25 years ago, we would not have thought of as documents. I believe that the public have rights in the same way as do defendants or prospective defendants. I consider that the balance that we have here is scrupulous and proportionate.
I turn to Amendments Nos. 118A, 122ZA, 122B and 122YA. We do not believe that Amendment No. 118A is necessary. As can be seen from Clause 54(4), our proposals already make it clear that it is desirable to allow interested persons or their representatives to be present at an examination. That can certainly be expanded upon further in the guidance which will support implementation.
Where an application is made to the appropriate judicial authority for the return of legally privileged material—again, I hope that this covers the point raised by the noble Lord, Lord Avebury—the property must be secured pending agreement on examination procedures or examination under the direction of the judicial authority. That provides ample scope for proper supervision of the process. I do not believe that Amendment No. 122ZA improves the wording of Clause 54(4) and I do not consider that it serves any purpose.
With regard to Amendment No. 122B, I cannot support the introduction of a requirement for a written notice where an examination has been conducted in the absence of the relevant person. In most cases, the reasons are likely to be operational requirement or the continuing unavailability of the person concerned. We must strike the balance to which I alluded earlier.
Amendment No. 122YA would require the return of non-retainable material within 48 hours. Our proposed wording is,
"as soon as reasonably practicable".
We shall emphasise in guidance that that implies return as soon as the whole examination has been completed unless there are very special factors which warrant delay; for example, the unavailability of the person to whom the material is to be returned or the need, in practice, to agree a convenient time to return a large volume of material. Some of the amounts of material stolen are very large. I do not see the benefit of setting a specific target such as 48 hours, which, on the large majority of occasions, I hope would be capable of being bettered. Therefore, for the reasons that I set out in a little detail, we are not able to support any of the amendments in this new, enlarged grouping.
5.15 p.m.
Lord Renton: Before we go any further, I wonder whether the Attorney-General will clarify one matter. Quite frankly, I am a little mystified by the early clauses in Part 3. Having read them, I wondered to what extent judicial authority would be required for any seizure—in relation to which there are very wide
926
powers—granted under Clauses 51 and 52. When I looked through the rest of Part 3, I found Clause 60, which is entitled:
"Application to the appropriate judicial authority".
That clause makes it clear that it is assumed that no judicial approval is required for the exercise of the powers in Clauses 51 and 52. Clause 60(2) states:
"Any person with a relevant interest in the seized property may apply to the appropriate judicial authority".
It is not until after the seizure has taken place that judicial authority will ever be required. Bearing in mind the fact that very wide new powers of seizure will be given, it is rather strange that those powers can be exercised without any application for judicial power. Perhaps the Attorney-General would confirm that that is the case—the matter is basically relevant to our discussion of Part 3.
Lord Williams of Mostyn: As always, I am grateful to the noble Lord. The limit is made clear in Clause 51(1)(a), on page 44 of the Bill. That paragraph states that the person has to be "lawfully on any premises" and that if he,
"finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search",
various consequences follow. I stress that he has to be lawfully on the premises and that he will need to execute his warrant.
The question of judicial authority is the second stage at which there is disagreement. The aggrieved party who has had his property seized—but only lawfully, on the basis of lawful presence and lawful authorisation—can then make the application.
Lord Avebury: I am most grateful to the noble and learned Lord for his explanation of what happens when the item seized is a hard disk that contains some material that is legally privileged. I am particularly grateful to him for his assurance that if legally privileged material is discovered, it will be returned as soon as practicable. That matter is covered in Clause 54(2)(c). However, that raises a further question: if the hard disk is found to contain legally privileged documents, how can they be separated from the rest of the hard disk? Physically that is not an option, although I suppose that the police could cut the documents from the hard disk and paste them on to a floppy disk or zip cartridge and return that to the owner. I am curious to establish how that part of the Attorney-General's assurance would be implemented if the data were entirely in electronic form. The only practicable approach seems to involve the normal method of cutting the document from the hard disk and pasting it on to some other electronic media. How else will it be possible to implement the assurance?
Lord Williams of Mostyn: So far as hard drives are concerned, the normal procedure would be to image the disk, not to seize the original. Our guidance is intended to deal with that. If the noble Lord wants to raise such questions—I know that he is extremely

927
knowledgeable about such matters and more of an expert than many of us—we are more than happy to have his views on the construction of the guidance.
There are difficulties in this context and the public do have rights. I know from instances with which I have been concerned that sometimes the claim for legal privilege is a device. Sometimes—very rarely—the legal adviser will be colluding in crime. That should not give a legitimate cloak to what I stress is very serious crime indeed. One is not talking about the ordinary run of criminal cases that are tried in a magistrates' court or the Crown Court. In my experience, in some cases one is talking of international criminality of the grossest potential and actual damage to the public interest.
In this context we have tried—I stress that we have carefully consulted the Bar Council and the Law Society—to get a decent recognition of and proportionate compromise between two interests that appear to clash but which do not do so because legal professional privilege is essential for a civilised society. The investigatory powers that we are considering are intended to protect it.
Baroness Buscombe: I thank the noble and learned Lord the Attorney-General for his response. I hear what he said and I appreciate that the Government are endeavouring to seek the right balance that is, in their view, proportionate. It would not be of great assistance to the Committee if we were to discuss the matter further this evening. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 to 118B not moved.]
Clause 51 agreed to.
Schedule 2 agreed to.
Clause 52 [Additional powers of seizure from the person].
[Amendments Nos. 119 and 119A not moved.]
Clause 52 agreed to.
Clause 53 [Notice of exercise of power under s. 51 or 52]:
[Amendments Nos. 120 to 122 not moved.]
Clause 53 agreed to.
Clause 54 [Examination and return of property seized under s. 51 or 52]:
[Amendments No. 122 YA to 122B not moved.]
Clause 54 agreed to.
Clause 55 [Obligation to return items subject to legal privilege]:
[Amendment No. 122C not moved.]
Clause 55 agreed to.
Clause 56 agreed to.
Clause 57 [Property seized by constables etc.]:
[Amendment No. 122D not moved.]
Clause 57 agreed to.
Clauses 58 and 59 agreed to.
Clause 60 [Application to the appropriate judicial authority]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 123:
Page 52, line 39, at end insert—
"() An application made under subsection (2) shall be heard by the appropriate judicial authority within 48 hours of it being made."
The noble Baroness said: Amendment No.123, together with Amendment No.123A, relates to Clause 60, which deals with remedies and safeguards in the event that property is seized in the exercise of a relevant power of seizure. We are supportive of the clause in principle but, as it is currently drafted. there is no time frame within which such an application must be heard for the return of the property. As such, there is no incentive for the appropriate judicial authority to move quickly or, indeed, at any pace at all. It should be remembered that some of the material may be legally privileged. In addition, it is possible that a person's livelihood is on hold pending the recovery of seized material. If it is not therefore necessary or proper to retain the material to further an investigation, the property should in our view be returned as expediently as possible. I beg to move.
Lord Williams of Mostyn: We agree that applications to the appropriate judicial authority for the return of seized property should be heard as quickly as possible. We believe that that is essentially a matter for Crown Court rules rather than for legislation.
It is envisaged that when an application is made the parties may want to delay the hearing while they try to agree either between themselves or—this is increasingly common now, as the noble Baroness will know—through an independent counsel acting as a "third party" arbitrator. When the material is secured, that will depend on the consent of the person from whom the material was seized. When the appropriate judicial authority orders the return of the property, the implication of the current proposal in Clause 60 is that the return should take place immediately or as soon as is reasonably practicable. I believe that that is right—one does not need to give a judicial authority an extra level of discretion to specify a reasonable time, as the amendments would do.
I cannot therefore support the amendments. However, in answer to the concerns of the noble Baroness, I undertake to consider whether further guidance is needed in the code of practice to emphasise and underline the swift return of property seized. The time limits for hearing applications—the other aspect of the noble Baroness's concerns—will be considered as part of the Crown Court rules which will be promulgated to support this legislation. I hope that that is helpful.
Baroness Buscombe: I thank the noble and learned Lord for his response to the amendment and appreciate his undertaking to consider whether or not further guidance is required. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
[Amendments Nos. 123A and 124 not moved.]
Clause 60 agreed to.
Clause 61 [Cases where duty to secure arises]:
[Amendment No. 124A not moved.]
Clause 61 agreed to.
Clause 62 [The duty to secure]:
[Amendments Nos. 125 and 126 not moved.]
Clause 62 agreed to.
Clause 63 [Use of inextricably linked property]:
[Amendment No. 126A not moved.]
Clause 63 agreed to.
Clauses 64 to 68 agreed to.
Clause 69 [Application to Scotland]:
[Amendments Nos. 126E and 126C not moved.]
Clause 69 agreed to.
Clause 70 [Application to powers designated by order]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 127:
Page 63, line 33, leave out "modify any enactment that makes" and insert "make any modification of any enactment making"
The noble and learned Lord said: This group consists of government Amendments Nos. 127 to 129 and opposition Amendments Nos. 130 and 131.
The purpose of Part III is to give additional powers of seizure to the police. The existing powers of seizure to which the new powers apply are listed in Schedule 2 to the Bill.
Clause 70(1)(a) gives an order-making power which enables other powers to be added to the list in Schedule 2. Subsection (1)(b) provides that amendments can be made to Part III if they are consequential to the addition of another power to Schedule 2. Subsection (1)(c) gives the power to amend by order the actual piece of legislation being added to Schedule 2. This is necessary because a consequential amendment to that underlying piece of legislation may be needed to ensure that it works properly.
As originally drafted, subsection (1)(c) did not provide that these amendments must be consequential and any amendment to the piece of legislation being added to Schedule 2 could have been made. We are grateful, not for the first time, to the Delegated Powers and Deregulation Committee for drawing that to our attention. We did not intend the provision to be this wide and we fully accept the committee's recommendation on that point. Therefore, if carried, our amendment would insert into subsection (1)(c) a qualification restricting such amendments to ones which the Secretary of State considers appropriate in consequence of the addition of the new power to Schedule 2.
The amendment to subsection (4) is needed as our amendment to subsection (1)(c) no longer contains the word, "modify".
I accept the principle behind the opposition amendments to Clause 70. I am told that they are not technically perfect. Apart from that, I believe that we have met the point by putting forward amendments which are technically better drafted and, on that basis, since we have accommodated the point although not the precise wording, I invite support for the government amendments and ask the Opposition not to move their amendments. I beg to move.
Lord Renton: When one sees the Secretary of State given power to alter an enactment—here he is given power to alter a number of complex provisions embodying new law—one wonders whether that is sound and in order. However, subsection (3) states that the power given to the Secretary of State shall be exercised by statutory instrument and that no order shall be made unless a draft has been laid before Parliament. That means that positive approval by Parliament is needed, and that puts it in order.
These are the sorts of provision that the excellent committee on delegated powers examines and it has given them clear passing. The committee says that the provisions appear to have been drafted carefully in the light of the requirements of the ECHR. Our conscience, therefore, can be more or less satisfied, although one should always look at the possibility of a Henry VIII clause.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Ampthill): I must inform the Committee that I cannot call Amendment No. 128.
[Amendments Nos. 128 and 129 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 130:
Page 63, line 35, at end insert "which the Secretary of State considers appropriate in consequence of any provision made by virtue of that paragraph"
On Question, amendment agreed to.
[Amendment No. 130A not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 131:
Page 64, leave out line 2.
On Question, amendment agreed to.
Clause 70, as amended, agreed to.
Clause 71 agreed to.
Schedule 3 agreed to.
Clauses 72 and 73 agreed to.
Clause 74 [Use of video and telephone links for decisions about detention]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 131A:
Page 65, line 8, after "inspector" insert "(who is present at another police station)"
The noble Lord said: The provisions grouped with Amendment No. 131 A involve Clauses 74 and 75 and relate to decisions to be made about detention, in

931
particular to extend the detention of somebody who has not yet been charged. A large part of the reason for tabling these amendments and querying the provision is because of the "overstretch" of the inspector ranks of the police force.
Inspectors are being given additional duties, in particular by Clause 75, and will be allowed in the future to conduct some of their present duties, such as extending detention, over the telephone and through video conferencing. The inspector ranks are extremely concerned about that because of the huge reduction in the numbers of inspectors. That process started with the Sheehy report since when a considerable drop in the numbers of inspectors, chief inspectors and indeed superintendents above them has taken place. That means it is more difficult for them to take these decisions in the way they would wish.
The other day one of the leading members of the Inspectors' Central Committee said that the video reviews are another measure to compensate for the lack of numbers in those ranks. The members of the service have always been proud of the independent element that they are able to bring into the system of justice, but a video review of detention appears to make it much more doubtful whether such good decisions can be made without their being present and listening to the arguments made, including those made by the detained individual. Modern communications may be wonderful but if reviews are to be carried out by looking at a television screen or via a telephone link that could cause a downgrading in the independent element of the inspection.
In one sense, matters are made easier. The inspectors would not have to drive to a different police station in order to make a decision about a detention, but in another sense there is a danger of downgrading the authority with which such decisions are made. That is a matter of concern. I would be grateful if the Minister could comment on the reasons for doing this. I beg to move.
Lord Renton: I do not believe that we can possibly object to the strengthening, as the Government propose, of the 1984 Act. In my opinion, it was an adventurous Act that dealt with the technical developments that had taken place in our society and indeed all over the world. The Government should be grateful to my noble friend Lord Cope for the, further strengthening of the law that he has proposed in his amendments. I shall not trouble your Lordships by taking up time by going through them in detail, but they appear to me to be helpful and to strengthen the Bill, which I should have thought the Government would welcome.
Lord Bassam of Brighton: All these amendments refer to Clause, 74 which introduces arrangements for carrying out reviews of the continuing need for detention by telephone and provides for the Secretary of State to make regulations.
The purpose of Clause 74(2) is to allow certain reviews, as the noble Lord, Lord Cope, has said, to be carried out by telephone. The reviews in question must
932
be carried out by an officer of at least the rank of inspector and must normally take place no later than six hours after detention was first authorised and then at intervals of nine hours. Detention for longer than 24 hours requires the authority of an officer of at least superintendent rank and it is not proposed to make the telephone option available for these superintendents reviews.
The purpose of the proposed provisions is to enable reviews of detention and other custody-related decisions to be carried out using video-conferencing and to allow for certain reviews to be conducted over the telephone in extreme circumstances. I need to stress that point. In our view, safeguards and supporting procedures are already included and the proposed amendments would detract from the flexibility and workability of the arrangements. That also is an important element of what we are saying to the House this afternoon.
Reviews of detention should only be carried out by telephone in extreme circumstances and, where that is the case, it does not seem sensible to restrict the option to a reviewing officer who is present at another police station as Amendment No. 131A would require. If a reviewing officer is prevented from attending the police station where the detainee is held—it may be that he has been delayed by transport difficulties or by poor adverse weather combined with transport difficulties or by some other circumstances beyond his control—he should be able to make use of mobile telephone facilities to conduct the review.
Nor do I believe that we should make the changes suggested in Amendments Nos. 131 C and 131 F. Where any review or other decision-making process is carried out by telephone or video-conferencing, there is provision for any record required in connection with it to be made by another officer who is present at the police station with the detainee. There is no requirement for reviews carried out at police stations in the standard manner to be tape or video recorded and no obvious reason to introduce such a requirement where those processes take place remotely.
As regards Amendment No. 131E, we do not want to restrict the scope for carrying out decisions about detention by video-conferencing to circumstances where it would not be practicable for an officer present at the station to perform the relevant functions. PACE offers scope for any officer to act as the custody officer where circumstances demand it, but the issue here concerns ensuring high-quality decision making and access to specialist expertise by enabling certain decisions to be taken remotely.
There may indeed be an officer present at the station who could adopt the custody officer role and, for example, make decisions about charging and bail. However, the proposed arrangements allow the alternative of contacting a skilled and experienced custody officer via video-conferencing who could significantly enhance the process by bringing his fall knowledge and expertise to bear.

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Amendments Nos. 131B and 13ID suggest restricting telephone reviews and all decision making via video-conferencing to circumstances where secure communications are available. That would place unrealistic restraints on those options. Sophisticated technical arrangements are needed to ensure that such connections are completely secure and that the contents of the relevant discussions are unlikely to be such as to demand complete security. Clearly there may be instances where security is a more pressing issue, but we would argue that those need to be judged and assessed on an individual basis.
In general terms, I can certainly understand concerns being expressed about the concept of custody-related decisions being taken remotely. All of us want to ensure that such decisions are fair, effective and soundly based. However, I am sure that what is being proposed will tend strongly to improve the quality of such decisions.
As I have already explained, our clear intention is that reviews by telephone will be rare exceptions. They are not a fully satisfactory substitute for reviews where the officer can see and hear the person concerned, but they are very much better than dispensing with a review altogether or introducing a significant delay into the review process.
I recognise that dealing with a range of custody-related decisions using video-conferencing is breaking new ground and that is why we are committed to thorough trials before considering the general application of such provisions. However, I believe that it would be wrong to ignore the scope for developing technology to deliver real improvements to the quality of the relevant decision-making processes. Custody work is increasingly recognised as an important specialism within policing and the provision of a direct link to an expert practitioner can only help to ensure that the right decisions are made. Video links are proving their effectiveness across an ever wider range of activities and we should not lose the opportunity to test them in the way that is proposed.
I understand the motivation for the various amendments that are suggested, but I do not believe that they are necessary or, in these circumstance, at all helpful. The proposed provisions are a sound and carefully limited basis on which to test the new concept. We are prepared to revisit them if trials highlight issues of principle or substance. For those reasons I hope that the noble Lord will feel able to withdraw his amendment.
Lord Cope of Berkeley: It is most unsatisfactory to have to consider this legislation at such speed when the provisions have not been considered at all in another place just because the Prime Minister wants to hold a general election a year early. However, that is the case. In the circumstances, I shall not pursue the detailed points in the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 131B to 131F not moved.]
Clause 74 agreed to.
Clause 75 agreed to.
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Business of the House: Order of Business
5.50 p.m.
Lord Carter: My Lords, after the announcement earlier today, I am now in a position to announce that the order of business has been agreed between the usual channels for the remainder of this Session.
Tomorrow the House will meet at 2.30 p.m. as usual for Starred Questions. My noble friend the Leader of the House will move a business Motion to suspend Standing Orders necessary to enable us to finish a number of Bills in the next three days. Assuming that the business Motion is agreed to, we will then take the remaining stages of the Criminal Justice and Police Bill; which will be followed by the remaining stages of the Children's Commissioner for Wales Bill; and finally the remaining stages of the House of Commons (Removal of Clergy Disqualification) Bill.
On Thursday 10th May the House will meet at 11.30 a.m. for Prayers and Starred Questions. We will then take the remaining stages of the Armed Forces Bill and the Social Security Contributions (Share Options) Bill.
Assuming that the Bills have been received from another place, we will then take all stages of the Rating (Former Agricultural Premises and Rural Shops) Bill, the Finance Bill and the Consolidated Fund (Appropriation) Bill. Finally, if any amendments are received from the other place in relation to the Health and Social Care Bill, they will also be considered on Thursday.
On Friday, the House will meet at 9.30 a.m. for prayers. There will be no Starred Questions. We will then deal with any amendments which may have returned from another place. Finally, Royal Assent will be given to a number of Bills and the House will then adjourn.
Parliament will be dissolved on Monday 14th May but that will be done by proclamation and will not involve any proceedings here.
I should also inform the House that it has been agreed that the business which had been tabled for Wednesday and Thursday this week will not now be taken. The Motion standing in the name of the noble Lord, Lord Brooke of Alverthorpe, and the Committee stage of the Culture and Recreation Bill will be removed from Wednesday's and Thursday's Order Papers respectively.

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Your Lordships may be wondering what the arrangements will be for the tabling of amendments and for speakers' lists. In relation to the rating Bill and the Finance Bill, speakers' lists will be put up in the Government. Whips' Office and will remain open until 6 p.m. tomorrow. The Clerk of the Parliaments has agreed that the Public Bill Office will accept amendments to any Bill in advance of Second Reading and will also relax the deadlines for late tabling of amendments as much as possible.
It may also help if I list the Bills which are currently before this House or in another place which will not be proceeded with this Session. There will be no further proceedings on the Homes Bill; the International Development Bill; the Tobacco Advertising and Promotion Bill; the Hunting Bill; the Commonhold and Leasehold Reform Bill; the Culture and Recreation Bill and the Adoption and Children Bill.
It may also be helpful if I tell your Lordships that an informal copy of the order of business for the next three clays, Wednesday, Thursday and Friday, is available in the Printed Paper Office.
Lord Henley: My Lords, first, I offer my commiseration to the noble Lord, Lord Brooke of Alverthorpe, the noble Baroness the Leader of the House, the noble Lord, Lord Graham of Edmonton, and many others who have been denied making their speeches in tomorrow's great debate. Perhaps I may offer my thanks to the noble Lord the Government Chief Whip for his useful statement and for the fact that he is making available to all noble Lords a copy of the draft Order Paper. I trust that it will be available in the Government Whips Office tonight.
We had most useful and constructive discussions within the usual channels and I am grateful for all the assistance which the Government Chief Whip gave to us. We on this side of the House were keen to be as co-operative as possible, as I made clear earlier. However, we wanted to be co-operative on the basis that the Government got the basis of their programme but only as regards those Bills which have received adequate and proper scrutiny within this House. We must always remember that this House is a revising Chamber and it is important that we give adequate scrutiny to all Bills which come before us.
The noble Lord the Government Chief Whip listed a number of Bills which have not reached the statute book and with which the Government will not proceed further. I ought to remind the noble Lord that we had a late start to this Session and that a number of those Bills came before this House at an early stage of it. Some had their First Reading in this House as early as last February but were not proceeded with further because the Government decided that they had to give greater priority to Bills which they knew perfectly well had no chance whatever of getting on to the statute book. The Government also felt it important to allow the House of Commons a full week off in February for half-term and some two extra days holiday then for this House when they could have pursued the Bills. The Government are also bringing this Parliament to a premature end.
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Some of those Bills might in due course proceed to the statute book when the new Conservative government return to office after 7th June. We will pursue them as appropriate. However, as I made clear, we did not think it right that we should give time to Bills which have not received proper scrutiny in this House.
I conclude by thanking the noble Lord for his co-operation in these matters and I hope that we can continue with the same degree of co-operation during the remaining days of this Parliament.
Lord Roper: My Lords, I am grateful to the Government Chief Whip for the consultation he has carried out during the past few days, in particular today, in preparing the order of business for the next three days. In general, we on these Benches welcome what is now put forward. As a newcomer to the usual channels, I was grateful to see the degree of consultation which takes place in your Lordships' House on these matters. I am also particularly grateful to the Clerk of the Parliaments for agreeing to relax the normal arrangements for the tabling of amendments to Public Bills. We will be able, for example, to table amendments for the Report stage of the Criminal Justice and Police Bill until noon tomorrow and consequentially for the other legislation coming forward.
As the Opposition Chief Whip said, there are a number of Bills with which we are not proceeding and the Government Chief Whip has listed them. We on these Benches would have liked to see three of those Bills go forward. We would have liked to see going forward the Homes Bill, in particular its provisions relating to the homeless. We are sorry that it was not possible to reach a consensus through the usual channels on that measure.
Similarly, we would have liked to see go forward the International Development Bill, for which there was a good deal of support in another place and which could have reached the statute book in the time remaining. Finally, we would have liked to see the Tobacco Advertising and Promotion Bill, in respect of which there was a strong feeling that it ought to reach the statute book. We on these Benches regret that we have not been able to find a way to do so before the end of the Session.
In conclusion, I believe that with those exceptions the method we have proceeded with has been useful and I hope it augurs well for the remainder of our business of this Session.
Lord Carter: My Lords, I am grateful to the noble Lords, Lord Henley and Lord Roper. The draft Order Paper will be available in the Printed Paper Office.
I do not want to get into a debate on the Bills with which we are not proceeding. As I am sure the Leader of the Opposition and the Opposition Chief Whip know, there are plenty of precedents of the then Labour oppositions—in 1983, 1987, 1992 and 1997, and I researched all the relevant copies of Hansard to find them—co-operating with the government to get

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certain Bills through. The country will have to decide on the priorities of the party opposite when they consider that it was not able to reach agreement in respect of Bills to help home buyers and the homeless, to help the third world and to stop tobacco advertising. But there we are.
We have now agreed the business and I hope that we can proceed with expedition. I hope that the House will not have to sit late on Wednesday or Thursday, and I am pleased that we have been able to reach agreement on the programme. I look forward to Friday.
Lord Renton: My Lords, can the noble Lord clarify the position with regard to the Criminal Justice and Police Bill? It is a far-reaching Bill and we have not discussed it thoroughly in Committee. A Bill which extends the powers of the courts and the police, and indeed extends the powers of individuals which may not always be well motivated, is one which we should consider carefully and not in a hurry. Can the noble Lord say whether the Government intend to get it on to the statute book in this Parliament?
Lord Carter: My Lords, having discussed the matter with the usual channels, the Bill should complete Committee stage today. We hope that, with the tabling of Report stage tomorrow, we can reach agreement on the Bill. Noble Lords will understand that, as the matter is in play at the moment, I must be careful about how I phrase my words. We hope that the Bill will reach the statute book this Session.
Lord Cope of Berkeley: My Lords, a little earlier when the noble Lord explained that the Government did not intend to proceed with Part 2 of the Criminal Justice and Police Bill, it was clear that there were various other clauses over which a question mark hung. We hope that the Government will not proceed with some other matters, but in the circumstances we are prepared to allow other parts of the Bill to proceed because we believe that those measures should be put in place, even if we have detailed comments upon them.
Lord McNally: My Lords, I ask the Chief Whip to listen. We have heard from two most distinguished lawyers on the Back Benches, latterly, the noble Lord, Lord Renton, about the haste with which the Bill is passing through the House. The noble Lord must not count his chickens in any way. We have many misgivings about dealing with a Bill of this magnitude at such speed.
Lord Carter: My Lords, sometimes it is hard enough to count my colleagues instead of chickens. All I can say is that we should complete the Committee stage today. I believe that the noble Lords, Lord Cope and Lord McNally, understand the position. We shall explore their problems with the Bill as we proceed with the Committee stage today. We have agreed to finish the Committee stage today and then review the
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position. We hope to reach agreement so that this Bill, which deals with important matters to do with criminal justice and police powers, can reach the statute book. That is why we have tabled Report and remaining stages for tomorrow.

Criminal Justice and Police Bill
6.2 p.m.
House again in Committee.
Clause 76 [Use of video links for proceedings about Terrorism Act detention]:
[Amendments Nos. 131G to 131J not moved.]
Clause 76 agreed to.
Clause 77 agreed to.
Clause 78 [Codes of practice]
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 131K:
Page 69. leave out lines 6 and 7.
The noble Lord said: The Committee now moves to that part of the Bill which deals with the video recording of interviews. This matter appears to have lost the interest of some noble Lords. These amendments are directed at the code of practice which is to be prepared in this regard. The particular subsection that is dealt with by Amendment No.131K provides that the code of practice can vary in different parts of the country. That seems rather odd. Why should different parts of England be treated differently from the point of view of the code of practice for the video recording of such interviews?
Similarly, although I believe more understandably, Amendment No. 131L goes to the subsection which suggests that different offences or descriptions of offenders may be treated differently in the code of practice. I can see that more serious offences may require greater safeguards, but it seems odd that descriptions of offender should he treated differently in the code of practice.
Finally, Amendment No. 131M in this group proposes that where the code of practice is to be, first, introduced and, secondly, altered at a later stage, the matter should be dealt with in Parliament by the affirmative rather than negative procedure. In view of the lack of time that we are devoting to the matter at this stage, I believe that that is a reasonable suggestion. I beg to move.
Lord Bassam of Brighton: If taken together, these amendments would undermine the whole purpose of Clause 78, which is to provide a more straightforward mechanism for changes to the codes to be trialled. Clause 78 enables proposals for limited amendments to the codes for trial purposes to be made subject to the negative resolution procedure. The clause works by inserting after Section 67(7) of PACE three new subsections, (7A), (7B) and (7C). New subsection (7A) provides for an order to be made so that an existing code of practice can be modified. Subsection (7B) sets out the limits for such modifications to a code of

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practice in relation to the length of time for trialling, designated areas and classes of offences or offenders. Subsection (7C) sets out the requirement for the order to be subject to the negative resolution procedure.
Amendments Nos. 131K and 131L simply remove from subsection (7B) two of the three trialling limitations. The effect of the wording proposed by Amendment No. 131M would appear to be a requirement for any modifications to the codes to be subject to the affirmative resolution procedure. The Committee needs to be aware that the situations in which it is desirable to trial amendments to the PACE codes of practice are becoming increasingly common. This increase reflects the legislative changes to the Police and Criminal Evidence Act as well as the evolution of police practice—new procedures and techniques—and consequently the knock-on effects for the codes of practice.
If we supported the amendments, whenever it was considered desirable to pilot changes to the codes of practice it would not be possible to limit trials to designated areas or to particular types of offences or classes of offender and any changes would require the full affirmative resolution procedure. I assure the Committee that we do not seek to shortcut Parliament by the provisions of Clause 78. Before any changes to the codes of practice are implemented nationally they will still be subject to the same procedure of public consultation and full debate before both Houses, as is already required by Section 67 of PACE.
We believe that it is important for a number of changes to the codes of practice to be trialled before they are implemented more widely. It is our intention to do this with the proposals for reviews of detention by video link and other custody decisions which are proposed in Clause 74. In order for trials to be carried out effectively and evaluated properly, it may well be necessary for them to be conducted in particular areas and with specific types of offence and classes of offender. Additionally, for trials to be conducted more readily the negative resolution procedure which we propose is a more flexible way to achieve that end.
I can understand some of the concerns raised by the noble Lord, but what we are trying to do is to ensure that in making changes for the longer term we have effective trialling in the short term. In that way we can effectively evaluate those trials so that before we advance to full implementation across the country we have a better picture of how the measures may work in practice. We argue that ultimately there are safeguards here and no short circuit is intended.
Lord Cope of Berkeley: We have not been given any examples but have been told that it is all about pilots. I shall not pursue the matter at this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 131L and 131M not moved.]
Clause 78 agreed to.
Clause 79 agreed to.
Clause 80 [Authority for intimate searches]:
Baroness Whitaker Baroness Whitaker moved Amendment No. 131MA:
Page 71, line 8, at end insert—
"(2) After subsection (7) of section 55 of the 1984 Act there is inserted—
"(7A) The Code of Practice issued by the Secretary of State under section 66 shall provide guidance as to the circumstances in which it would be proper to consider that it is not practicable. for an intimate search to be conducted by a suitably qualified person.""
The noble Baroness said: I am grateful to my noble friend the Minister for his letter to me on this matter. I hope he will forgive me if I nevertheless briefly air the concerns of the Joint Committee on Human Rights.
An intimate search—for example, a physical examination of a body orifice other than the mouth—most usually of the anus or of the vagina, is a highly intrusive procedure. It is permitted under the Police, and Criminal Evidence Act 1984, only when an officer of the rank of superintendent or above,
"has reasonable grounds for believing—
(a) that a person who has been arrested and is in police detention may have concealed on him anything which—

(i) he could use to cause physical injury to himself or others: and

(ii) he might so use while he is in police detention or in the custody of a court; or

(b) that such a person—

(i) may have a Class A drug concealed on him; and

(ii) was in possession of it with the appropriate criminal intent before his arrest".

Where the search falls under paragraph (a), it may be conducted either by a person with medical qualifications or by a constable of the same sex as the detainee if,
"an officer of at least the rank of superintendent considers that"—
to have the medical examination—
"is not practicable.
This Bill would allow an officer of the rank of inspector to authorise such a search, if necessary by force, by a constable with no medical qualifications.
The Joint Committee on Human Rights does not in any way dissent from the need to have this power to search. However, as it pointed out in its first report at paragraph 75:
"It is hard to imagine a more intrusive or humiliating police procedure which could be lawful".
The committee noted a risk that the searches might violate Article 3 concerning freedom from inhuman or degrading treatment and Article 8, the right to respect for private life.
As a member of the Immigration Complaints Audit Committee, I received complaints where young persons of perhaps 19 were in acute distress at the prospect of being examined in this way by a law enforcement officer. Not all cultures view these events with equanimity. They are associated with violation

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and torture. That is not to say that the power should not be there. But that is why the Joint Committee on Human Rights expressed concern about,
"reducing the level of seniority of the officer who has to decide … whether it is impracticable for an intimate search to be conducted by a medically qualified person".
The committee was,
"particularly disturbed by anything which even slightly erodes the protection for a person's interests in physical integrity, and bodily privacy, or gives the impression that an interference with them is being taken less seriously than it was".
When the committee took evidence on this point, the Government told it that, in practice, a constable would rarely be authorised to conduct such a search, and would be so authorised,
"only in a wholly exceptional and urgent case to prevent injury to the detainee or other people from a hidden weapon such as a razor blade, where no medically qualified personnel could be reached quickly".
The committee accepts that. However, regard for Articles 3 and 8 indicates that guidance for exercising the discretion to authorise a constable to conduct an intimate search,
"should be included on the face of the legislation".
The most reasonable and easy way to achieve this general objective would be to amend Clause 80 with the proposed amendment. There would then be a necessary consequential change to the code of practice.
The Joint Committee asked for guidance to be included on the face of the Bill. However, it may work as well, and allow time for consultation before the code is adjusted, to follow my proposed amendment. The whole purpose of the amendment is to ensure that the limits of discretion which this more junior officer may exercise are defined with greater clarity. I beg to move.
6.15 p.m.
Lord Cope of Berkeley: I rise to point out that this is another part of the Bill—there are more parts to come—where the permission of an inspector is required instead of that of a superintendent. The underlying reason for that is that there are fewer superintendents than junior officers. As a matter of fact, there are also fewer inspectors. Therefore, it all adds to the overstretch of the work of the inspectors. I hope that this provision will not lead to a downgrading of the quality of decisions.
Lord Williams of Mostyn: I am grateful for the thoughtful way that my noble friend Lady Whitaker has brought the matter forward. Intimate searches by junior officers—constables—are very rare indeed. There were only four out of a total of 170 searches in 1999–2000.
I recognise the force of the noble Baroness's comments and that there is a good case for guidance in circumstances in which it might reasonably be considered that it was not practicable for a doctor or a nurse to carry out such a search. Probably, in practice, the circumstances are likely to he the situation described by my noble friend where there are
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reasonable grounds to believe that a detained person is concealing a dangerous article and speedy action is necessary.
In certain circumstances, intimate searches may also be made for Class A drugs. However, there is no discretion for searches in that category to be carried out by anyone other than a suitably qualified person.
I hope that I can assist my noble friend by underlining that a full review of all codes of practice under PACE is currently being carried out. We would endeavour to incorporate the relevant guidance in Code C. That covers detention, treatment and questioning of persons by police officers.
It is not necessary or appropriate to insert a specific requirement for guidance into the legislation. The codes under PACE, as is well known, refer to many critically important areas of police practice. But PACE does not spell out in detail what they cover. The proposed addition put forward by my noble friend, for reasons I perfectly well understand, would go against that general approach. I hope that my assurance that the full review is being carried out and that our aim is to incorporate the relevant guidance in Code C meets my noble friend's concerns.
Baroness Whitaker: I thank my noble and learned friend the Attorney-General for that answer and for his assurances. The assurance would be stronger if there were more on the face of the Bill. However, in the circumstances, I shall withdraw the amendment and I hope that we shall be able to look at the guidance.
Amendment, by leave, withdrawn.
Clause 80 agreed to.
Clause 81 [Samples]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 131N:
Page 71, line 13, at end insert—
"() Subsection (1) shall not come into force until the Secretary of State has issued guidance about the circumstances and procedures for the authorisation of the taking of samples under sections 62(1)(a) and (1A)(a), and 63(31(b) of the 1984 Act."
The noble Lord said: The noble and learned Lord has said that guidance will be provided. Amendment No. 131N suggests that the new provisions regarding samples should come into force only after completion of the review of the guidance and its publication.
Also in the group is Amendment No. 131P. Clause 81(2) states that whereas an intimate sample has up to now been taken only by a doctor, it can now also be taken by a nurse. That is in a more normal case where it is not being done by a constable. My amendment suggests that it should be done by a nurse only if a doctor is not available. We believe that it should be done by a doctor wherever possible. I beg to move.
Lord Williams of Mostyn: Amendment No. 131N is not necessary as the change in the authority level to which the noble Lord referred does not seek to alter the circumstances in which authorisation can be given. It simply changes the level of authority. There is no diminution of the criteria. The Government have already undertaken to up-date the current guidance in

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Home Office circular 16/95 which provides guidance on the use of the DNA database. The circular, when up-dated, will emphasise that samples should be taken in the least intrusive manner possible.
I turn to Amendment No. 131P. Registered nurses are highly trained medical professionals. They now regularly carry out an expanded range of work, and rightly so, in the National Health Service. Allowing them to take the whole range of samples which at present only registered medical practitioners can take reflects their expanding role in many different medical environments. The proposed change would be in keeping with current practice in hospitals and doctors' surgeries, where they already take such samples. It also means that delay will be avoided, which is useful not only to the investigator but to the person from whom the sample is to be taken.
We do not wish to impose any restrictions on nurses' ability to take such samples. I therefore advise the Committee not to support the amendment.
Lord Cope of Berkeley: In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 131P not moved.]
Clause 81 agreed to.
Clause 82 [Speculative searches]:
[Amendment No. 13IQ not moved.]
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 131R:
Page 72, leave out lines 28 to 30.
The noble Lord said: Clause 82 deals with the right of the police to make speculative searches against records held anywhere in the country. Amendment No. 131R seeks to delete paragraph (d) from the new subsection to be inserted by Clause 82(2). We are unhappy with the prospect of a "public authority", as it is called in paragraph (d), having the same rights with regard to surfing the national databases as the police. The police are highly disciplined and highly trained and are susceptible to discipline in a way that other public bodies certainly are not. We feel that the power given by the clause is altogether too intrusive, too great and too wide. We feel that there is no need to allow public authorities to have that right. We feel strongly that it should not form part of the Bill. I beg to move.
Lord Cope of Berkeley: Can the noble Lord enlarge on the kind of public bodies he has in mind?
Lord Phillips of Sudbury: That is a fair question. One that seems to be within the purview of the provision is a local authority acting under the Protection from Harassment Act 1997. As I am sure the noble Lord will know, that Act provides for a number of hybrid offences that have certain civil as well as certain criminal characteristics. However, where there is a breach of an order made under the Protection from Harassment Act the local authority has the right to
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take the malefactor back to the magistrates for criminal penalty. At that point, if not earlier, the local authority will have the right of speculative search under Clause 82. I give that one example. It may be that in replying to the amendment the Minister will give others.
Lord Williams of Mostyn: There are number of amendments in this grouping—Amendments Nos. 131S, 131T, 131TA, 131TB and 131TC. Does any Member of the Committee wish to speak to those amendments?
Lord Cope of Berkeley: Amendments Nos. 131S to 131TC stand in my name. They deal with overseas authorities that are to be given the same power to trawl through British police records. The power is extremely wide. Any policeman in the world will be able to trawl through information held by our police forces. Those who are competent in their own countries to carry out an investigation—perhaps the local authorities to which the noble Lord, Lord Phillips, referred—will also be able to trawl extremely widely. Any person with,
"functions under any international agreement which consist of or include the investigation of conduct which is … unlawful … or … contrary to international law",
will also be able to trawl extremely widely.
Those are very wide powers. We do not seek to stop them altogether. Our amendments are limited to making the Secretary of State tell Parliament which overseas authorities are to be given the powers and allow Parliament the opportunity to approve the giving of authority to overseas bodies in the way I have described.
Lord Williams of Mostyn: I shall deal with Amendments Nos. 131R, 131S, 131T, 131TA, 131TB and 131TC. Amendment No. 131R would remove paragraph (d) from new subsection (1A), which, if passed, would include public authorities with any functions in any part of the British Islands whose functions consist of or include the investigation of crimes or the charging of offenders, to be included in the list of bodies with whose fingerprint and sample records can be speculatively searched.
Most public authorities which have prosecution functions will not have their own records of fingerprints or samples, but the police ought to be able to check records against those that do—for example, the Immigration Service or in some instances Customs and Excise. If the taking of evidence about fingerprints or DNA is scientifically and forensically accurately done, it is a very important tool indeed. It is objective evidence in a way that identification or circumstantial evidence are not. We believe that it is legitimate to have this extension. That is the short difference of principle and approach between the noble Lord and myself.
Amendment No. 131S seeks to replace ''British Islands" with a longer but identical description. As is well known, by virtue of the Interpretation Act 1978 the term "British Islands" includes the United Kingdom, the Channel Islands and the Isle of Man.

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As regards Amendments Nos. 131T, 131TA and 131TC, for the reasons I gave a few moments ago, what we are looking for in Clause 82 is a clarification of the ability of police forces in England and Wales to check fingerprints and DNA profiles taken under PACE against those held by other British police forces, other public authorities concerned with the investigation of crime that hold such records—I emphasise that point—and police forces and criminal investigation bodies from outside the jurisdiction. I suggest that the drafting properly reflects the roles of the organisations and the purposes for which fingerprints and DNA profiles can be exchanged rather than trying to produce an exhaustive list of all possible police or law enforcement bodies.
I do not think that the proposals in these amendments would work. Potentially they would require the listing of hundreds of police forces around the world as well as other international bodies such as the War Crimes Tribunal. If an affirmative statutory instrument was required each time a request was received from a country for the first time, the system would collapse.
This clause would not give the persons and bodies listed access to our databases. It would enable the police to check our records against those of the law enforcement agencies that have their own records of fingerprints and samples, but only for the purposes of prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. It needs to be borne in mind that any exchange of information must comply with the provisions of the Data Protection Act 1998. I can inform the Committee that requests from abroad will be mediated through the Interpol Section within the National Criminal Intelligence Service.
Finally, Amendment No. 131TB seeks to replace the word "places" with "countries". In this context, the word "places" is meant to be vague. This sub-paragraph contemplates in particular international tribunals which may be set up to deal with war crimes and other crimes against international law. In some of these situations it may be arguable whether we are referring to states, provinces, territories or, simply, "places", whose status in international law for such purposes may be unclear.
6.30 p.m
Lord McNally: Before the noble and learned Lord the Attorney-General sits down, does he have no concerns as regards a matter that was raised during our discussions on the Regulation of Investigatory Powers Act regarding the issue of the "big browser"? Here we see two developments coming together in a pincer movement: first, legislation that will broaden the databases that can be consulted and, secondly, as the noble and learned Lord mentioned earlier, frightening advances in the technologies capable of undertaking such cross-referencing. The two arms of this pincer will give the authorities massive powers to cross-reference data and, to borrow the phrase used in the discussions
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on the Regulation of Investigatory Powers Act, the ability to "big browse" without any real controls over what is being done.
Lord Williams of Mostyn: I am grateful for the noble Lord's intervention. I do not regard these advances in technology as frightening. I recall, as will the noble Lord, Lord Phillips, how when we first started out in the law, many questions were raised and arguments fought over fingerprinting. At that time, neither of us could have contemplated the objective quality of DNA.
I do not wish to refer unnecessarily to a matter that is sub judice, but we know of the allegations made against the man who is supposed to have raped and murdered the young English schoolgirl in northern France. If—I emphasise that word—those allegations are proved, DNA will have provided an extraordinary tool to aid detection. It is not possible to provide for the legitimate use of that tool without sometimes being able to cross-refer. I should have to say to the parents of that child that, although I recognise the civil liberties implications here, in the balance I believe that their needs come rather higher.
This judgment has to be made. One does not want to see the state intrude illegitimately or unnecessarily. However, I believe that we have got the balance right, not forgetting that the Data Protection Act does provide protections to the individual. Any judge who tries a criminal trial constantly has his attention drawn to Section 28 of the Police and Criminal Evidence Act. He is entitled to exclude any evidence which militates against the fairness of the trial.
The technology surrounding DNA evidence has advanced, so much so that in a recent United States case it was said that the odds against someone else having committed the crime were 73 trillion to one; namely, more human beings than have existed since Creation. Although one has to be sceptical and careful, I think that a reasonable balance has been struck. I return to the point I made—which is not simply a call from the hustings. I would find it difficult to explain to an ordinary member of the public who has an interest in these matters and who may be a victim or complainant, or the relative of a victim or complainant, that we have the technology but that we do not allow for its use. I have not found an answer to satisfy myself, let alone one to satisfy such a questioner.
Lord McNally: I believe that the noble and learned Lord is moving on to the slope that leads to a complete national DNA database; namely, that every child born will have his or her DNA profile registered. As the noble and learned Lord has said, such a national database, on which everyone is included, would be a powerful police tool. However, I am sure that the noble and learned Lord reads the Guardian and other like-minded newspapers as much as the next man.

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He will know that this development causes others deep concerns about the thought of that kind of power being in the hands of the state.
Lord Williams of Mostyn: That is a fair philosophical question to put. If we are referring to extremes, we should set that against the scene of the police officer kicking down the door and going in with a search warrant. Ultimately, of course the intrusion remains, but it is modified and qualified by the law. The Data Protection Act does provide protections, as does Section 28 of PACE.
I recognise that new technology is worrying, but the best thing to do here is to put the worries out front. The noble Lord used the slippery slope argument and it is there for what it is worth. At present, we are not slipping down the slope, in part because of the vigilance of noble Lords who have already spoken and in part because of the vigilant views of the press. However, I do not agree with the Guardian on every conceivable occasion. That is particularly the case at the moment because the editor is trying to take me to judicial review for not prosecuting him.
Lord Cope of Berkeley: The noble and learned Lord relies to some extent on the Data Protection Act, but my noble friend has advised me that Section 29(3) of the Act broadly exempts data being used for the prevent ion or detection of crime or the apprehension or prosecution of offenders. I am not sure that the noble and learned Lord can rely on the safeguards provided in that Act, although I am in sympathy with some of his more general points.
Lord Phillips of Sudbury: As always, I have listened with great care to the Attorney-General. However, in his reply he did not refer to the main point which I strove to emphasise; namely, that the public authorities which will be given rights under this clause will not be subject to providing the kind of training, discipline and so forth of the police. I believe that the difficult balance which needs to be struck in these matters will he ill struck if, for example, the employees of a local authority—who will not have had any training along the lines given to the police—are allowed to become embroiled in surfing databases for information in cases over which they have control.
For that reason, I am disappointed by the Minister's reply, but at this stage, I do not propose to divide the Committee.
Lord Cope of Berkeley: I wondered whether the noble Lord was about to give the Attorney-General an opportunity to deal with the point I raised as regards Clause 29(3) of the Data Protection Act.
Lord Williams of Mostyn: Perhaps I may develop these points. Personal data can be disclosed under the 1998 Act only if the disclosure can be made consistently within the data protection principles, or if one of the non-disclosure exemptions applies, to which the noble Lord referred. In the first case, the data protection rules apply in full. In the second case, rules
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are eased, but only to the extent that they are inconsistent with the disclosure in question, as covered by Section 27(3) and (4) of the 1998 Act.
Section 29 of the Act provides an exemption to the "non-disclosure provisions" where both the disclosure is for the prevention or detection of crime or the apprehension or prosecution of offenders, and the application of the provisions would be "likely to prejudice" any of those purposes. It operates as a filter on the type of information which can be disclosed and imposes a requirement for a pre-disclosure assessment of the proportionality of disclosing the information. On the advice that I have, it would not justify routine searches or data matching. The data controller would have to be satisfied in each case that, if the data is not shared, matched or disclosed, this would be likely to prejudice the prevention or detection of crime or the apprehension of offenders. That is something of an expansion. I am grateful to the noble Lord, Lord Cope, for the general proposition that I was putting in reply to the noble Lord, Lord McNally.
Lord Cope of Berkeley: I would normally say that I would carefully consider the noble and learned Lord's reply between now and Report. I am not as trained or experienced in the law as the noble and learned Lord the Attorney-General and the noble Lord, Lord Phillips, and I doubt that I shall be able to give as much consideration to this issue as I would wish in the time available. All I can say is that we shall, of course, reflect on the point.
Lord Phillips of Sudbury: Perhaps I may come back, very briefly, on the point made by the noble and learned Lord the Attorney-General. The law to which the noble and learned Lord has referred is so complicated in relation to the powers under this clause—and on this occasion, perhaps, I speak also for those on the Conservative Benches—that this Bill and others like it go beyond the realms of practical workings. They get so contorted with regulations, guidelines, protocols and cross-references to a dozen other Acts that, in practice, they are unworkable by the ordinary policeman, let alone by the ordinary local authority employee. I do not think I have got that point across sufficiently to noble Lords opposite. I believe that the Government need to pay much more regard to that aspect of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 131S to 131TC not moved.]
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 131TD:
Page 73, leave out lines 30 and 31.
The noble Lord said: I can deal quickly with Amendment No. 131TD because it raises a simple point—and one cannot often say that. We believe that it is inexplicable in common-sense terms why. if a citizen has to give his or her consent to the providing of a sample of some kind, he or she cannot at any time thereafter withdraw that consent and see the sample destroyed.
A further common-sense point is that if it is the case that once you give consent you shall not be able to withdraw it, a great many people who might otherwise have given their consent will, on advice—and I can imagine all kinds of interest groups giving this advice—never give their consent to the providing of samples. They will be told, as is obvious, that times and their circumstances may change. Although it is easy for any state to say "If you have nothing to fear you will never want to withdraw your sample", that is much too simple. I urge the Government, in terms of their own legislation, not to insist upon subsection (1D). I beg to move.
6.45 p.m
Lord Cope of Berkeley: Amendment No. 131TE seeks to build on the point made by the noble Lord, Lord Phillips. It suggests that the person giving the consent should have the provisions of the subsection drawn to his attention in writing before he gives consent. In that way, he or she will fully understand what it is that they are agreeing to.
I accept at once that this may have the effect of putting off even more people from giving their consent, but if the consent is to be absolutely permanent—that is, if the amendment of the noble Lord, Lord Phillips, is not accepted—people need a reasonable chance to understand this matter, given how complicated it is and given particularly the fact that—although the noble and learned Lord explained it away to some degree—the Data Protection Act does not give quite the kind of broad protection that the noble and learned Lord seemed to suggest.
Lord Williams of Mostyn: Amendments Nos. 131TD, 131TE and 132A are in this group. Amendments Nos. 131TD and 132A will probably not have the desired effect. They do not state that consent can be withdrawn; they simply remove the clarification that, once given, consent cannot be withdrawn.
One of the problems in practice has been that in some geographical areas individuals have been approached on more than one occasion to give a DNA sample. That is an illustration of what sometimes happens in practice. Fundamentally, consent is given voluntarily. The information on the database, once given, can be used only for the purpose of prevention and detection of crime, investigation of an offence and the conduct of a prosecution. We believe that when a volunteer whose fingerprints or samples have been taken consents in writing to the retention, that consent should not be capable of being withdrawn.
One problem is that if an attempted withdrawal is made by, for instance—this is a limited example—someone who is going to be investigated for a crime or may be matched, when does the elimination have to take place? Is it immediately on the giving of the written withdrawal? Is the written withdrawal effective immediately when it is made, when it is received or within a reasonable period of time afterwards? We think that if you, as an individual, have given your
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consent in writing to the retention of a sample for a limited purpose, you should not be able to withdraw that consent.
I accept what the noble Lord, Lord Cope, said was the spirit behind Amendment No. 131TE. However, if the amendment was accepted, there would have to be parallel amendments to new Section 64 (3AC) introduced by Clause 83 and to the parallel provisions for Northern Ireland in Clause 84.
On this point, we intend to issue guidance to the police to ensure that consent is fully informed, including the acknowledgement that once it is given it cannot be withdrawn. Home Office circular 16/95, which I mentioned earlier, will be updated to address the changes made by the Bill. In the light of those assurances—although I know that the noble Lord, Lord Phillips, will not find them perfect, but they may be a limited amelioration of his concerns—I hope that the amendments will be withdrawn.
Lord Carlisle of Bucklow: As I understand it, the noble and learned Lord the Attorney-General said that one of the reasons the power is needed is that people may have given their consent to the taking of their fingerprints during an investigation who may then find that they themselves are suspects and wish to withdraw their consent. The noble and learned Lord believes that they should not have the power to do so. Surely the answer is to say that they should not have the power to withdraw their consent until the investigation is completed. Once the investigation or any prosecution is completed, why should they not have the power then, if they wish, to withdraw their consent?
Lord Williams of Mostyn: In many circumstances the investigation will not have even begun at that stage.
Baroness Kennedy of The Shaws: I have recently returned from the United States, where I met with representatives of the FBI and discussed with them the whole issue of DNA and its use in the investigation of crime. They rather marvelled at Britain leading the way in the invasion of civil liberties. They found it extraordinary—they looked with somewhat jealous eyes—that we did not have an active civil liberties movement to resist some of the changes taking place in the Bill.
One point that was raised—which I was unable to answer but the Minister may be able to do so—was what happened to samples which were given by victims or a victim's husband, for example, when they were taken for elimination purposes rather like an intelligence screen. In those circumstances, will the samples be returned and destroyed or will they be kept too? Such samples will be obtained with the consent of the victim or members of the victim's family—from a husband, for example, in order to eliminate his DNA.
Lord Williams of Mostyn: I return to my earlier remarks. When a volunteer has provided fingerprints or samples for elimination purposes and he or she consents in writing to their retention, that consent

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should not be capable of being withdrawn. A precondition to the noble Baroness's question is that consent in writing would have to be given. I do not entirely accept the proposition that we have greater intrusive powers in this country than exist in the United States for the investigation of crime. To my certain knowledge, in many areas that is simply not correct.
Baroness Kennedy of The Shaws: In relation to DNA the Bill will take us far ahead of the United States and most other jurisdictions in the world.
Lord Williams of Mostyn: That may well be so, but that was not the noble Baroness's first proposition. In any event, it is true that much of the technology and technique of DNA is substantially advanced in this jurisdiction as compared with many continental countries. I draw some comparisons between the successful investigation of serious crime in this country and the lamentable lack of success in many continental jurisdictions.
Baroness Kennedy of The Shaws: I return to my question. Is the Minister saying that the husband of a rape victim who provides DNA for elimination purposes will not be able to request that his sample is destroyed after the investigation is closed?
Lord Williams of Mostyn: The question does not arise because the fingerprints cannot be—
Baroness Kennedy of The Shaws: The DNA can.
Lord Williams of Mostyn: Fingerprints and DNA samples are the same in principle. They are not retained unless there is consent in writing to their retention.
Baroness Kennedy of The Shaws: Having accepted that the sample would be retained in the case of the husband, will the Minister state whether it will be retained in the case of victims whose DNA is taken with their consent for investigation purposes? Will such DNA be retained and kept on the database without there being any possibility of applying for it to be removed?
Lord Williams of Mostyn: It cannot be retained unless consent in writing has been given.
Baroness Kennedy of The Shaws: Has the Minister considered the human rights implications of coercion—of circumstances in which in the investigation of crime people may feel obliged to co-operate with the police? Has he considered that the whole question of informed consent may come into play and that, therefore, there may be an abuse of the Human Rights Act?
Lord Williams of Mostyn: Yes, we have considered all the human rights implications; otherwise, my noble
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friend could not have given the certification that is required regarding the Human Rights Act which this Government introduced.
Lord Carlisle of Bucklow: Perhaps I may join in with the duo on the other side of the Chamber. Is not the problem that victims of, for example, rape are almost inevitably bound to give their consent to a DNA sample—probably without considering carefully what they are doing? Like the noble Baroness, Lady Kennedy, I cannot see why, once an investigation is over, the fact that they have given their consent, possibly at a time of emotion when they were first asked to provide the sample, should mean that they should never thereafter be entitled to withdraw their consent. In some ways that places them in a worse position than a person who has not given consent in the first place.
Lord Williams of Mostyn: I am obviously not explaining myself clearly. Anyone who volunteers a sample has a choice as to the retention of the sample, consent to which must be given in writing. If the person does not give consent in writing, the sample cannot be retained.
Lord Phillips of Sudbury: I am grateful to those who have contributed to this mini-debate. I am also grateful to the Minister. As he anticipated, I am not happy with the response. Although the amendment standing in the name of the noble Lord, Lord Cope, and others would improve matters a little, there is a principle here. The points raised by others are relevant. This kind of dangerous developing presumption that the state has a right vis-à-vis citizens when it is the citizen who has consented to the granting of a sample seems to me to be altogether wrong. I can say no more than that. At this stage of the Bill, realising that we are rushing towards some sort of doom, I shall not divide the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 131TE not moved.]
Lord McNally Lord McNally moved Amendment No. 131TF:
Page 73, line 31, at end insert—
"() Speculative searches must be appropriate and necessary for the prevention of disorder or crime and any data obtained shall not be further processed in any manner incompatible with that purpose.
() A search will only be appropriate and necessary where there is no reason to believe that the information held by the relevant law-enforcement authority is not accurate and up to date."
The noble Lord said: This was one of the amendments drafted by my noble friend Lord Lester, who alas cannot be present. The amendment was tabled with the intention of carrying out one of the recommendations of the Joint Committee on Human Rights, to which the Government gave general approval. I presume that my noble friend is hoping that the Government will give their approval to his amendment as well.
Lord Williams of Mostyn: No—and I wish that I could sit down.

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There are two considerations. I understand what prompted the noble Lords, Lord McNally and Lord Lester, to table the amendment. We want to have data which are accurate. I repeat what I said earlier. Fingerprints and DNA, subject to appropriate scientific safeguards, are powerful and objective forms of evidence. They remain unchanged for the lifetime of any individual. We can, therefore, ensure that accuracy. We cannot ensure the accuracy of other details, such as a person's address or even his or her name. We cannot discover whether or not someone has moved.
Where information is supplied that links an individual's fingerprints or samples to a crime scene, it has to be considered by the police, together with other intelligence information and evidence, which will provide an opportunity for scrutinising information. If there is doubt about a match, a further evidential sample can be taken.
I am not entirely sure what the first part of the amendment is intended to bring about, but I do not believe that the second part is workable. I do not see how any relevant law enforcement authority will be able to come to a conclusion that some parts of the relevant information are, or are not, accurate and up to date. People regularly change their jobs, their homes and their circumstances. So the proposal is not workable in that way.
The Data Protection Act deals to an extent with the concern expressed by the noble Lord, Lord McNally. There is an obligation under the 1998 Act to ensure that records are accurate. There is a well-established procedure relating to subject access which enables individuals to obtain details of personal information held on a police computer. Therefore, if there is inaccuracy, that is the opportunity to put it right.
Although in this amendment the heart is in the right place, the intelligence has not been sufficiently focused to do away with ambiguity.
Lord McNally: I shall report both the "No" and the final insult to my noble friend Lord Lester. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 82 agreed to.
7 p.m.
Clause 83 [Restriction on use and destruction of fingerprints and samples]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 131TG:
Page 74, line 10, leave out "whether"
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 132B. These amendments have been grouped with various other amendments, as set out on the groupings list. I believe that the noble Lord. Lord Lester, will be able to take some comfort from the fact that the Minister did not get it wholly right when he signed the statement attached to the Bill. Indeed, we know about that
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because we have already had to amend the Bill. However, no one is perfect. I have pointed out in the past that half the lawyers in the country are proved wrong every day in the courts. There is always someone on the losing side, as well as those on the winning side. We should always remember that when considering their advice; and not bow down to it too slavishly.
Amendment No. 131TG relates to the definition of crime as set out in subsection (1B)(c). The reference is to the restriction on the use and destruction of fingerprints and DNA samples. Basically, such samples can be used in the investigation of further criminal offences; indeed, not only further criminal offences in this country but also further criminal offences committed overseas. The particular point of my amendment is to say that that is a crime under the law of a country or territory outside the United Kingdom.
There are many laws around the world with which we would not agree. Moreover, many activities are criminal offences in one country and not in others; indeed, sometimes they are treated more seriously than is the case in the United Kingdom. If the clause is not amended it will allow any crime to be investigated in the manner proposed. My amendment seeks to ensure that a sample can be used only in the circumstances outlined if the crime being investigated in another country would be a crime if committed here. In other words, it must be a matter that we in this country agree should be against the law, and it must be against our law. That seems to me to be a protection that might well be inserted into the Bill. I am rather surprised that the Bill as drafted permits such a wide interpretation.
The other amendment tabled in my name in this group is Amendment No. 132B, which seeks to remove subsection (6) of the clause. The subsection says that if fingerprints and samples that should have been destroyed before the commencement of this Act were not so destroyed, they now do not need to be; and, indeed, can be used in the ways that we have been discussing. That seems to me to be rather extraordinary. Apart from anything else, it is somewhat retrospective. The subsection is saying that if someone gave his consent under one basis—the current basis—but, for some reason or another, the police force in question failed to destroy the samples, that can now be forgotten and such samples can continue to be used. That is retrospection of consent, as it were: it is a matter of someone giving his consent under one basis but suddenly finding that his samples are being retained on a different and wider basis, as we heard when discussing earlier amendments. I beg to move.
Lord Renton: I hope that the Government will take these two amendments most seriously. To say that a crime committed anywhere else in the world—that is what it comes to—shall be relevant to the constitution of one or more criminal offences really invokes the most extraordinary amount of uncertainty. Very odd activities are considered to be crimes in various parts

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of the world. Indeed, I believe that there is one Muslim country in which adultery is still a crime. The Government should be careful about this issue.
Lord Carlisle of Bucklow: Am I right in understanding and that we are debating with these amendments the other matters listed on the groupings list?
Lord Williams of Mostyn: Perhaps I may assist the noble Lord. In this group we find Amendments Nos. 131TG, 131TH, 132, 132B, 133, 133A and Clauses 83 and 84 stand part.
Lord Carlisle of Bucklow: I am most grateful to the noble and learned Lord. I thought that that was the position. Although I have not attached my name of any of the amendments in the group, I wish to make one very small point. Surely what we have here is a classic example of this Chamber being asked to make what is in effect a fairly major change in criminal procedure, without having had the time for adequate consideration.
At present, as regards those whose samples are taken—whether fingerprints or DNA samples—in the process of the investigation of a crime and who are then acquitted or, indeed are not proceeded against, there is a requirement that such samples should then be destroyed. As understand it, the clause would remove that requirement. It states that if the fingerprints or DNA samples have been taken from a person in the course of an investigation, those samples can be retained by the police even if the suspect was acquitted, or not proceeded against.
Can the noble and learned Lord say what, in principle, is the difference between retaining the fingerprints or DNA samples of someone from whom they have been taken as a suspect of a crime but who is ultimately not proceeded against, and taking such samples from any other member of society? It may be right to have the power to take fingerprints from all members of society and to build up such a bank held by the police. However, in this Bill alone it seems to me that we shall have: first, those who in any event had samples taken from them, who were then convicted, and which the police have power to retain; secondly, there will be those from whom such samples were taken during the course of an investigation who are then acquitted and yet the police will have the power to retain their fingerprints or DNA samples; and thirdly, there will be those whose fingerprints were taken and against whom no proceedings were instigated, but, again, the police will have the power to retain such samples.
Finally, as we discussed in the previous debate, there will be those from whom such samples were taken in the course of an investigation, whether as victims or otherwise. It will depend on whether such persons have given their consent in writing when consideration is given as to whether or not they can later be detained.
I repeat: there may be a strong argument for saying that there should be the power to fingerprint anyone in this country and retain his or her fingerprints
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indefinitely for the purpose of investigating future crime. However, in this Bill, it seems to me that we are in the process of making a major change in matters that may be considered by some to be issues of civil liberty, without proper discussion as to the situation ahead. I hope that this is one of those areas where the Government will agree that further consideration should be given to the arguments put forward before proceeding in the manner proposed.
Baroness Kennedy of The Shaws: I support the noble Lord, Lord Carlisle, in the remarks that he has just made. What concerns me and many others is that we believe we are seeing a creeping invasion by the state. We have here the creation of a national database of the male population—it will, essentially, be the male population—by stealth. If you are creating a national database and you ask everyone in the country to comply, a national debate could take place on the subject. But that is not what is happening. In order to gather as many samples as possible, the Government are now extending the reach of the database; in other words, instead of it just being confined to people who are convicted, it will include samples of people who have given a sample for the investigation of crime in any other capacity. Some will consent to that. However, the worrying point is that they will consent because they want a particular crime to be investigated or they want the best possible investigation of a crime committed against their wives. They will consent—and consent away one of their civil liberties.
I regret that there has not been enough debate on this subject. Indeed, it was not debated at all in the other place. The problem is that once a DNA database has been established, those in authority will be tempted to use it not just to eliminate people from specific inquiries but also to carry out other general searches which might, for example, throw up someone who is related to a suspect or discover an inherited psychological trait related to criminal behaviour. Those are the kind of worries that the general public have about this matter. I regret that we have not had the opportunity to debate whether people are content that this kind of data should be collected to investigate crime. I believe that most people consider that it is a case of other people's DNA. When victims realise that their DNA may also be collected, they may be greatly concerned about that.
Having expressed my general concern about what is happening by stealth, perhaps for good reasons and with good intentions but without enough public debate, I now turn to another area of concern which I raise in my Amendment No. 132 which is included in the group we are discussing. The amendment proposes that we should deal differently with fingerprints and samples of juveniles and young people under the age of 18. If the Government are intent on introducing the measure we are discussing, they should at least give some consideration to the position of young people. All the statistics show that the majority of young people who get into trouble in their adolescence or teens grow up to be law-abiding citizens. I should have thought that most of us believe in giving people an

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opportunity to make a fresh start, to accept responsibility, to be able to change and to enter adult life without any handicap. I know that the Secretary of State is mindful of the rehabilitation of offenders, particularly young offenders.
Both Canada and France have measures such as the one I propose in Amendment No. 132. I suggest that the fingerprints or samples of young people who commit a crime as juveniles under the age of 18 may be retained, but that seven years after they reach adulthood they should be able to apply for the destruction of the said fingerprints or samples if they have not got into any further trouble. The intention is clear; namely, to enable people to make a fresh start as adults. I believe that we are all familiar with the difference between young people and adults in certain respects. We can assume that adults have knowledge, foresight and a real appreciation of responsibility. Those traits are often acquired with maturity. We should adopt a different measure for those who are juveniles when their samples are taken.
I turn to a further rather serious issue. It is important that a distinction is made between the bar code, which is created from a DNA sample and which is then used for matching purposes, and a sample itself. The bar code can be entered on a computer. That bar code in itself will not tell us much more than is recorded on the computer. It usually comprises what is described as "junk" DNA; that is, DNA which does not inform you about, for example, the presence of genetic diseases. The sample, of course, is very different. If tested in a certain way, it can tell you all kinds of things about the individual from whom it has come. It could tell you about their propensity to certain kinds of illness. Perhaps in the future we shall discover all kinds of things we are not aware of now. A sample may, for example, be able to provide all manner of information, thereby very much invading the privacy of the individual concerned.
The police may well want to use the bar codes for matching purposes to eliminate individuals from investigations. Those can be kept in a database—a computer—but the databank of samples is far more complex and deserves special protection. Reasons that the Government will give for wanting to retain the samples are that a computer may go down and some bar codes may be lost, or, that there may be something questionable about a bar code that has been created from a sample and people may want to re-examine the relevant sample. They will say that there are therefore serious reasons for keeping samples. The Home Office may want to conduct research on such samples. However, the public are entitled to know what kind of research would be undertaken. In consultation undertaken by the Human Genetics Commission the public have expressed real concern about the possible cross-over between databases of information which relates to the privacy of the citizen.
My Amendment No. 133 proposes the creation of an independent body whose authorisation would be required before access to any such samples was permitted. It also proposes that in such databanks all
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information concerning identity should be coded to make it impossible to identify the people concerned should that information ever fall into the hands of people other than those one would want to have access to such information. It also proposes that,
"Any unauthorised use of DNA samples held on the databank constitutes a criminal offence".
That criminal offence should result not in some trivial penalty but in a prison sentence.
I have important reasons for tabling the amendment. The highly regarded Science and Technology Committee of this House recommended such measures after having studied databases and genetic information. The forensic science body which collects DNA samples has an overseeing as well as a forensic role. There is already some concern that there is too much fudging of its functions and that there needs to be some kind of independent review body to regulate the use of such information. Gaining the public's trust in this whole area of genetics is so important that I urge the Government not to make a rash decision but to consider with great care whether the existing provisions are satisfactory when we are on the brink of a whole new body of science. Carrying the public with government, scientists and all the bodies concerned is important. Maintaining public trust should be foremost in the Government's mind. I commend the amendments in my name.
7.15 p.m
Lord Brennan: The criminal justice system has an inherent tension between the preservation of individual civil liberty and the protection of the public from crime. In creating a balance whereby that tension is fairly distributed between those two considerations one of the most important factors is to preserve the confidence of the public in that criminal justice system.
The provision of evidence by way of fingerprint and DNA sample has the enduring virtue of certainty, as near as science can produce it in those fields. Such proof, therefore, has an inherently important value: first, in the detection of serious crime; and, secondly, where the evidence substantiates it, in the conviction of those guilty of it.
As a lawyer devoted to civil liberty, as many in this House are, I share the concerns about the use to which such information can be put. But in determining my own conclusion I must have regard to the way the public will expect such information to be obtained and used. I give some examples. First, surely the public will say about DNA evidence, "This is the very strongest of evidence. Here, if used, we should find no miscarriage of justice". Just as 50 or 100 years ago, fingerprints obtained their station of importance in criminal prosecutions, so now will DNA.
Secondly, it is not realistic to expect DNA evidence to be used in the detection of middle-range or minor crime. However, the public will expect it to be used to detect the most horrific of crimes: murder, rape, especially against children—a point I raised at Second Reading. Most of the horrific crimes of murder and rape of children about which we read with such shock

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are often crimes committed by a stranger. The perpetrator comes from a different town, often another part of the country. The victim is often, if not in a rural locality, in a greenfield area; and the ability of the police to detect such crime is very limited indeed. Hence the importance of prosecution material such as DNA samples. I cannot imagine any reasonable member of the public saying that in that level of crime DNA samples, where possessed, should not be used in order to detect the guilty person.
Thirdly, in such serious crimes, especially if committed in tight-knit communities, there is usually a massive response to requests to give DNA samples. People give them and the unspoken motive usually is, "We want to exclude our community from any involvement in the crime". I do not think that this Act will result in a difference of attitude among ordinary citizens who are asked to volunteer to give such samples.
Lastly, the public will say, "If you have samples, if they have been given by consent, how can you possibly justify their destruction if, many years after the event, they can serve to prove somebody guilty of a heinous murder against a child?" I ask that question rhetorically. I would look forward to some very persuasive advocacy which would come to a different conclusion from what the public would expect.
From the standpoint of civil libertarians, I respect the concerns expressed by the speakers so far, and perhaps yet to come. However, I started by identifying the tension. There must come a time in this House when, faced with laws like this which are designed to protect the public, some of us have to swallow our beliefs in the purity of civil liberty and look to the protection of the public, albeit in time to come those important concerns which my noble friend Lady Kennedy has Set out may well call for a complete review of the manner in which we store and use this evidence in a technical database way.
I support this introduction of DNA sampling being kept by consent and used ever after. I cannot see the public saying to this House that on this occasion civil liberties will prevail against the protection of our citizens.
Lord Renton: As we are debating whether Clause 83 shall stand part and the amendments to it, I feel obliged to draw attention to subsection (4) which is very confusing, slightly contradictory and should be reconsidered by the Government. In particular, perhaps I may draw attention to subsection (3AB) which states:
"Subject to subsection (3AC) below, where a person is entitled under subsection (3) above to the destruction of any fingerprint or sample taken from him … neither the fingerprint nor the sample, nor any information derived from the sample, shall he used … in evidence against the person",
and so on,
"or … for the purposes of the investigation of any offence".
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That is fair enough. But the top two lines of page 75 of the Bill, which have already been the subject of an amendment wisely proposed by the noble Lord, Lord McNally, state:
"a consent given for the purpose of this subsection shall not be capable of being withdrawn".
It is rather odd that if a person has given a fingerprint he can ask for it to be withdrawn; but if he has given his consent to have a fingerprint or a sample taken he cannot ask for it to be withdrawn. There is a contradiction; the Government should attend to it.
7.30 p.m
Lord Phillips of Sudbury: I support the argument that this clause should not stand part of the Bill. The clause seeks to turn on its head Section 54 of the Police and Criminal Evidence Act 1984. It would treat those acquitted of a crime and those never prosecuted for a crime in the same way as if they were convicted criminals. Merely to state that proposition invites a great deal of inquiry as to what could justify such an extraordinary state of affairs. To create this new category, as it would be, is wholly without precedent, wholly adventitious and truly unprincipled. In this country, we do not have a Scottish system with the intermediate category in the criminal courts of cases "not proven". If we had such a category, some of my anxieties and of others who have spoken today, would be resolved. For the purposes of samples of DNA and fingerprints, it would be straightforward to have those "not proven" cases treated as though there had been a conviction.
No one mentioned today that this change in the law does not come after long and careful consideration, least of all after public debate, but against a backdrop of chaos in the national DNA database. Last year, the Inspectorate of Constabulary did an audit of the national DNA database and produced a report in July which found that over 50,000 samples are kept on that database illegally so that the existing 1984 law is honoured in the breach. On behalf of these Benches, perhaps I may say that it seems an extraordinary response to the fact that this crucially sensitive state instrument—the collection of citizen information—should have been so cavalierly misused. Yet the Government do not respond by saying, "This is dreadful. We'll put this right and it won't happen again"; they seek to make a norm of the present illegality.
In December last year, the House of Lords decided that the illegal use of DNA information for the purposes of apprehending and subsequently seeking to convict a person should not automatically strike down the prosecution. I refer to the case of Regina v B, the Attorney-General's third reference in 1999, when Lord Justice Steyn made a trenchant judgment to the effect that that would not automatically render the use of the DNA information inadmissible, but it would be left to the trial judge to decide in all the circumstances of the case.
Does it all matter? Are noble Lords across the House getting excited about a principle that is of little account? I think not. Ask the police. The Government

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asked them earlier this year to give voluntary samples to go on the national DNA database. I think that I am right in saying that one third of them are still holding out against that and that a dozen policemen in Gloucestershire are currently being disciplined for refusing to give samples "voluntarily" to the national database. Why would the police of all people be reluctant to give samples? The answer is only too simple: the database is in a chaotic mess. The systems between the police, the courts and the database are in chaos and they are unreliable.
I am afraid that that is not the only reason that those policemen are refusing to submit voluntarily. In 1998, a Mr Easton was prosecuted for burglary exclusively on the basis of DNA matching. Apart from the fact that Mr Easton was suffering severe Parkinson's disease and was incapable of getting out of his house, let alone burgling anybody else's, it turned out that this was a cock-up and that the so-called perfect system was imperfect. The Crown Prosecution Service withdrew the prosecution.
Unfortunately, as we know, systems for obtaining details of convictions of citizens are corruptible. It is almost certain that the DNA database is being used improperly. It is an open secret that one can obtain details of someone's criminal convictions unlawfully. There are people willing to co-operate in that.
How will the issue seem to the ordinary citizen? My noble friend Lord McNally and others have already referred to a sense that the state is getting too big for its boots—too powerful, too intrusive and too all-pervading. The instruments of state intervention and investigation are getting too strong and the citizen too weak. The system is so complicated that a citizen wronged by it will rarely if ever be able to find a way through to the truth.
Hundreds of thousands of young people in this country are already on the database because they have been cautioned for soft drug offences. I am concerned about them and many like them. They will always be on the database. We are talking about other categories of people, particularly young people, who have been acquitted—I stress acquitted—before a court of law of whatever the offence may be, drug or otherwise, but will still be permanently on what many of them will regard as a "Big Brother" database. They cannot even take advantage of the Rehabilitation of Offenders Act. Their convictions will be struck from the record, but never their fingerprints or their DNA samples. It is easy for us in this House to think that they are only the sort of people whom we want to put in prison anyway, but that is not true. We underestimate the psychology of the issue and what a tenuous thread exists between so many citizens, particularly the less fortunate ones, and the instruments of the state, particularly the forces of law and order, the police and the courts.
I do not need to tell the House that a society that does not ultimately rest for its lawfulness on the voluntary, willing adhesion of the vast majority of citizens to its policing and court system is a failing society and not one of which any of us here wants to be part. That is why I question the wisdom of this
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reversal of the status quo and why I feel strongly that the fairness and reasonableness that underpin the society that we cherish will not be well served by this provision.
The noble Lord, Lord Brennan, made some thoughtful remarks. He was right that this is a case of all in or convicts only in. There is no intermediate category. Let us have a national debate. Let us ask young people what they think. Let us find out whether my fears and other people's fears are well founded. Let us do what the Canadian Government did—incidentally, they decided not to have this arrangement. The United States Government have set up a commission on the future of the use of DNA. Let us do what the French Government did. Let us not proceed with this measure tonight. As many have said, it is a fundamental issue, going beyond reason and rationality to an aspect of feeling and attitude that is no less important than the purely rational.
On all those grounds, I urge the Government to think again. After a debate, we may come to a conclusion in favour of what they are pressing on us tonight, but this is a classic example of a reform that needs much more thought and time and much wider involvement than we have yet been able to give it.
Lord Williams of Mostyn: No one has yet mentioned the fact that preserved DNA samples are capable of producing the acquittal of those wrongly accused of serious crime. Is that not an important aspect of what a criminal justice system ought to provide for the confidence of the public?
Lord Phillips of Sudbury: The answer to that is simple. Any innocent person accused of a crime will readily give their DNA sample. That will do the trick.
Baroness Kennedy of The Shaws: It goes without saying that we want people to be able to use DNA to prove that they were not responsible for something. Such DNA as comes from the scene of a crime should be preserved, but that is not what we are talking about. We are talking about how samples should be kept, from whom they should be taken and whether there should be greater public debate about taking them from people who have not been convicted of crimes.
Lord Williams of Mostyn: I managed one sentence, which is almost a record, even in this House.
The issue is not as simple or polarised as some people claim or pretend. We are talking about a raft of different propositions. The matter relates to the inquisition into crime, the investigation of crime, the conviction of the truly guilty, and also the acquittal of those who are innocent. DNA is a very important tool in the same way as fingerprints have been over the years.
Let us consider one or two propositions that have been put forward. The noble Lord, Lord Renton, raised a question about Clause 83 in his helpful contribution on Clause 83 stand part. He wondered why fingerprints or samples should not be destroyed if

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a person had consented to the fingerprints or samples being given. However, I made this point earlier. New subsection (3AC) on page 74 of the Bill specifically refers not to a person from whom a fingerprint or sample has been taken but sets out an essential further qualification:
"a person from whom a fingerprint or sample has been taken [who] consents in writing to its retention".
That is utterly different from a situation in which a person simply consents to the sample being taken. He or she must consent in writing to the retention of the sample.
One or two wide questions are raised in relation to storage. The noble Lord, Lord Phillips, spoke of a corruptible system. My noble friends Lord Brennan and Lady Kennedy asked how we can be sure that the storage and data bank is safe enough to give us confidence—I believe that that is a fair paraphrase. I believe that those are legitimate questions. I am prepared in the longer term—on behalf of the Home Office—to give consideration to the idea of an independent body holding the DNA samples.
Let us turn to the specific amendments. I have not found any sufficiently persuasive reason to impeach the argument put forward by my noble friend Lord Brennan, let alone to test it to destruction. I shall come to one or two specific illustrations when I deal with particular concerns that have been raised.
First, Amendments Nos. 131TG and 131TH attempt to restrict international co-operation, by which I mean our ability to share information with other law enforcement parties—I believe that that would also apply the other way round—to criminal offences which correspond to offences in the United Kingdom. Offences may well exist under foreign statutes that generally conform to offences in the United. Kingdom but where the terminology of the offence is not the same. I do not believe that it would be reasonably proportionate to expect the police in every case of an alleged offence committed abroad to establish whether the same conduct, if committed in the United Kingdom, would have corresponded to an offence here. Obviously the framing of offences and defences varies between jurisdictions.
We believe that these two amendments would bring about an unnecessary restriction on the exchange of fingerprints and samples. In the full evidence given by the Home Office, we explained to the Joint Committee on Human Rights that procedures were in place to deal with the disclosure of information, and we gave an undertaking to monitor the situation.
I now turn to Amendments Nos. 132 and 133, standing in the name of my noble friend Lady Kennedy of The Shaws. If approved, Amendment No. 132 would mean that the individual's fingerprints and DNA profile would be removed from the national database if the person in question was below the age of majority when the offence was committed. As I understand it, that would mean that a 17 year-old young man who had committed several murders would be the beneficiary of the removal of his DNA and fingerprint samples from the database. It would
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mean their removal, even if he were a seriously dangerous molester of young children—I take the example of my noble friend Lord Brennan—and that he had murdered several.
There is an argument for that on the basis that, as my noble friend put it very eloquently, all humans, particularly when young, are capable of change, improvement and redemption. That argument does exist, but I am sorry that it does not persuade me any more than it persuaded my noble friend Lord Brennan; nor do I believe, if we were to take the public point of view on an informed basis, that it would satisfy many members of the public. I would not recommend any of my colleagues to assent to that amendment.
7.45 p.m.
Baroness Kennedy of The Shaws: I hesitate to interrupt because I know that my noble and learned friend is anxious to proceed. However, perhaps I may suggest that, through this amendment, I sought to place before the Committee a proposition in relation to young people. If a person, such as has been described by my noble and learned friend, had committed a series of gross crimes, one could easily introduce into the provision an exception whereby, in very serious cases, objection could be made to an application for destruction. Therefore, there would always be a way in which to deal with the very rare cases of juveniles committing atrocious crimes.
As the Minister knows, the number of young people who commit such crimes are exceptionally rare. Therefore, we are talking about the majority of quite ordinary crimes and the circumstances in which young people may give their DNA and be acquitted or may do so voluntarily by signing a consent form. However, such action may be inappropriate, given the likelihood that they will never offend again.
I want to support a point raised by the noble Lord, Lord Phillips. He said that this matter concerns the relationship between the citizen and the state and the erosion of that relationship. It is a matter of particular concern to many people when it deals with young people.
Lord Williams of Mostyn: I am dealing with the amendment. I remind the Committee that the amendment states:
"Where a person from whom fingerprints or samples are taken is under the age of 18, the fingerprints or samples may he retained"—
therefore, I take there to be no principled objection to the retention of samples—
"but after 7 years from the time when the person reaches his or her majority, and if no further offence has been committed, the person may apply for the destruction of the … fingerprints or samples".
Plainly, this is a sighting shot because the latter part of the amendment lacks all particularity. However, if the sample may be retained, and if it may be retained until the person is seven years post-18 years of age, I hat is not an argument of principle; it is an argument that says, "Let us attend to it in practice".

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Personally, I would not be willing to vote for such an amendment, even if it were properly couched in terms of who the application should be made to, on what basis, who could object, and so forth. However, I repeat that, if it is right to keep the samples for seven years, the principle for retention in certain circumstances is conceded.
The maintenance of the data bank is dealt with in Amendment No. 133—
Lord Cope of Berkeley: Before the noble and learned Lord proceeds, I do not believe that he can rest wholly—rather, that he can rest anything—on the argument of incomplete drafting of the amendment. Normally in a Committee stage, the amendment would be taken away and no doubt would be polished and improved for Report stage. That is difficult to do in the circumstances in which we find ourselves. However, the provision can be left out of this Bill. It can be given further consideration and brought back on another occasion when the remains of the Bill come before Parliament in the future.
Lord Williams of Mostyn: I believe that the noble Lord completely misunderstood what I said. I made it plain that I was not making a criticism of the drafting; I used those words because this is plainly a sighting shot. I was not criticising the amendment on that basis. My objection and observation is that if, in principle, it is acceptable to retain samples for seven years, there cannot be a wholly intact principle against the retention in any circumstance.
Personally, I should find it very difficult to say that someone of the age of 17 years and 11 months who had committed gross crimes of the type referred to by my noble friend Lord Brennan should be the beneficiary of the opportunity for destruction of those samples, which are kept as a public protection, whereas a young woman of 18 years and one day would not be. I do not find that logically sustainable.
Lord Phillips of Sudbury: Would not the argument of the noble and learned Lord be as effective when used to deprive the selfsame triple murderer of the normal protections, including the way in which he or she is handled by the police and in relation to evidence concerning his or her guilt?
Lord Williams of Mostyn: Not at all; the two circumstances have no comparability. Young people under the age of 18 have particular protections under PACE because of their personal vulnerability. Sample DNA depends on no personal characteristic other than the objective, scientific one that was referred to by my noble friend. If my fingerprint is taken, there may be safeguards about the taking of it, but the fact that I am 17, 18, 65 or 85 does not relate to the scientific, objective value—the probity value—of the fingerprint. That again returns me to the comments of my noble friend Lord Brennan. We should not forget that, provided that the safeguards are in place—I briefly dealt with that in connection with the database and the
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databank—that approach, curiously, involves much more powerful evidence than the certainty of an identification witness in so many cases or the possible scientific accuracy of a handwriting expert. It provides much better quality evidence. When we cast our criminal justice procedures, we should recognise that.
Noble Lords who have discussed Amendment No. 133 are entitled to the concerns that they have raised. If I may, I shall not go into the details of the present system because I indicated that we are prepared to consider the idea of an independent holding body.
There are further amendments in the group. Amendment No. 133A is a compendious attack on Clauses 83 and 84. We must agree to differ in this regard. I accept that civil liberties questions are raised but an intrusion into my personality or personal life is not necessarily an unacceptable intrusion into my civil liberties. In relation to the European convention, not all the rights are perfect, distinct and discrete. It is an intrusion into my personal liberty to be photographed when speeding in a speed zone of 30 miles per hour. It is in some ways an intrusion into my personal liberty when a CCTV record of my walking along a high street is kept for some time, often by private individuals. Some people say that that involves a balance of judgment that we must accept.
It is true that many young people are deeply suspicious of authority and that people who have been cautioned may deeply resent the fact that their fingerprints are retained. At the other end of the spectrum are the two cases that were mentioned by the noble Lord, Lord Phillips; namely, Regina v Weir and Regina vB. One of those cases was an Attorney-General's reference to the House of Lords. In a judgment that is worth looking at and reflecting on, the noble and learned Lord, Lord Steyn, came to certain conclusions about what admissibility of evidence should be. I do not want to over-dramatise the situation but I shall give the stark, implacable facts of the two cases. Many would take the view that if the evidence had been admitted in one of the cases, a rapist would have been convicted, and that if the evidence had been admitted in the other case, the cruel, mindless murderer of an elderly person—he was killed in his own home—would have been convicted of murder.
I am happy to engage in a public debate on that matter. I have a suspicion, which might be deeply unworthy, about which side the public view would fall in those circumstances. Many well informed, decent, scrupulous, civil libertarians may say, "The law is sometimes an ass. Can you do nothing to make it more consistent with what we think a civil society should provide in terms of the prevention, detection and prosecution of crime?"
Neither the noble Lord, Lord Phillips, nor those who are ranged behind his battlements, suggested that there were unworthy motives among those who took a different view and I do not for one moment make such a suggestion about those who disagree with me. There are different views to be had but there is a limit to how much discussion there can be. I believe—I am not

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alone in this—that the background circumstances that allowed the successful submissions to be made in relation to the cases of B and Weir were not consonant with what a civilised society should afford by way of protection or redress when objective, scientific evidence is available. There are of course cases in which fingerprints are challenged; we all know of them. There are notoriously well-known cases in the United States in which DNA has been challenged. I have constantly put my qualification on this class of evidence throughout this brief debate on where there are safeguards, both scientific and forensic.
Our proposals by way of remedy to a serious gap in the law are in Clause 83. Clause 84 is its sister—or brother—clause for Northern Ireland. I recognise the power and force of contrary arguments and I have listened with great care on this occasion and others. However, there comes a time when we simply have to disagree. If we reach a decision today or tomorrow, that point of disagreement will have been finalised.
Lord Lucas: The noble and learned Lord lays much emphasis on proposed new subsection (3AC) in Clause 84, in which the person who is giving the sample,
"consents in writing to its retention".
Under what circumstances would anyone be well advised to do that? I cannot imagine any circumstances in which a person would benefit from doing so. Giving such consent under such circumstances may be done by failing to inform a person properly and, to some extent, by trickery and subterfuge.
Being on the database puts one in a position that is akin to mislaying a hair sample in the days of witchcraft. One puts oneself enormously in everyone else's power. If a person is known to be on the DNA database, all that one needs to do is to pick up one of his hairs and place it at the scene of a crime. That would be evidence that he was there and it would be extremely difficult for him to disprove that evidence.
The arrangement will put one in an enormously weak position in relation to the state generally, if the state has some reason for convicting one. Any reasonably organised criminal could use the arrangement to secure an incredible amount of power over one. To consent to put oneself on the database would be an act of enormous folly and no adult should be advised to do it. How a juvenile could give such consent I am unsure. Would their parents be asked to sign away their child's future security on his or her behalf? Again, it is not clear.
If one commits a crime and one is on the database, one has let oneself in for it. One can voluntarily give a sample to clear oneself as part of an investigation; one may tick the box, fail to tick the box or do whatever it is that amounts to giving written consent for the retention of one's sample, but one would be extraordinarily ill advised to do so.
I cannot believe that it is proper for the Government to arrange the forms or conditions under which consent is sought so that people will be lulled into
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giving their consent. The Government should treat the matter with great seriousness. Yes, this will be a wonderful database to have and, yes, we should do everything that we can to ensure that those who commit crimes at all regularly—most crimes are committed by criminals who have committed more than one crime—are on the database. However, the rest of us should not be put in the power of the state or in that of ill intentioned individuals simply because of one moment of community-mindedness. When one is asked by a police officer, "Will you allow us to keep the sample?", one would naturally consent because one could not believe that the police would ask such a thing unless it was in one's interest to consent.
8 p.m
Lord Williams of Mostyn: I can test the proposition of the noble Lord, Lord Lucas. If I wish falsely to implicate the noble Lord in a crime, his DNA details do not have to be on a database. I can take his hair and place it at the scene. The police may take his DNA sample and he will be liable anyway. So his witchcraft argument is not persuasive.
The noble Lord asked who would put themselves in that position. I would. If I lived in a small country village where, over a period of years, children had been attacked and murdered, I would not have the slightest hesitation in giving a sample, nor in advising my children to do so, subject to safeguards. Again, that demonstrates the disadvantage of rhetorical questions.
Baroness Kennedy of The Shaws: Will all Ministers of the Government put themselves on this database?
Lord Williams of Mostyn: I have not the slightest idea and nor will I make the inquiry. I do not want to be accused of being a "big browser" or a participant in witchcraft. The noble Lord, Lord Lucas, asked the question and he was entitled to my answer, which I gave honestly and conscientiously as he asked the question.
Lord Lucas: If someone places a hunk of my hair at the scene of a murder, the police will have no idea whose hair it is. They can trace the DNA but will have no idea it is mine. They would need some other reason to place me at the scene to come and ask me for a DNA sample.
Lord Williams of Mostyn: We are obviously in "Cluedo" now. But if I did put a hunk—or rather, a smaller sample—of hair from the noble Lord, Lord Lucas, at the scene of a crime, I may well make use of either an anonymous telephone call or an anonymous letter.
Lord Lucas: Then at least there would be a prompting and something which could be brought into question in court as to why the anonymous call had been made and whether it was all a stitch-up. If something of mine is just found at the scene, prima facie that is something which I have to explain.
Lord Thomas of Gresford: I have a little experience of cases involving DNA. The circumstance which most

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people postulate when talking about DNA is that a crime has been committed and a sample of DNA has been found at the scene. That is then compared with the samples of convicted people on the database which has been built up over a period of time.
But the reverse can be the case, as happened in a case I know well. A person was arrested on a minor charge and asked to provide a sample of blood. That was tested for DNA. That sample was then run against a database of samples taken from previous crimes. The person was subsequently convicted of rape from 15 years earlier when he was living in a completely different part of the country. There was no other evidence to connect him with the crime. But the certainty of which the noble Lord, Lord Brennan, spoke was applied by the prosecution and ultimately by the jury to convict him solely on that evidence.
Certainty is that which is postulated in relation to DNA evidence. But certainty is never claimed by the scientists who give evidence in criminal cases. They say that by operating a mathematical formula, by multiplying various parts of a random piece of DNA by a factor of 12, the chances of a specific piece of DNA coming from another person in the population chosen at random may be as much as 1 billion to one. Those are the sort of odds that are frequently quoted. However, scientists will admit that the chances of that piece of DNA coming from a close relative of the person who is a suspect is as low as two to one. So one can go quickly, because of the mathematics, from two to one to 1 billion to one, and one then arrives at the certainty about which the noble Lord, Lord Brennan, spoke.
I am talking about experience and practicality. There is no certainty. But people are now being convicted in this country on the basis of scientific findings. Those findings may be tainted by the manner in which the sample was collected or the manner in which it was stored. It depends on the ability or the integrity of the scientist who carries out the tests—we all know of cases in the past where the integrity of scientists has been questioned. But at the end of the day there cannot be certainty.
The consequences of the proposals are that there will exist in our society people who have been convicted of crime, perhaps at a young age, whose DNA and fingerprints will remain on the database for ever. There will be those who have been acquitted and those who are innocent whose DNA will remain on the database for ever; and so for victims and for those who take part in elimination tests. The rest of the population are nowhere.
In the case of which I spoke earlier when a person's DNA was set against the database, the computer threw up a 15 year-old rape. The fact was that four people in the adult population of this country could have committed that crime. The defence had no idea who the other three people could be because their samples had never been taken. So the one person whose sample was taken for something totally different, in a different
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town at a different time, finds himself serving a lengthy sentence for rape. That is the danger of the provisions before us.
There has been no public debate on this issue. There has been no detailed discussion so that the people of this country are aware of the limitations—indeed, the noble Lord, Lord Brennan, is not aware of them—of DNA and the fact that it can go wrong. The people of this country are not aware of the various gradations from guilt, to innocence, to victim, of the people whose DNA will appear on the database.
I agree entirely with what the noble Lord, Lord Lucas, said: the existence of the powers in this Bill place a weapon in the hands of the state that is hugely powerful. If the people of this country believe that certainty arises out of DNA, the possibility of ridding oneself of political opponents, for example, through the misuse of DNA in the manner referred to by the noble Lord really does exist. If that is thought to be far-fetched, let us remember that at this very moment in time there is a leader of an opposition party in a Commonwealth country who today is facing charges brought against him by the regime. Anybody who thinks this is something we can shrug off and say, "It will never happen here", is entirely mistaken. Why, in the past, have fingerprints and samples been destroyed? Because it was realised that if we place this power in the hands of the state, it may well be misused.
It is my view that the public must be involved in this debate. The public must appreciate the issues which arise. The rushing through of these provisions at the end of a Parliament, as is now proposed by this Government, must be resisted from all sides of the Committee.
Lord Cope of Berkeley: This debate was founded on a relatively modest amendment to leave out the word "whether". However, it has given rise to a long debate on the principles that lie behind the whole of the business involving DNA. It has tremendously opened up that argument.
I was glad to hear that the rapist mentioned by the noble Lord, Lord Thomas of Gresford, was convicted at last, after 15 years, even if it took some time to catch up with him, assuming that he did it. I cannot comment on the details of that, but he referred to the possibility of a false certainty in such cases.
I do not believe that the noble Lord, Lord Brennan, spoke so much about certainty as about high-quality evidence. There is no doubt in my mind that DNA and fingerprints are high-quality evidence. That does not mean to say that they can be treated as certainties.
They are also tremendous investigatory tools when used as set out in these clauses. The fact that 15 years later someone can be picked up in the circumstances described by the noble Lord demonstrates the power of using them as investigatory tools. In the case of the rapist, he could have been one of the other three and not have been in a position to have committed the crime. He may have been in another part of the country or otherwise engaged and so the case may not have been pursued. Those circumstances do not

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invalidate the fact that DNA is a strong investigatory tool in pointing to one of the four people who may have committed the particular crime, which is of great advantage to the police.
I do not mean to make, although it is difficult not to make, a party political point. At the moment we are not collectively winning the war against crime. All sorts of crimes continue to worry us. DNA evidence provides a valuable investigatory tool and potentially provides quality evidence in court, although it does not provide certainty.
We have to balance that against the principle of policing by consent, as has been raised in the debate. In this country we know that one cannot police except by consent. That is the way in which it works and should work. Anything that undermines that consent is a danger to us and to our whole system and way of life. That is why I wish there had been more discussion before this matter was put on the statute book because I believe that it puts at risk policing by consent.
We do not wish to deny the police a valuable investigatory tool or the courts a valuable tool in assessing guilt or innocence of individuals. However, I seek leave to withdraw Amendment No. 131TG.
Amendment, by leave, withdrawn.
[Amendments Nos. 131TH to 132B not moved.]
8.15 p.m.
On Question, Whether Clause 83 shall stand part of the Bill?
Lord McNally: In relation to Clause 83 stand part—my comments refer also to Clause 84—it is not the intention of those on these Benches to divide the House tonight. The Attorney-General gave a detailed response. I am one of his fans. His method of delivery is such that it is usually about 4 a.m. before one realises that he has either insulted or threatened you. However, my brain cells have moved a little faster than usual. About two hours ago he said that he did not want to bring the whiff of the hustings into the debate and then proceeded to do so.
On these Benches we are under no illusions that it will be easy to present the concerns expressed from all parts of the House as a denial of powers to prosecute rapists and murderers. Both the Attorney-General and the noble Lord, Lord Brennan, played that card very forcefully in their remarks.
If our civil liberties are to be dealt with by saying, "Unless you give us these powers, the people will denounce you", one may as well leave our civil liberties to the editor of the Sun or to those phone-in-and-give-your-views polls that they run so often. This House and this Parliament have other more important duties than simply to listen to the most emotive arguments that can be deployed.
Therefore, I say to the Attorney-General, as I said to the Home Secretary when he delivered a similar threat in the Moses Room, that, if our genuine concerns are to be met, then we should have a much expanded debate in the country—not just one
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truncated day's debate—before we move ahead. At times I have sat in this House and felt honoured to hear the quality of the debate, but tonight's debate should take place in the country. Tomorrow we shall divide the House and after the Division we shall consider whether these clauses should go forward.
I hope that the Attorney-General will also pause to think because it is not just the Hampstead Liberals who have been asking him to think, but also some of the most distinguished lawyers on the Conservative Benches and the noble Baroness, Lady Kennedy. The Government have given her special responsibilities to look at DNA. There have been some serious concerns and I believe that there is a case for a pause for thought. But for the fluke of the outbreak of foot and mouth delaying an election, this Bill would not have seen the light of day anyway, so it cannot be a matter of great urgency. It should be possible to have a national debate and a proper programme of legislation. This evening we have not been convinced by the Attorney-General's eloquence or by his threats.
Lord Williams of Mostyn: I have said at least three or four times that I recognise perfectly well that other people may have a different view that is conscientiously held. I have made no threats of any sort and I did my best to answer all the points. Of course, there is no threat and people must come to their conscientious conclusion. Not all of the people behind me will do so, but I have said several times, not least in reply to the noble Lord, Lord Phillips of Sudbury, that I recognise that people have different views. This is not a party political matter, but time and time again the question of what Mr and Mrs Joe Public think has been raised. I am entitled to offer my view on what they think, even though I do not live in Hampstead.
Lord Phillips of Sudbury: The Attorney-General has been fair, but there is a difference between what Joe Public, as he calls him, may think in answer to a question in the high street and what Joe Public may think on an issue after there has been a genuine thoughtful debate. Those are different issues. I have more faith in Joe Public than I have in some Members of the Committee.
Clause 83 agreed to.
Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws had given notice of her intention to move Amendment No. 133:
After Clause 83, insert the following new clause—
"MAINTENANCE OF DNA DATABANK
(1) All DNA samples shall be kept on a databank with the identity of the persons from whom the samples were taken codified.
(2) The databank shall he maintained and supervised by an independent body whose authorisation shall be required before access to any such samples takes place.
(3) Any unauthorised use of DNA samples held on the databank constitutes a criminal offence, carrying a prison sentence of up to 5 years."
The noble Baroness said: I want to express my gratitude to the Minister for indicating that he will look closely at the idea of an independent body

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holding the database. That will give great confidence to many people who have concerns. In those circumstances, I shall not move my amendment.
[Amendment No. 133 not moved.]
Clause 84 [Provision for Northern Ireland corresponding to s. 83]:
[Amendment No. 133A not moved.]
Clause 84 agreed to.
Lord Davies of Oldham: I beg to move that the House do now resume. In doing so, I suggest that the Committee stage should begin again not before 9.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Sex Offenders (Notice Requirements) (Foreign Travel) Regulations 2001
8.20 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft regulations laid before the House on 23rd April be approved [14th Report from the Joint Committee.]
The noble Lord said: My Lords, these are important regulations for debate today. The regulations extend the requirements in Part I of the Sex Offenders Act 1997 on those convicted of a specified range of sexual offences. Currently, they are required to register their name and address and any subsequent changes to either of those with the police. They must also notify the police if they spend 14 days or more at another address within the UK.
The Criminal Justice and Court Services Act 2000 amended the Sex Offenders Act to provide for such offenders to be subject to additional requirements to give notices when they propose to leave and return to the UK. These regulations specify those additional requirements.
The fact that the Act does not require registered offenders to notify the police that they will be leaving the UK has limited the ability of the police to know their whereabouts and consequently their ability to monitor them. Some offenders, when found to have been missing from their registered address, have been able to claim that they were abroad at the time and thus were not in breach of the registration requirements of the Act. The second issue is that the police have not known that the offender, who might pose a risk overseas, has been intending to leave the UK. These regulations before the House will address both those issues.
Part I of the Sex Offenders Act is essentially about relevant offenders notifying the police of certain information. It was not intended and could not properly be used to prevent the offender from travelling. Should there be a justifiable need to do this, other measures are available such as conditions in licences to which offenders are subject if they are
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sentenced to more than one year's imprisonment. In proposing these regulations, we have had to strike a balance between recognising their potential usefulness to the police for operational purposes and recognising that the Sex Offenders Act is an important measure for protecting the public, but it is not the only one. It is part of a set of measures which link together.
By way of finishing my introductory remarks, perhaps I may say that those offenders registered under the Sex Offenders Act have been convicted of a range of offences. They will include those convicted of the most serious sexual assaults against small children but also those who have committed offences of lesser gravity against adults. However, saying that in no way seeks to understate the distress caused to any victim. In some of these cases, the victims will have been strangers but in the majority they are likely to have been known to the offender. Not all those registered will pose a risk to individuals abroad. Where it is believed that they do, however, these regulations will provide the police with more information about their planned trip abroad.
I should like now to turn to the content of the regulations. There were 14,813 offenders registered in England and Wales on 1st March 2001. The regulations apply to every registered sex offender in England, Wales and Northern Ireland who intends to leave the UK for eight days or more. In order to maintain a common registration regime north and south of the Border, the Scottish Executive intend that parallel provisions will be introduced in Scotland.
The period of eight days has been chosen to reflect both the large numbers of registered offenders and thus the potentially high volume of notifications and to ensure that there is time for the police to take any necessary action resulting from the notification.
The regulations require that every offender intending to leave the UK for eight days or longer must give notice to the police at least 24 hours before he leaves the UK. The Act itself provides that the notice must disclose the date of departure from the UK, the country to which he will travel, or if there is more than one, the first country and the point of arrival in that country. The deadline for making the notification of 24 hours before departure has been specified to allow the police the opportunity to judge whether any further action is necessary, such as notifying the authorities overseas.
The regulations provide for the offender to be required to give additional information about his trip, if he has that at least 48 hours before he goes abroad. This further information comprises the intended point of arrival in each country to which he intends to travel; any carriers with which he intends to travel from one country to another; details of his accommodation arrangements for his first night outside the UK; the date of his intended return to the UK; and the intended point of arrival on return.
The regulations further require the offender to make a fresh notification if the information he has previously notified becomes inaccurate or incomplete at any point up to 48 hours prior to departure.
Many offenders are likely to return to the UK on the date and at the point of arrival previously notified. Where this is the case, they need do nothing further about advising the police of their return. If, however, an offender's return arrangements have changed from those previously notified, or if he did not have any fixed return plans at the time he left the country, he must notify the police of the date of his return and the point of entry within eight days of returning to this country.
The regulations specify that offenders must attend a police station to give the required notices. There are a number of reasons for this. First, offenders may not remember from one trip to the next precisely what information is required of them and the only way of ensuring that they provide what is required is by attendance in person. Secondly, it is important that the required information is conveyed within the timescales specified and requiring attendance in person is the best way of achieving this. A notification made by post may not arrive in time or there may be disputes about whether or not faxes have been sent.
We have also been conducting a wider review of the Sex Offenders Act in order to examine whether there are other aspects of it which could also be strengthened. We will be announcing the start of a period of public consultation on these proposals in due course.
These regulations cover a complex area in which there are no easy solutions. They do not stand alone but add a new element to an existing range of measures designed to tackle the dangers posed by sex offenders and I commend them to the House.
Moved. That the draft regulations laid before the House on 23rd April be approved.—(Lord Davies of Oldham.)
Lord Goodhart: My Lords, according to an undertaking given to your Lordships' House by the noble and learned Lord the Attorney-General, any Minister who is moving regulations which require the affirmative procedure undertakes to make a statement that those regulations comply with the obligations under the Human Rights Act. I have heard no such statement on this occasion.
These regulations are quite intrusive. They do not require simply a statement of the country which is to be visited and the point of arrival in that country, but also the identity of the carriers and, somewhat surprisingly, details of the accommodation that has been arranged for the person's first night abroad. As the Minister has made clear, one of the main purposes of the information is to enable it to be provided to the overseas authorities, in particular the immigration authorities and police.
I accept that the exchange of police intelligence is highly important for the prevention and detection of crime, but that exchange must be subject to limitations under the Human Rights Act; in particular, we must be satisfied that the privacy of a person on the register is invaded only so far as is necessary in a democratic society. In the United Kingdom one consequence of
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that is that the register is not open to members of the public and the use that can be made of it is strictly limited, and very properly so.
The European Union Select Committee, of which I am a member, has made a close analysis of the various conventions between the members of the EU which regulate the powers of Europol. Those conventions prevent the exchange of information with countries outside the EU where that information may he used in breach of human rights. I ask the Minister how we are to be satisfied that this information is to be exchanged only in ways which recognise the human rights of people on the register. Those on the register have human rights along with those who are not on the register. There is no limitation expressed or, as far as I can see, implied within the terms of the regulations. Would we be prepared, for example, to exchange information with the immigration authorities or police in countries where that information is not kept as secure as it is in this country? Would we be prepared to supply information to a country where the police regularly used violence and torture against people suspected of paedophilia?
These are important questions which make it doubly important that the Minister should be able to state unequivocally that these regulations comply with the Human Rights Act. I hope that, on the basis of legal advice that the department has obtained, the Minister is able to confirm that the regulations do comply with the Human Rights Act. If not, I believe that this is a very serious matter and that in certain respects the regulations may well be found to contravene the provisions of the Human Rights Act.
Lord Davies of Oldham: My Lords, I am grateful for the comments of the noble Lord who raises a fundamental point. If I was remiss in not indicating in my opening contribution the compliance of the regulations with the Human Rights Act, I apologise to the House. I take this opportunity to confirm that the regulations are compliant with that Act. I emphasise that the regulations are not about the exchange of information about the offender. The regulations are concerned with information that the offender is required to notify to the authorities; in other words, the regulations make no changes to existing police powers but merely require that the individual concerned indicates to the police—
Lord Goodhart: My Lords, the point is not that the regulations make changes to police powers but that they make changes to police information which can be passed on in a way which makes it possible for it to be used in breach of human rights.
Lord Davies of Oldham: My Lords, I understand the important point that the noble Lord makes. Under the regulations the information required is about travel and not any other aspect of the individual concerned. That information will be conveyed to other authorities only when it is consistent with the requirement to ensure that any offender is not likely to put at risk an individual in another country. The circumstances

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would be limited. I take on board entirely the point that the noble Lord makes. It would be quite wrong for information to be conveyed to regimes that might perpetrate unjustified actions against a United Kingdom citizen that would not be countenanced in this country; nor should we be compliant with such actions being taken elsewhere. In assuring the noble Lord once again that all aspects of the human rights legislation have been taken into account in the drafting of these measures, I commend the regulations to the House.
On Question, Motion agreed to.

Financial Investigations (Northern Ireland) Order 2001
8.37 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton)The Minister of State, Cabinet Office (Lord Falconer of Thoroton) rose to move, That the draft order laid before the House on 23rd April be approved [14th Report from the Joint Committee].
The noble and learned Lord said: My Lords, the troubles have left Northern Ireland a sad legacy of organised criminality. As the Prime Minister has said, everyone in Northern Ireland deserves to share in the benefits of peace. Organised crime is a threat to the fabric of society; it thrives on extortion, fear and violence. The draft legislation before us today is an important measure in the Government's strategy to meet the threat from organised and serious crime.
The police and other agencies involved in law enforcement have done a great deal to tackle organised crime during the past 12 months. There have been notable police successes against counterfeit goods and illegal drugs, as well as action against fuel and tobacco smuggling by Customs and Excise. In Northern Ireland the problem is exacerbated because of the links between organised crime and paramilitary groups. Just over half of organised criminal groups known to the police are either associated with, or controlled by, loyalist or republican paramilitaries.
Last September the Government established the Organised Crime Task Force in Northern Ireland. The task force recently published a threat assessment which makes it clear that fighting organised crime will be a long struggle and demand constant innovation and development by the law enforcement agencies and government. The task force recognises that organised crime is a multi-faceted problem which demands different answers from different agencies working closely together. Criminals look for new ways to prey on society, avoid detection and conceal their illegal gains.
The strategic priorities for the Organised Crime Task Force in this year include targeting money-laundering activities and seizing the proceeds of crime. The measure before us today is another element of the Government's strategy to pursue the proceeds of crime and is an example of our flexible response to an ever-changing criminal threat. By preventing criminals
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profiting from crime and removing the profits of those who have committed crime in the past, not only do we create a powerful deterrent to criminality but we make it harder for organised criminals to commit further crime and sustain themselves through financing new initiatives. Equally, by recovering the proceeds of crime we provide reassurance to ordinary people who no longer see criminals flaunting their ill-gotten wealth. The money recovered can be used for the benefit of the whole community.
Noble Lords will be aware that currently public consultation is being conducted on the draft Proceeds of Crime Bill published in March. The draft Bill, which extends to the whole of the United Kingdom, contains measures to improve the recovery of illegally obtained assets. The structures envisaged in the Bill take special account of the needs of Northern Ireland.
Another element in our strategy to pursue the proceeds of crime in Northern Ireland is the draft Financial Investigations (NI) Order that is now being considered. That amends the main legislation for tackling criminal finance in Northern Ireland—the Proceeds of Crime (Northern Ireland) Order of 1996. A key provision of the 1996 order was the introduction of powers for the appointment of a financial investigator to assist the police in carrying out investigations into the proceeds of crime. The very extensive powers of financial investigators are set out in Schedule 2 to that order. Among them is the power to issue a general bank circular for the purpose of identifying accounts held by named individuals.
The powers in the 1996 order are in addition to the normal powers of investigation available to the police. They are used only in selected cases, and only following a determination of a county court judge that the appointment of a financial investigator could substantially enhance the investigation.
Experience of operating the legislation has shown that it works well. Between August 1996 and December 2000, financial investigators were appointed in 28 cases. During that period, 23 general bank circulars were issued, resulting in the identification of over 1,200 previously unknown accounts in Northern Ireland connected with people under investigation.
However, experience has also shown that there are parts of the 1996 order that need to be adjusted and strengthened. The draft order before us contains a number of practical proposals for improvement which have resulted from discussions with and between law enforcement agencies in Northern Ireland. There are five main provisions to the order. First, Article 3 enables Customs and Excise officers to apply for the appointment of a financial investigator to assist them with investigations into the proceeds of crime. That power is currently available only to the police. The article also permits court-authorised customs officers, like their police counterparts, to issue general circulars to financial institutions and solicitors.
Secondly, Article 4 provides financial investigators with the same powers of access to material under a production order as are currently available to the

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police. It also provides that any application for disclosure of documents relevant to a response to a general solicitor's circular will be on notice to the relevant solicitor, thereby ensuring that any issues of legal privilege can be determined by the judiciary.
Thirdly, Article 5 effectively extends the range of financial institutions to which a general bank circular may be issued. At present, a general bank circular can require those institutions involved in "banking" in the narrow sense—that is, banks and building societies—to identify accounts held by a named person. However, we recognise that there is a trend in money laundering away from using banks and building societies towards greater use of securities, futures, options and insurance markets. Article 5 therefore provides that in future such circulars may be issued to institutions providing a much wider range of financial and insurance services—effectively services subject to the 1993 Money Laundering Regulations. These include investment firms, insurance companies and other institutions in the regulated financial sector.
Fourthly, Article 6 creates the power to issue a general solicitor circular. In future, investigators will be able to issue a circular to all or any firms of solicitors asking them to indicate whether they have acted for a named client in respect of certain matters, relating mostly to property and assets. That is an entirely new means of helping investigators in Northern Ireland to establish the beginnings of an audit trail in search of the proceeds of crime. But it reflects similar powers in other jurisdictions. Where a specified person is identified as a client, as well as providing the name and address, which is the limit of the current obligation imposed by the 1996 order, the solicitor will also be obliged to provide limited information about the client which is in his possession. That will essentially involve identifying the nature of the transaction; that is, whether the transaction involved land, a business and so on.
That power will be particularly helpful in tracing land transactions in the unique circumstances of Northern Ireland. Not only are there two systems for the registration of land in Northern Ireland, but the registration of title is not at present generally compulsory. Moreover, any records regarding ownership of land are kept by reference to the property rather than the owner.
Fifthly, Article 7 introduces an exception to the standard period within which a prosecution of a summary offence should be brought. At present it is six months after the offence was committed. The exception is in relation to summary proceedings for an offence of failing to provide information or of falsifying it. For such proceedings, the time limit for prosecutions will be three months from the date on which sufficient evidence to prosecute becomes available or 12 months from the commission of the offence, whichever is the later. That additional latitude may be needed in cases where a person has purported to comply with a requirement of a financial investigator but it is later discovered that the compliance was deliberately inadequate.
Perhaps I may say a few words about the consultations the Government have conducted on their proposal for the draft order. The proposal was laid before Parliament on the 21st November 2000. We invited the Northern Ireland Assembly to consider it. We took the opportunity to copy it for comment to organisations with an interest in the policy area. The Northern Ireland Grand Committee debated the proposal on 22nd March. A statement summarising the responses to the proposal, and a further statement of the change made as a result of these, has been laid before Parliament along with the draft order.
The proposal was received with broad approval. A majority of the Northern Ireland Assembly supported it. However, a number of concerns have been expressed. Questions have arisen about the civil liberties of people who might be affected by the new powers, whether innocently or otherwise. Others had concerns about the potential implications of the order for the confidentiality of the solicitor/client relationship and for legal professional privilege.
I confirm that, in the context of the European Convention on Human Rights, it is the Government's view that the provisions included in the draft order are compatible with the convention rights. The Government acknowledge that the powers available to the authorities to pursue the proceeds of crime are already far-reaching. The draft order augments these powers. So we must take care to ensure that these new measures are necessary, but no more than necessary, to meet the challenge posed by serious criminals.
Although we recognise the importance of the principles of solicitor/client confidentiality and legal professional privilege, the rules on client confidentiality and privilege do not extend to protect items held with the intention of furthering a criminal purpose. The duty of confidentiality is not absolute. Solicitors throughout the UK are already obliged to report suspicious transactions to the police or the National Criminal Intelligence Service.
In accordance with law, and as necessary in a democratic society for the prevention of disorder or crime, public authorities can make incursions into many of the rights protected by the European Convention on Human Rights. The rights of individuals have to be balanced against the needs and the rights of society in general. That is why we made sure that appropriate safeguards were in place to protect individuals.
Perhaps I may give a number of examples: first, the powers will continue to apply only to investigations into the proceeds of serious crime; secondly, the police, and in future Customs and Excise, will have to be able to persuade a county court judge that the use of these special investigatory powers is justified in each case; and, thirdly, the information which may be sought under a general solicitor circular is limited only to what is necessary to establish an audit trail. If the investigator requires more detailed information he must apply to the court, which can determine any issues of legal professional privilege. The value of these safeguards should not be underestimated.
In addition, we will bring forward a revised code of practice under the order. In doing so, we shall consult fully with the Law Society, and indeed with all interested parties, to ensure that the revised code reflects their experience and expertise in the implementation of the new procedures that the draft order will require.
I believe that the draft order will provide the police and Customs in Northern Ireland with the new powers they need to make essential inroads into the confiscation of the proceeds of crime. The draft order is a tough but measured response to a very real threat to our society. I commend it to the House. I beg to move.
Moved, that the draft order laid before the House on 23rd April be approved [14th Report from the Joint Committee].—(Lord Falconer of Thoroton.)
8.49 p.m.
Lord Glentoran: My Lords, I thank the noble and learned Lord for the full and clear way in which he has presented the order to the House. He covered two key matters referred to by my honourable friend, John M Taylor, on 30th April 2001 in the Fifth Standing Committee on Delegated Legislation in the other place. There my honourable friend referred to solicitor/client confidentiality, to which we clearly are a little sensitive. The noble and learned Lord has assured us that the Government have taken notice of that issue.
My honourable friend was also concerned about the legality of the proposed legislation in the light of the European Convention on Human Rights. From the noble and learned Lord's words today I assume that the Government have had another look at the matter, taken fresh advice and confirmed that this is safe in the light of the human rights legislation.
The Law Society of Northern Ireland supports the order. As the noble and learned Lord said, the level of crime in Northern Ireland is serious and is getting worse. New actions and new ideas are needed. I sincerely hope that the order will move the position forward. I am sorry that we have to go on having special legislation of this kind for Northern Ireland. The Law Society of Northern Ireland hoped that this would soon become United Kingdom law as opposed to Northern Ireland law. We started the ball rolling in 1996 with our order. It has clearly been successful. I am delighted that the present Government are expanding it. I hope that the order before the House will be even more successful. We support the order.
Lord Smith of Clifton: My Lords, one can hardly say that one welcomes the order as it is a rather sad comment on the state of affairs in Northern Ireland. However, one appreciates the need for it. Like the noble Lord, Lord Glentoran, I shall refer to Article 6. As many noble Lords will know, solicitor/client relationships in Northern Ireland can sometimes be problematic in a particular way that is not normally common in the rest of the United Kingdom. I therefore
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particularly welcomed the noble and learned Lord's statement that there would be further consultations with the Law Society of Northern Ireland in establishing the code of practice. That is a delicate area which needs to be sensitively probed with those who are experienced in the ways of the law and in professional relationships. That apart, we accept the need for the order to pass.
On Question, Motion agreed to.

Broadcasting (Subtitling) Order 2001
8.52 p.m.
Lord McIntosh of Haringeyrose to move, That the draft order laid before the House on 3rd April be approved [14th Report from the Joint Committee].
The noble Lord said: My Lords, the order revises the percentage set out in subsection (3)(a) of Section 20 of the Broadcasting Act 1996, which the Secretary of State is empowered to amend, after consultation with the Independent Television Commission, under subsection (1)(a) of Section 21 of the Act.
The order increases the minimum percentage of programmes that must be accompanied by subtitling for the deaf on digital terrestrial television services from 50 per cent to 80 per cent. Broadcasters are required to achieve that target by the 10th anniversary of the date of commencement of the provision of each digital terrestrial programme service, the first of which started in November 1998.
The intention to increase the percentage was announced by the Secretary of State for Culture, Media and Sport on 29th January this year. That was the result of a review of the statutory requirements for the provision of subtitling, sign language and audio description services on DTT. A report on the review was published on the same day and a copy has been placed in the House Libraries.
We know that digital technology has great potential for opening up new opportunities for each and every citizen and we aim to ensure that all groups can benefit from it. Access for all—able-bodied people and people with disabilities alike—is essential. People with disabilities will be able to gain substantially from the new and sophisticated services that digital technology can offer; services like home banking, home shopping and access to the Internet. Television services, including news, current affairs and entertainment programmes, are valued by people with disabilities, including those with sensory impairments. That is why the Department for Culture, Media and Sport undertook the review I mentioned a moment ago.
It began with officials discussing the issues with consumer groups, major broadcasters and the ITC, to gauge initial reactions. A consultation paper followed in July, to which 36 responses were received and carefully considered. Having taken all those responses into account, Ministers concluded that the target for the provision of subtitling on DTT programmes, which will be of benefit to at least 8.7 million people in the UK who are deaf or hard of hearing, should be

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raised from 50 per cent to at least 80 per cent. The order we are debating today, which was approved in the other place last Monday, will achieve just that.
As I mentioned earlier, the minimum target does not have to be achieved until a DTT service reaches its 10th anniversary. The first such service began on 1st November 1998 and, therefore, in view of the time that will elapse before even the longest established digital service will celebrate its 10th birthday, we believe that it is perfectly reasonable for the increased target of 80 per cent to apply to existing services in the same way as to services which have yet to emerge.
The ITC has the power to set interim targets. Those begin at at least 5 per cent for the first year and rise by 5 per cent each year to reach the existing 50 per cent target by year 10. All channels are meeting, and in some cases exceeding, these. The ITC will issue a revised code with new interim targets once this order has been made.
It has been noted, and questioned before, that the statutory targets for subtitling, signing and audio description do not include advertisements. As is the case with other programming requirements in broadcasting legislation, advertisements are specifically excluded from the definition of programmes in subsection (14) of Section 20 of the 1996 Act. That said, many advertisers already see the benefits of voluntarily providing the service. After all, it is in their interest to get their message across to a potential market of 8.7 million deaf and hard of hearing people. Although the ITC does not monitor the level of subtitling in advertisements, it has advised the DCMS that about 50 to 60 per cent of advertisers currently subtitle advertisements voluntarily.
We are keen to achieve a level playing field across all delivery platforms. That is why we also intend to extend the statutory targets—for subtitling, signing and audio description—on DTT to digital cable and digital satellite services. Primary legislation is required and we hope to introduce a draft communications Bill, to include this provision, early in the next Parliament.
For some time now the Government have been encouraging, these broadcasters to increase the amount of subtitling they voluntarily provide on their digital services, and some of the more established channels are providing a good service. Indeed, several of them exceed the existing interim targets despite a low audience share. But we believe that minimum statutory requirements need to be imposed for progress to be made.
We want to ensure the maximum practicable amount of subtitling provision. Some groups think it should be 100 per cent. In introducing the debate on the draft order in the other place last week, Janet Anderson referred to a question asked in this House recently by the noble Baroness, Lady Wilkins, along the lines of, "If the BBC says it can achieve 100 per cent, why can't the commercial channels?" The BBC has no statutory requirement to provide a subtitling service but, following the recommendation of the Davies review panel on the future funding of the BBC, the corporation accepted that on its new digital
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services, it would aim to achieve 50 per cent of programmes being subtitled in the next five years and 100 per cent by 2009.
My answer to a similar question, put by the noble Baroness, Lady Seccombe, recently, was as follows:
"We need to strike the right balance between practicability and benefit. During the consultation exercise that preceded the Government's recent announcement of the review, concerns were expressed, including by the ITC, that 100 per cent subtitling on digital terrestrial television was not a feasible target…It would be extremely difficult and expensive to subtitle all live programmes, late-running programmes and late-delivered material, such as promotions between programmes. There is also a danger that the financial costs to the smaller channels might result in them leaving the DTT platform…The 80 per cent target is challenging but achievable and is in line with the analogue target for 2004"
We must always look to improved technology in signing to increase the figure. If that becomes possible in the future, we shall certainly look to do that.
In conclusion, in my view the draft order is compatible with the rights in the European Convention on Human Rights. I commend the order to the House.
Moved, That the draft order laid before the House on 3rd April be approved [14th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
9 p.m.
Lord Luke: My Lords, we on these Benches welcome and support the order. It will also be very much welcomed by the 5 million deaf and hard of hearing people who regularly use subtitles and the t million who depend upon subtitles in their viewing of television. The potential number of users is even higher as there are, as has been said, about 8.7 million people in the UK who are deaf or hard of hearing. The target set in this order is not as high as the Royal National Institute for Deaf People had hoped, but I note that it warmly welcomes the order and recognises that this is a very important step forward. I thank the RNID for its helpful and pertinent briefing.
It is right as a matter of principle to ensure that as much broadcast material as possible is subtitled. After all, everyone loses out when hearing impaired people do not have the chance to participate fully in society. The media, particularly television, are largely responsible for forming the cultural reference points of society. The programmes that we watch on television and video are very much the topics of everyday conversation at home and at work. Subtitles and signing mean that hearing impaired people can keep in touch. Limited access can leave them culturally excluded and socially sidelined. It is important that we should be able to enjoy viewing television together as a group of family or friends, some of whom may have hearing impairment, and then be able to discuss the finer points of the programme afterwards.
We welcome the progress that the industry has made since the 1996 Act came into force and we agree that it is now time to go further. As the Minister pointed out, the 1996 Act provided for the extension that we are now considering and for consultation with the ITC. We all welcome the fact that various main terrestrial

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channels have accepted the new 80 per cent target. Channel 3 is already exceeding the target and BBC 2 has made great efforts.
The Minister mentioned that the Government intend to include cable and satellite television under the future communications Bill. We agree that the time is right to do that. I understand that Sky has already enthusiastically endorsed the target and has made significant progress towards it. We look forward to taking matters further through primary legislation at the earliest opportunity.
The Minister said that 80 per cent, not 100 per cent, was set as the target because some digital terrestrial television programmes are difficult to subtitle: in particular, news programmes and live broadcasts present problems. Those who do the subtitling for such programmes are lucky if they get even a few minutes' advance notice of the script and have to work at breakneck speed. They do an excellent job. It is true that live subtitling is more complicated and expensive than pre-recorded programmes, but it is equally true that many live programmes have an immense significance. Indeed, this is precisely why they are broadcast on a live basis. It is therefore reasonable to expect that a high proportion of live events, such as the State Opening of Parliament and the Cenotaph ceremony on Remembrance Sunday, should be accessible to the whole nation.
We should strike a balance between practicability and benefit, but it is right that we should exceed 80 per cent as soon as that is appropriate. The Royal National Institute for Deaf People is right to campaign hard on this matter. We need to press the matter further. At the same time, it is important to take into account the circumstances in which the industry has to operate.
I note that the RNID briefing makes reference to the low level of subtitling of advertising on television, a point mentioned by the Minister. At present, there are no statutory requirements for advertisements to be subtitled on digital terrestrial television. The ITC has estimated that about 50 per cent to 60 per cent of advertisers currently subtitle voluntarily. It seems surprising that advertisers are prepared the ignore the potential market of up to 8.7 million who have some level of hearing loss. I hope that they wake up to this mistake very soon.
We welcome and support the order. It is an important step forward, although we will want to make further progress in due course.
Lord Addington: My Lords, when one is campaigning and in the process of putting pressure on the Government to make improvements, and the Government bring forward an improvement from 50 per cent to 80 per cent, it would be churlish to do anything other than welcome it. However, there is always the caveat that one wishes for something better. The problem in this respect is that the major player in public service broadcasting has said that it can take
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subtitling to 100 per cent. That is something which hovers over this issue, and will do so for the foreseeable future.
Most of the arguments on this subject have already been rehearsed. We are not so much having a debate today as an ongoing dialogue. Basically we want to see the figure increased because at present a large percentage of the population find themselves excluded from something which is supposed to be for the mass of the population. It is that simple. I hope the Government will use their best endeavours to ensure that television companies exceed the 80 per cent figure.
I agree with virtually every word that has been said. However, it has been pointed out to me by the RNID briefing—I do not pretend that I would have spotted this myself—that if 80 per cent of programmes are to be subtitled, how will we choose the 20 per cent of programmes that are not to be subtitled? We could exclude all music programmes, for instance, but do the Government accept that there are different kinds of deafness and different kinds of hearing problem, and that the cultural contents of programmes are different—for instance, youth programmes have a different musical background from other music programmes? If we use that kind of criterion to choose the 20 per cent, we may well exclude some people from a major part of the social interaction which public service broadcasting is supposed to encourage.
The RNID suggests that the exclusion of programmes should be carried out simply on the basis of those with the lowest viewing figures. That would be a case of making a bad law. I have probably got that wrong, but never mind. If we get to that situation, we must know why a programme is being excluded. If we can achieve that, we shall be on a good path. I shall continue to apply whatever pressure and nudges I can to the Government to try to reach the figure of 100 per cent—or at least as near as damn it—but basically it would be churlish to say anything other than, "Well done, but we hope that you do better soon".
Baroness Wilkins: My Lords, I join with other noble Lords and with the RNID in warmly welcoming the draft order, which increases the requirement for subtitling for the digital terrestrial television service from 50 per cent to 80 per cent within 10 years. It is a victory for common sense. Unless we take steps to ensure that the needs of sensorily impaired people are accommodated in the digital age, as the Government have done in the draft order, we shall find that new technology serves only to increase the sense of exclusion felt by deaf and blind people rather than to diminish it.
I listened carefully to the Minister's arguments, but it is disappointing that the Government are reluctant to ensure that DTT channels match the BBC's voluntary target of a 100 per cent subtitling provision. The arguments advanced by the ITC, based on financial cost and feasibility, appear weak. Subtitling is now cheap to provide at only £400 per hour of programming. The cost will be further reduced over the next few years, and there is the increasing number of repeat programmes. Moreover, the rapid

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development in voice recognition technology should make it possible to cope with the problems of late-delivery programmes raised by the Minister.
I understand that the ITC plans to review whether Channel 3 and Channel 4 could exceed the 80 per cent target. I should be grateful if the Minister could clarify when, this year, the ITC will start and complete the review. An increase to a target of 100 per cent would be extremely welcome.
Will the Minister clarify the point raised by the noble Lord, Lord Addington; namely, what guidance is given to the ITC in deciding which programmes can be excluded from subtitling? At present, decisions appear to be based solely on assumptions as to the subjects that interest deaf and hard-of-hearing people. That can lead to all the dangers of patronising decision-making. I join with the RNID in asking the Minister to make sure that clear guidance is given, so that the process for making exclusions is transparent and is based on objective criteria.
Finally, I join with other noble Lords in giving the draft order the warmest welcome and support. I thank the Government for introducing it.
Lord McIntosh of Haringey: My Lords, I am grateful to all noble Lords who have responded to the order in such a positive way. I am grateful in particular to those who have highlighted the support for the order that has come from the Royal National Institute for Deaf People. I did not quote from the letter, of which I, too, have received a copy, but I do not need to since its 'views have been made clear.
Let me make clear, because this is the main thrust of the contributions that have been made, my strong belief that, as technology advances, it ought to be possible to increase the target from 80 per cent—perhaps not to 100 per cent but certainly to a higher figure than the one that is presently proposed. Eighty per cent is the figure that the ITC has arrived at as being realistic under the existing circumstances. As the noble Baroness, Lady Wilkins, points out, improvements, in particular in voice recognition technology, will not only make it possible for late-delivered programmes to be subtitled where it is not physically possible for that to happen at present, but will continue to reduce the cost of subtitling.
Under those circumstances, in a relatively short period—certainly within the next 10 years—the issue raised by the noble Lord, Lord Addington, and the noble Baroness, Lady Wilkins, of the choice of the 20 per cent of programmes that are not subtitled will no longer be relevant. We are working towards a situation in which, wherever it is physically possible to provide subtitling, we shall seek to require that there should be subtitling. Therefore, there will not be criteria such as the lowest viewing figures or whether a programme is thought by some outside body to be the kind of thing that people with hearing difficulties will or will not be interested in.
I was asked specifically about the ITC review on analogue. A seminar will be held on 14th May for broadcasters and hard-of-hearing groups and I hope
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that progress will be made at that stage. As to the specific issue of exclusions in the interim period, in the drafting of the communications Bill we are looking to providing guidance on that issue on the face of the Bill. In the light of the general welcome for the order, I commend it to the House.
On Question, Motion agreed to.

Financial Services Act 1986 (Extension of Scope of Act and Meaning of Collective Investment Scheme) Order 2001
9.15 p.m.
Lord McIntosh of Haringeyrose to move, That the order laid before the House on 10th April be approved [14th Report from the Joint Committee].
The noble Lord said: My Lords, this modest but worthwhile order extends a degree of consumer protection to investors in limited liability partnerships (LLPs) by amending the Financial Services Act 1986. It applies only to that Act for the moment We shall, of course, take steps to ensure equivalent protection before the Financial Services and Markets Act 2000 comes into force at the date described as "N2", which we have undertaken will be before the end of November this year.
Limited liability partnerships were created under the Limited Liability Partnerships Act 2000. They are corporate bodies without a share capital. The Act came into force on 6th April. The important point for the purpose of this order is that it will be possible to structure LLPs in a way that management is separated from ownership. This means that membership of an LLP can be bought and sold separately from the underlying business and its assets. These membership interests could be traded in the way that shares of a typical company are traded. We have acted to deal with trading in pooled investment interests.
The emergence of a new investment market is a possibility and not a certainty. But there is some interest in this possible development. Without this measure any such investment market would be unregulated, given that LLPs do not fall within any of the definitions of "investments" or "investment business" in Schedule 1 to the 1986 Act. We wish to provide a degree of consumer protection to ensure that dealing in membership of an LLP is a regulated activity under the 1986 Act.
The effect of the order is that the definition of a "collective investment scheme" in the 1986 Act will he extended to include LLPs. Therefore, to the extent that they function as collective investment schemes, LLI's will become subject to the same requirements of the regulatory regime as are applicable to other existing collective investment scheme structures. In practice, this means that anyone who sets up or winds up a pooled investment LLP will generally need to be authorised under the Financial Services Act. If an LLP is a collective investment scheme, it will need to be authorised itself. As the operator of the scheme, its

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assets will be controlled and traded by it on behalf of the underlying investors, as is the current position with an OEIC (an open-ended investment company).
An advertisement for the issue or sale of an LLP interest, which will be an investment advertisement, must be issued by or approved by an authorised person. However, the issue of an advertisement for new "partners" in a purely commercial or professional firm organised by an LLP should not be an investment advertisement.
There are restrictions on the promotion of unregulated collective investment schemes—these largely prohibit promotion to unsophisticated investors. Those prohibitions will apply to pooled investment LLPs. Firms currently engaged in setting up or operating collective investment schemes will be familiar with those requirements. Advisers will be familiar with the boundary questions that will arise in determining whether or not a firm is a collective investment scheme, as the same tests will be applied.
No additional regulatory costs are imposed on firms using the LLP structure, as opposed to other existing collective investment scheme structures used to undertake investment business. I want to emphasise that not every participation in an LLP is brought within the scope of financial services regulation by this change. That is not our intention, and it is not what the order does. The order merely provides that,
"limited liability partnerships are capable of being collective investment schemes".
The order addresses the situation where the right to take part in an LLP is packaged and held out as an investment. The process of a partner joining or leaving a working partnership, that has chosen to take advantage of the LLP Act and is structured as an LLP, will be unaffected by this order. This is because the order only does what it says: it allows LLPs to be collective investment schemes. It does nothing more. That is why I described it as being "modest". In particular, it says nothing about the process whereby members join or leave a business. The Limited Liability Partnerships Act 2000 governs these matters.
Some people may ask whether LLPs might be able to structure themselves so that, at one at the same time, they are able, first, to trade in their membership interests; and, secondly, they do not fall within the core definition of "collective investment scheme" in Section 75 of the Financial Services Act. If they are able to do this, it is asked: are they not unregulated? Similarly, is the order before the House of no assistance? The answer to that conundrum is as follows. Any LLP that is structured in such a way that non-working partners are able to trade in their membership interests will fall within the core definition of "collective investment scheme" under Section 75 of the Financial Services Act.
Where an LLP wants to obtain investment capital, it has a number of choices, which the order does not limit. In some professions the rules of the relevant professional body may limit those choices and might preclude the creation of what I could call "investment participations"; that is, for example, the case for
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solicitors. They can, of course, raise investment capital through the issue of debentures. But, if that is allowed, an LLP that seeks to create and market investment opportunities—that is, turning itself into an investment business—will be subject to investment regulation.
It is certainly not our intention to restrict the development of LLP businesses. We do not believe that this order will do so. However, we shall be able to keep this under review. We have a further opportunity to look at this when we legislate to bring in these protections under the Financial Services and Markets Act later this year.
It has been suggested—it was suggested in another place—that regulation akin to that of shares would be simpler. We considered that option. But in both economic and management terms LLPs are much closer to partnerships than companies with share capital, and the tax and regulatory framework generally looks to the respective partnership rules. This approach has the advantages of practicality and simplicity and of being built on an existing, widely understood regime.
The approach in the wider LLP legislation is to tax them in the same way as partnerships, and (at least in the default provisions in the LLP regulations) to set up a membership agreement which looks more like a partnership deed than articles of association of a company.
Adjusting the definition of "share"—which was what was suggested—would have the effect that every business organised as an LLP would be subject to some regulation (investment advertisements, prospectuses, advice and so on), whether or not the LLP was for investment purposes. This is the position with companies but not the position for partnerships (general and limited). This strikes us as over-regulation, given the expectations that the LLP structure is most likely to appeal to businesses currently structured as partnerships.
While it might have been possible to produce a way out of these difficulties that would have further complicated the issue. We considered the other alternatives of leaving them outside the regulatory structure altogether and creating a wholly new type of investment within the scope of the Financial Services Act (with the same result on advertising as adjusting the definition of share). I hope that I have made clear why those options were not pursued.
The benefits of the order are essentially precautionary. Without this measure there would be risks of investor difficulty or losses, but these are risks we think it is right not to expect investors to run as the sums involved could be substantial.
Of course we attach real importance to protecting investor confidence in the wider financial system (which any widespread problems undermine) and this change will contribute to that. In my view this order is compatible with the European Convention on Human Rights. I commend the order to the House.
Moved, That the order laid before the House on 10th April be approved [14th Report from the Joint Committee]. (Lord McIntosh of Haringey).
On Question, Motion agreed to.

Advisory Centre on WTO Law (Immunities and Privileges) Order 2001
9.22 p.m.
Baroness Ramsay of Cartvalerose to move, That the draft order laid before the House on 10th April be approved [14th Report from the Joint Committee].
The noble Baroness said: My Lords, the draft order will enable the United Kingdom to ratify the agreement establishing the Advisory Centre on WTO Law which was signed by the Secretary of State for International Development and presented to Parliament in May 2000 (Command Paper 4721).
The Advisory Centre on WTO Law will be located in Geneva and will be independent of the WTO. It will provide free or low cost support to WTO developing countries pursuing cases through the dispute settlement mechanism. The centre will assist developing countries to make use of the dispute settlement procedures, an area where developing countries are at a particular disadvantage compared to larger trading nations. The centre will also offer seminars on WTO jurisprudence, general legal advice on WTO law and an internship programme for officials.
The agreement establishing the centre includes provisions (Article 10.1) requiring members to give the centre legal capacity, in particular the capacity to contract, acquire and dispose of immovable and movable property and to institute legal proceedings. The draft order will enable the UK to give effect to these provisions once the agreement has been ratified and enters into force. The draft order will confer only legal capacity on the centre and will not result in any privileges and immunities in the United Kingdom for the centre or its staff. Similar legal personality has been granted to other international organisations in the past. for example, the International Jute Organisation based in Dhaka, the International Natural Rubber Organisation in Kuala Lumpur and the International Copper Study Group in Lisbon.
The final deadline for entry into force is 30th September .2002, but the centre's members have informally agreed that this should be brought forward to the earliest practicable date so that the centre will be able to offer its much-needed services as soon as possible. Entry into force requires only 20 signatories to deposit their legal instrument of ratification, acceptance or approval, a threshold which is likely to be passed before the end of this month in fact. Where United Kingdom ratification is critical is in meeting the second criterion for entry into force: the receipt of 12 million dollars to fund the centre's operation (6 million dollars of multi-year contributions from developed country members of the centre to cover start-up and running costs during the first five years and 6 million dollars for its long-term endowment fund). Once the UK instrument of ratification has been lodged with the Dutch Ministry of Foreign Affairs, which is acting as depository for the agreement, DfID will be in a position to release the first tranche of its £1.2 million multi-year contribution which will meet this second threshold.
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I very much hope that your Lordships will approve this modest, non-controversial order. I beg to move.
Moved, That the draft order laid before the House on 10th April be approved [14th Report from the Joint Committee].—(Baroness Ramsay of Cartvale.)
Baroness Rawlings: My Lords, I thank the Minister for the clear way she presented the order to the House. We welcome in principle establishing the advisory centre on World Trade Organisation law. We are also pleased to have the opportunity today to follow up the short but detailed debate that was held in another place on the order. It is important that we have had time to scrutinise the draft order as that is the proper job of your Lordships' House.
This order is timely, with the heated debate on globalisation and with so many unruly demonstrations around the world. The "Immunities and Privileges" title of this statutory instrument is provocative in itself—enough to make any rebel demonstrator over-excited. It is all that they would abhor even without, as mentioned in another place, the frivolous suggestion of parking ticket fines for diplomats.
We do not intend to oppose the order. However, I should like to pose a few questions, some of which were left unanswered in the other place. We agree with what was said in the speech of the Director-General of the WTO in January of this year—that the one major priority is to bring the developing and the least developed countries more fully into the WTO. This is a step along the way. For the agreement to enter into force, two conditions have to be met: the deposit of the legal instrument of ratification/acceptance by at least 20 signatories; and the presence of 12 million dollars of financial contributions reflected in these deposits, consisting of 6 million dollars for the endowment fund and 6 million dollars of multi-year contributions by developed country signatories. Thirty days thereafter the agreement enters into force.
Indeed, as of 21st March 2001, the preparatory committee agreed on the nominations for the management board of the centre, going so far as to invite the management board to start recruiting the executive director in consultation with the signatories while they await the deposit of the few remaining instruments of ratification, one of which is that of the United Kingdom. The agreed objective is to appoint the selected candidate for the post of executive director in the joint meeting of the constituent General Assembly and the management board so that the director could start up the office immediately afterwards.
Financing of the centre raises some interesting questions. Can the Minister help us by telling the House why the United States and EC countries such as France did not pay anything? Is any pressure being put on those countries to contribute? The European Community has been a member in its own right since 1st January 1995. What representations have Her Majesty's Government made to Brussels concerning that lack of commitment?

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It has not been made clear whether we have paid 1.25 million dollars, whether that is part of the endowment fund to be paid in instalments over five years or whether it is part of the required deposit that accompanies the ratification process. Are we putting the money in now, or by 30th September 2002, or when we deposit our instrument of ratification? I presume that we shall pay immediately. If not, we shall be out of sync with the other countries, which pay from 30 days after the 20th country has ratified. At present, it appears that we shall not be in the first 20. All that I seek is clarification on the timetable for the UK's contribution to the centre.
Annex 1 to Command Paper 4721 says that we intend to make a contribution of 1.25 million dollars to the annual budget during the first five years. It shows that we are not contributors to the endowment fund. Eight members of the WTO have each contributed 1 million dollars to the fund. During the debate in another place, the Minister said that the Government hope to do the same. That would make our contribution a considerable 2.25 million dollars.
In due course, the General Assembly will be requested to approve, as part of the financial regulations, the opening of a technical expertise trust fund which will be available to developing countries and economies in transition and to members for the part financing of technical expertise for the preparation of an underlying technical dossier. The trust fund is to be funded by donor governments and inter-governmental organisations only. Will that contribution be over and above the endowment fund contribution, or is it included in the payment? Are we being asked to approve an open-ended spending commitment or are there limits to our contributions? I raise the issue only because I notice that the centre is to be self-financing in the sixth year of its existence. To finance its regular activities after the first five years, the centre will draw on revenue generated by its endowment fund and user fees charged for the legal services in dispute settlement proceedings. The centre will be able, under strict conditions, to attract voluntary contributions from governmental and non-governmental donors for specific purposes that are not related to actual dispute settlement cases, such as training and internship programmes. Those voluntary contributions sound like open-ended spending commitments.
The immunities and privileges naturally do not concern parking fines, as the organisation will be based in Geneva, although there are meters there, too. What are the immunities and privileges? On whom are they being bestowed? Why does this institution have to be based in Geneva, where building costs and salaries are very high? With all the modern technology, why is a site in a developing country not being considered?
That leads on to an important question that Mrs Cheryl Gillan asked in the other place. We have recently passed legislation that highlights the exclusive poverty focus of the payments made from DfID. We are not sure that the 1.25 million dollars to be paid over the next five years meets the criteria laid out in that
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legislation. Will the Minister reassure the House that there are no tensions between the legislation and the payment, which appears to be for lawyers' accommodation and fees? The aims and objectives set out in the legislation are correct, but they have tied the Secretary of State's hands. Will the Minister reassure the House that the organisation is included in the legislation and that there is no lacuna into which the payment and that activity of the department fall? The payment is for lawyers and administrators and does not fulfil the poverty focus. No such assurance was forthcoming from the Minister of State, John Battle. I reiterate: will the Minister reassure the House that there are no tensions between the legislation and the payment?
We support this initiative. As I said earlier, we do not stand in its way. However, if the Minister is able to respond, we should like these few important points to be answered.
Lord Goodhart: My Lords, I shall be brief. The order and the setting up of the Advisory Centre on WTO Law seem to us to be an admirable way in which to provide practical help to the developing world. Speaking for myself, I can see no reason whatever why the centre should not be in Geneva, which is, after all, where a great deal of expertise is concentrated in fields of this type.
I have only one query and it is an entirely frivolous one. Why does paragraph 2 of the order, which seems to be simply a statement of existing fact, appear in that part of the order rather than as a recital to it?
Baroness Ramsay of Cartvale: My Lords, I thank noble Lords who have responded to my introduction to the order. I shall try to answer as many as possible of the questions raised by the noble Baroness, Lady Rawlings. I hope that she will forgive me if I do not manage to cover them all, especially given the lateness of the hour. However, I shall certainly write to her if I leave any unanswered.
She started by commenting on what the director-general said about the centre. It is welcomed very widely. At the signing ceremony, the former director-general of the WTO, Renato Ruggiero, also stated that the centre was one of the best and most constructive proposals in international economic relations that he had seen in a long time. I believe that we can all go along with that.
The noble Baroness asked about the position of the United States. She also mentioned France, which has not contributed money. As I said, all states appear to support the initiative. However, at present and for their own reasons, the US and France have opted not to become members of the centre. The US traditionally prefers to focus on trade development initiatives through bilateral means. However, it is possible that a number of countries that have not been at the forefront of the initiative will show more direct support nearer to the trade ministerial meeting at Doha which is to take place later this year.

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The noble Baroness asked some detailed questions about the payment made by the United Kingdom and about what would happen to that money. I have a large amount of detail on that matter. First, the noble Baroness is absolutely right that we did not contribute to the endowment fund. The agreement recognises a need for both endowment funds to reinvest for the long-term sustainability of the centre and for multiyear contributions, which can be budgeted towards medium-term running costs.
The UK funds have been welcomed as multi-year contributions because the endowment facility is already fully subscribed and donations have exceeded the minimum requirement. Multi-year contributions are crucial to the centre. The predictability of funds for the first five years will help the centre to use its budget effectively and efficiently. Multi-year contributions also represent an effective use of UK development budget resources because funds are not released in advance of need.
I turn to the questions of when instalments are due, how they will be paid and to whom. Once the agreement comes into force, which will be 30 days after all the instruments have been deposited, the UK will be invoiced for its contribution and our money will be paid to the ACWL itself—that is, the advisory centre—which is independent of the WTO. The fund will be managed by the executive director of the ACWL. The details of instalment amounts will be an internal matter for DfID. There are likely to be five instalments of £250,000, which will be transferred annually.
I hope that that has answered the main thrust of the noble Baroness's questions. I agree with the point made about Geneva by the noble Lord, Lord Goodhart. We both say, "Why not?". I also point out that Geneva is an excellent location for such a centre for advisory international legal expertise. It was therefore a natural choice and I am not aware that grave disagreements were expressed by any interested parties.
I do not believe that I have covered all of the points that were raised by the noble Baroness, but I shall write to her, send a copy to the noble Lord, Lord Goodhart, and for good measure put a copy in the Library.
On Question, Motion agreed to.

Criminal Justice and Police Bill
9.41 p.m.
House again in Committee.
Clauses 85 to 88 agreed to.
Schedule 4 agreed to.
Clause 89 [Functions of the Authority]:
The Earl of Northesk The Earl of Northesk moved Amendment No. 133 B:
Page 79, line 11, at end insert—
"() to determine the curriculum for police training:"
The noble Earl said: It may be for the convenience of the Committee if I state at the outset that I shall not move the other amendments that are grouped with Amendment No. 133B.
I begin by paying tribute to the professionalism and dedication of our police, particularly against the background of evermore difficult and complicated—some would say politically correct—circumstances. I also freely acknowledge that other noble Lords, including, most notably, the noble Baroness, Lady Harris of Richmond, are much better qualified than I am to address these matters.
I turn to the amendment, the purpose of which is straightforward. It would give to the central police training and development authority the function of determining the core curriculum for police training. In the unlikely but conceivably desirable event that politicians were obliged to submit to some sort of formal training, they would, I suspect, be somewhat aggrieved to have their core curriculum set by, for example, the Commissioner of the Metropolitan Police. I do not anticipate that the Minister will accept the amendment—that is not surprising in the circumstances—but I would be reassured if he could confirm for the record that it is categorically the Government's intention to receive appropriate and adequate consultation with all interested parties, such as the Police Federation and ACPO, on the substance of the core curriculum.
The Minister will be aware that I have several concerns about ICT training for the police but I do not intend to weary the Committee on that matter—it would inappropriate to do so at this time. I beg to move.
Lord Bassam of Brighton: Amendment No.:133B relates to the Government's intention to introduce a core curriculum for police training. Its purpose wall be to establish national standards with a view to improving operational effectiveness.
I can reassure the noble Earl that the content of any curriculum will be developed in consultation with the main stakeholders within the police service and the Secretary of State. There has already been extensive consultation on these matters. I can report to the Committee that this provision met with universal agreement. We are happy with the results of that consultation and are delighted that it has worked as well as it has. We shall continue to consult both on the core curriculum and qualifications. I am happy to confirm also that stakeholders will include those organisations which represent the police service at all levels.
Our simple argument is that Amendment No. 133B is unnecessary. We are already consulting and shall continue to consult. We seek to establish a broad consensus on the content of the core curriculum but there will be a power to prescribe as set out in the legislation. That power will ultimately rest with the Secretary of State.
The Earl of Northesk: I am extremely grateful for the confirmation and reassurances the noble Lord has given to the Committee. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 89 agreed to.
Clauses 90 to 97 agreed to.
Clause 98 [Regulations for police forces]:
[Amendments Nos. 133C to 133E not moved.]
Clause 98 agreed to.
Clauses 99 to 103 agreed to.
Schedule 5 agreed to.
Clause 104 [Transitional arrangements relating to Authority's establishment etc.]:
[Amendment No. 133F not moved.]
Clause 104 agreed to.
Clause 105 [Vice-chairmen]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 133G:
Page 86, line 1, leave out "one or more" and insert "not more than two"
The noble Lord said: We have now moved on to the next part of the Bill which deals with police authorities. Clause 105 deals with vice-chairmen.
We are not against the background and the principles of what is being suggested in this clause, but it provides that there can be an infinite number of vice-chairmen. It seemed to us that an infinite number was rather a lot so Amendment No. 133G suggests "not more than two" and Amendment No. 133H, more controversially, suggests that there should be only one. The other amendments are consequential. I beg to move.
Baroness Harris of Richmond: I remind Members of the Committee that I chair the North Yorkshire Police Authority and am a deputy chair of the Association of Police Authorities.
Clause 105 gives official recognition to the role of vice-chairmen and I want to explain my concerns in relation to the amendments tabled by the noble Lord, Lord Cope. Police authorities are small bodies. Most have only 17 members. Six authorities have 19 members and the new Metropolitan Police Authority has 23 members. However, given the size of most police authorities and the areas they cover, each and every member undertakes a considerable workload. That workload is constantly expanding as we try to achieve best value; to respond to new duties under the human rights and race relations legislation; and as we seek continuously to improve the local policing services and make them more responsive.
As chairman of a police authority, I can testify to the enormous demands and obligations that that position involves. I simply could not cope without the help and support that I receive from the vice-chairman of my authority. I fully understand why two vice-chairmen are needed to carry out the business in authorities with much bigger populations. The amendments tabled by
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the noble Lord, Lord Cope, would prevent that, as they state that police authorities can have only one vice-chairman, except for the Metropolitan Police Authority. If the MPA can be free to decide for itself the number of vice-chairmen it needs to operate effectively, I wonder why Parliament seeks to impose restrictions on the other 42 authorities.
The authorities themselves are best placed to decide how to go about their business, so I oppose the amendments put forward by the noble Lord, Lord Cope. I do not want one problem to be resolved by creating another. I hope that the noble Lord will not press his amendment.
Lord Bassam of Brighton: I pay tribute to the noble Baroness, Lady Harris, for her determined work. As the chair of a police authority she carries out a tremendous job. I know from having long conversations with her that, from her perspective, it is essential to share some of that burden with a vice-chair. While her police authority may not need two, she may occasionally benefit from having a second vice-chair.
We have provided for that in the legislation for the Metropolitan Police Authority and, like the noble Baroness, I completely concur with the argument that in certain police authorities—for example, those that may be geographically large or those that are large in terms of their population base and where there is much activity for the authority to undertake, partly under delegated powers to their chair or vice-chair—it is valuable to provide the facility of having not just one vice-chair, but two.
I also agree with the line of argument that says that the decision as to whether to have one or more vice-chairs of an authority is probably best left to the police authority itself. For those reasons we oppose the amendment. I hope that the noble Lord will see fit to withdraw his amendment.
Lord Cope of Berkeley: The noble Baroness, Lady Harris, suggested that because the authority is small, it should have more vice-chairmen. That appears to be an odd argument. The Minister referred to the "vice-chair". Fortunately the Bill does not, otherwise there would be quite a number of amendments. I appreciate that that may come from the background of the Minister, but I am glad that, presumably, the Home Secretary has nevertheless insisted that the Bill should refer to "vice-chairmen", which seems to me to be the more appropriate term.
The effect of Amendment No. 133G is that any police authority may appoint not more than two vice-chairmen. It is true that Amendment No. 133H, which is an alternative, suggests "a vice-chairman", but we were flexible to that extent. In the circumstances, I shall be flexible to the extent that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 133H to 133K not moved.]
Clause 105 agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 134:
After Clause 105. insert the following new clause—
"POLITICAL BALANCE ON POLICE AUTHORITIES
(1)In paragraph 4(1) of Schedule 2 to the 1996 Act (balance of parties on council to be reflected in appointments to police authority), for the words from "the members for" onwards there shall be substituted "in the case of the members for whose appointment it is responsible, the proportion who are members of any given party—

(a) where it is a council that is responsible for their appointment, is the same as the proportion of the members of the council who are members of that party; and

b) where it is a joint committee that is so responsible, is the same as the proportion of the members of the relevant councils taken as a whole who are members of that party."

(2) In paragraph 2(3) of Schedule 2A to that Act (which makes corresponding provision for the Metropolitan Police Authority), for the words from "the members for" onwards there shall be substituted "in the case of the members of the Authority who are members of the London Assembly appointed under this paragraph, the proportion who are members of any given party is the same as the proportion of the members of the London Assembly who are members of that party"."
The noble Lord said: This amendment clarifies the process of appointing councillor members of police authorities. Councils or joint committees are required under the Police Act 1996 to reflect as far as possible the balance of parties for the time being prevailing among members of the council or councils. The amendment will require them to take into account the overall composition of the council or councils taken as a whole, including councillors who are not members of political parties. They will be required to appoint councillors to the police authority in proportion to the composition of the council or councils as a whole.
As such, it corrects an anomaly left by the Humberside judgment. A number of Members of the Committee made firm protestations on the point at an earlier stage of the Bill. I reflected carefully on those comments and, while it does not benefit in any way, shape or form my own political party in local government, nor for that matter the political parties of other Members of the Committee, it seems to me to be right that we try to reflect more accurately the balance of political forces in the various local councils which comprise part of the membership of police authorities. I hope that the amendment will be welcomed. I am sure it will be. I beg to move.
Lord Cope of Berkeley: It is sometimes thought that those who support political parties are motivated solely by electoral considerations and calculations of party advantage. Therefore, it is proper to record the fact that I support the amendment. Indeed, I am sure it will receive support from Members on all sides of the Committee. That consists solely of the representatives of the political parties currently engaged at this point in a crucial general election, the outcome of which is extremely uncertain. The Cross-Benchers, who might
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be thought roughly to be the equivalent of the independent members of county councils, benefit from the passage of the amendment, which I support.
Lord Renton: I confess to the Committee that I have had a great deal of experience of this matter. I suppose it began back in 1934 when as a member of the Bar I prosecuted in a criminal case in Kent on behalf of the Kent police. In later years, I undertook judicial work in Kent, Essex and London and finally as Recorder of Rochester and then of Guildford. Later as a Queen's Counsel, I prosecuted in a number of murder cases. I have always admired the political independence of police authorities. They never seemed to be motivated by party advantage or considerations.
Although I was a supporter of the Government who passed the provisions in the 1996 Act, which the amendment will amend, I have grave doubts. Therefore, I say, "All right, let us accept the amendment because it merely continues an idea that was introduced in the 1996 Act, but if it is found to be unenforceable, let none of us worry".
Baroness Harris of Richmond: I, too, am delighted that the Government have listened and finally brought forward the amendment. I thank them most warmly The recent High Court judgment would have prevented any independent councillor from serving on a police authority. Clearly, that would have been wrong. It would have meant that the views of those local electors who voted for independent councillors could not be represented on police authorities.
This is a small but critically important amendment. It will return us to the status quo which prevailed before the recent court ruling, which we all call the Humberside ruling. It has been urged on the Government not only by the Association of Police Authorities but also by the Local Government Association, the Welsh Local Government Association and others. I, too, commend it to the Committee.
On Question, amendment agreed to.
Clauses 106 to 108 agreed to.
Schedule 6 agreed to.
Clauses 109 and 110 agreed to.
10 p.m.
Clause 111 [Funding by NCIS Service Authority]:
Baroness Harris of Richmond Baroness Harris of Richmond moved Amendment No. 135:
Page 93, line 14, at end insert—
"(1A) Before making a determination under section 17, the Secretary of State shall have consulted—

(a) those who he considers represent the interests of police authorities in England. Wales and Northern Ireland:

(b) those who he considers represent the interests of officers of police in England, Wales and Northern Ireland;

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(c) any other persons whom the Secretary of State may determine,

on—

(i) the considerations which he is minded to take into account in making the determination;

(ii) the objectives which he has determined for NCIS; and

(iii) other such matters as he may determine in order to inform the consultation process, including his assessment of the relative balance of funding, objectives and priorities which he is minded to determine for police authorities in England and Wales."

The noble Baroness said: In moving Amendment No. 135 I should like to speak also to Amendments Nos. 136 to 138. The provisions of the Bill radically alter the governance and funding of the two national police squads. When the squads were set up as recently as 1997, the clear aim was that they should be fully integrated within the tripartite structure which shares responsibility for policing between local and national interests. Two important steps are to be taken which increase central government control over the squads and considerably loosen the ties of local accountability: the reduction in the number of police authority representatives on the service authorities which oversee the squads and the move to fund the squads by direct government grant rather than, as at present, through local levies on police authorities.
I am sure that all members of the Committee recognise the important contribution that both squads make in fighting serious and organised crime at national and international level, but they also have a crucial role to play at local and regional levels in supporting and assisting local police forces. The levy system of funding had its difficulties but it at least provided an opportunity for debate about the balance of investment in local and national policing. However, if we move to direct central funding, decisions about the squads' priorities and funding levels should not be taken in isolation but in the context of the wider policing picture.
The other part of my amendment deals with consultation. I am most grateful to the Minister for his reply to my letter of concern about this matter. The Government have offered to consult on a voluntary basis but still do not wish to make this a statutory obligation. Discussions about how a non-statutory consultation process may work have so far not persuaded me that this is a sufficient safeguard. Statutory consultation will encourage greater transparency of government decisions about the funding of national and local police efforts, help government to strike the right balance in reaching those decisions and recognise that local police authorities and forces are key stakeholders in that debate and decision-making process. I believe that these amendments are important. They put scrutiny back into a vital policing service, and I urge the Minister to rethink his position. I beg to move.
Lord Cope of Berkeley: The Minister was kind enough to send me a copy of the letter which he sent to the noble Baroness, Lady Harris. I was reassured by that letter.
Lord Bassam of Brighton: Changes contained in the Bill to improve the funding of NCS and NCIS are vital. NCS and NCIS are right at the forefront of the fight against crime. They must be supported by an efficient and effective funding system if they are to drive forward the fight against high-tech crime, drug-trafficking, paedophilia and other forms of serious and organised crime. NCS and NCIS are major players internationally as well as at national level, and the need for international co-operation to combat crime continues to increase in importance.
We must move away from the parochial funding system that currently serves to divert attention away from the two services' operational and strategic priorities. The two directors-general of NCIS and NCS and the chairman of the service authorities support the need for improvement to the funding mechanisms to maximise the two services' operational effectiveness. We believe that the current funding system, which involves giving money to police authorities and then taking part of it away to fund both services through the levy, has proved to be divisive. A direct funding method will better enable NCIS and NCS to focus on working strategically with their partners to tackle serious and organised crime.
We do not believe that statutory consultation is necessary under the new arrangements. However, as has been confirmed, discussions are under way with the Home Office officials, NCIS, NCS and the stakeholders. The discussions include APA and ACPO. The aim is to maintain links between the two services and their partners by ensuring a robust non-statutory consultation, perhaps with greater flexibility. Nevertheless, the important elements of accountability are there and in place. I am happy to make that a matter of public record. As the noble Baroness said, we have had an exchange of correspondence. I had hoped that that would provide the necessary reassurance to all sides of the discussion.
I hope that the noble Baroness will withdraw the amendment. We believe that we have put robust measures in place. They certainly have satisfied the services. It is important that we now move to a voluntary and flexible form of consultation that will be of continued importance as, over the next few years, these important central services continue to develop their expertise.
Lord Cope of Berkeley: I omitted to mention Amendment No. 138A, which is grouped with the amendment. I apologise to Members of the Committee for that omission. I ask why in future are the Scottish authorities not to be consulted about the appointment of the Director-General of the NCIS?
Scottish, English or even Welsh people present may think it inappropriate that someone called Johnny Cope should be standing up for Scotsmen. I should say that General Sir John Cope was the only chap that

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Bonnie Prince Charlie beat at the battle of Prestonpans. The Scots later wrote a rude song about it which I shall not quote to Members of the Committee. So far as I know the general was no relation of mine, but the name has stuck because of the song.
Lord Bassam of Brighton: I cannot match that anecdote. The Government believe that there is no need for Scottish Ministers to be consulted twice during the appointment process for the director-general of NCIS. The process of appointing the director-general provides that the Secretary of State decides whether to approve the list of eligible candidates prepared by a panel of members for the NCIS service authority.
The intention is that the panel will interview the candidates and make recommendations to the Secretary of State. He is obliged to have regard to the recommendations and also to consult the Scottish Ministers before making the appointment. That ensures that the views of Scottish Ministers are taken into account before the appointment is made. The intention is that the Secretary of State will consult Scottish Ministers regarding the list of eligible candidates as well as concerning any recommendations made by the service authority.
I can tell Members of the Committee that the Scottish Executive is entirely content with the new appointment. process for the director-general. For that reason I cannot accept the amendment.
Baroness Harris of Richmond: I hear what the Minister says. I am still very disappointed by his response. The issue is about transparency. Although the 1997 Act provides for consultation, it does not say how the Secretary of State determines the size of the slices that go to these two very important bodies. If one does not have people watching and scrutinising what goes on then we shall be in deep trouble. We still do not know the right type of investment between national and local policing. However, the hour is late. I have no wish to keep Members of the Committee longer on a matter which may seem somewhat opaque to some people. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 136 not moved.]
Clause 111 agreed to.
Clauses 112 and 113 agreed to.
Clause 114 [Funding of NCS Service Authority]:
[Amendments Nos. 137 and 138 not moved.]
Clause 114 agreed to.
Clause 115 agreed to.
Clause 116 [Appointment of NCIS Director General]:
[Amendment No. 138A not moved.]
Clause 116 agreed to.
Clauses 117 to 124 agreed to.
Clause 125 [Chief superintendents]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 139:
Page 102, line 40, leave out subsection (6).
The noble Lord said: This amendment simply removes a redundant reference. That is all I have to say on the matter. I beg to move.
Lord Cope of Berkeley: I am sure that the Minister is well advised in what he said but it seems odd that subsection (6), which appeared to protect the conditions of service of some of our police officers, should be knocked out of the Bill. Are the conditions of service of these police officers to be affected by this amendment to Section 50(6) of the 1996 Act? During a change in the structure of the police service the conditions of service should be preserved.
Lord Renton: As my noble friend has pointed out, if a person is appointed before the coming into force of the Bill and the conditions of service of that person are questioned, a good deal of uncertainty could arise. The individual may be the person who suffers. I share with my noble friend Lord Cope a doubt about the omission of this subsection.
Lord Bassam of Brighton: It is essentially a technical amendment. It will have the effect of removing a reference to Section 50(6) of the Police Act 1996, which is no longer needed as Clause 125 no longer makes any amendment to Section 50(6) of the Police Act 1996. I hope that makes some sense to Members of the Committee opposite. It is simply a technical matter.
Lord Cope of Berkeley: Will the conditions of service of a police officer appointed before 1996 be adversely affected without subsection (6) if the amendment is carried? Will the conditions of service of someone appointed to a rank after 1996 but before the passage of the Bill be adversely affected if the amendment is carried?
Lord Bassam of Brighton: There are no implications for conditions of service. Conditions of service are preserved and are unaffected by the removal of this reference.
On Question, amendment agreed to.
Clause 125, as amended, agreed to.
Clause 126 [Inferences in police conduct proceedings]:
On Question, Whether Clause 126 shall stand part of the Bill?
10.15 p.m.
Lord Cope of Berkeley: We move to a matter which seems, to my noble friends and me and, for that matter, my honourable and right honourable friends in another place, to be of a wholly larger consequence than some of the amendments we have discussed in the past few minutes.
Clause 126 is about police conduct proceedings. I refer to circumstances where a police officer is up for a disciplinary offence and not a criminal offence, when he appears, like all the rest of us, before a court of law and answers to a charge. The standard of proof in a disciplinary offence is, of course, considerably lower than it is in a criminal court, and yet this clause seeks

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to insert into police conduct proceedings the idea that inferences may be drawn from a failure to mention a fact when questioned or charged. That is something with which we have become familiar—I hope that we are all supportive of that idea so far as concerns the criminal law—but police conduct proceedings are a different matter.
Our police officers are among the most supervised people in this country and, much wider than that, in most other countries. In the first place, they are answerable to the law of the land—no one is more answerable to the law of the land than police officers—and when the law of the land changes approximately 12 times a year as a result of Home Office Bills, as it does at the moment, it takes some keeping up with. Police officers are answerable to their police authorities and to all that that represents; they are answerable to the Police Complaints Authority with regard to individual complaints about their conduct; and they are extremely answerable to both Parliament and the media. It is noticeable that policemen, along with vicars and politicians, find that the slightest deviation from what is regarded as normal conduct is seized on by the newspapers and the rest of the media in a way in which the conduct of other members of the population—such as the editors of newspapers and journalists—is not.
The police are among the most supervised and scrutinised of individuals as they carry out their work. In these circumstances we should be extremely careful about the way in which we allow police disciplinary proceedings—necessary as they are—to be conducted. As I say, policemen are subject to the law of the land. They occasionally find themselves on criminal charges as a result of their activities in the course of their duties if they stray over the border—it is quite right that they should—but disciplinary proceedings are less than that. I, for one, am extremely unhappy about Clause 126 and I do not think that it should stand part of the Bill, particularly as the Bill has been introduced at such a late stage. This matter has not been discussed in another place; it has not been discussed anywhere. Unless it is discussed in less than 24 hours, when we have Report and Third Reading all collapsed into one, this is the only time it will be discussed. This is not the time at which we should introduce Clause 126.
Lord Renton: At first, I was mystified by the clause. I could not understand why it was needed or what it would do. So I turned to the Explanatory Notes, and there I learnt a little more about it. However, they are rather peculiar in the way in which they express the Government's intention.
The notes state that the clause,
"Amends section 50 of the Police Act 1996 to enable regulations made under that section to provide for Section 34 of the Criminal Justice and Order Act 1994 to apply in a modified form"—
what on earth is a "modified form"?—
"to procedures leading to a sanction being imposed on a member of a police force".
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The notes then state:
Such regulations would allow a modified caution".
I may be terribly ignorant, but I have never heard of a "modified caution". Cautions are cautions. They are not "modified" cautions. The notes go on to state something that does not need to be stated because it applies throughout our administration of criminal law:
"If the officer then chooses to remain silent, the tribunal at the subsequent hearing will be able to draw inferences from this".
In all criminal proceedings, if the accused decides to remain silent he either has a right to remain silent or, if he has no such right, inferences can be drawn anyway. I share with my noble friend Lord Cope of Berkeley an uneasiness about the proposed new subsection.
Lord McNally: I automatically gave way to the noble Lord, Lord Renton, because a correspondent told me recently that the noble Lord originally sat in the other place as a "National Liberal". Therefore, it was with deference and in the hope that he may one day rejoin us that I showed him that courtesy.
We, too, share the concerns expressed. This is yet another example of the dangers of this Bill going through "on the bounce". It would be interesting to know from the Minister what consultations have taken place with the various grades of representation of the police services. As has been pointed out, the Bill introduces an imposition on serving police officers that needs a great deal of consideration. I do not know whether it will apply to other services, such as the fire service and the Armed Forces. It moves from the criminal to the disciplinary in a way that needs full thought and some consideration before we should allow it through.
Lord Bassam of Brighton: This clause amends Section 50 of the Police Act 1996 to enable the Secretary of State, by regulations made under that section, to provide for the application of Section 34 of the Criminal Justice and Public order Act 1994 (inferences from silence in criminal proceedings) to proceedings in cases of alleged misconduct by police officers. The regulations would also introduce a revised caution—which I believe is what the noble Lord, Lord Renton, was referring to—to be given when the officer is notified of an allegation of misconduct, similar to the caution given in criminal proceedings.
The proposed new caution will warn the officer:
"You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in proceedings under these regulations".
If the officer chooses to remain silent, the tribunal at the subsequent hearing may draw inferences from it.
The clause removes an anomaly and brings the regulations on police conduct into line with those in criminal procedures where the new style of caution was introduced in the Criminal Justice and Public Order Act 1994.

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The Home Affairs Select Committee, in its report on police disciplinary and complaints procedures in March 1998, proposed this change on the basis that it would go some way towards addressing concerns over the use of "no comment" interviews in police discipline investigations. The committee's proposal requires primary legislation because the provision in Section 34 of the Criminal Justice and Public Order Act 1994 cannot currently be applied to police conduct proceedings by statutory instrument. Section 39 of that Act enabled the Secretary of State by order to apply Section 34 in a modified form to discipline proceedings in the Armed Forces, but there was no equivalent provision for proceedings in police discipline cases.
Noble Lords have asked whether there has been any consultation on the matter. I can advise the Committee that consultation on the clause took place through the Police Personnel Procedures Working Group. At that stage, the police staff associations were, I am advised, entirely content with the proposal. It is obviously the case that some of the associations have had second thoughts over the matter. That is perhaps what has generated a great deal of attention and interest in the issue at this late stage. However, as I said, there has been consultation. The proposal has been around for some time. It is our view that this, if you like, equalises matters somewhat and brings the concept into line with criminal proceedings.
As a Minister who has some responsibility for police discipline matters and one who has to review the findings produced by tribunals where there is an appeal to the Home Secretary, I can envisage some circumstances in which the inference of silence could have a most important bearing on quite serious allegations. The current position in police conduct proceedings is that an officer can refuse to answer any questions when interviewed. In normal civilian employment cases, an employment tribunal would be free as a matter of course to draw adverse inferences following a refusal to answer any question or questions. This provision, which implements the report of the Home Affairs Committee, preserves a limited right to silence, but there is no reason that it should go farther than the right in criminal proceedings. We believe that that is both right and appropriate. For those reasons, we are determined to resist the removal of this clause from the Bill. We believe it to be a most important clause.
Lord Cope of Berkeley: If the Minister persists in that view, I shall have to issue a caution—it will not be a modified caution—with regard to tomorrow's proceedings. I have two immediate questions for the noble Lord. First, can he tell us what the intended modifications referred to in the clause will be; and, secondly, to which cases will such modifications apply? It is patent that the provision will not apply to all cases; otherwise, there would be no reservation in the clause. It is also obvious that it will apply with some sort of variation from the normal criminal procedure.
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We should have some indication, at least in outline, of the modifications that the Government have in mind and the cases to which they will, or will not, apply before we pass this provision. The Minister referred to parliamentary proceedings. I do not know what proceedings will follow to enable us to consider what the modifications are to be and to which cases they will apply. I should be grateful to hear from the noble Lord what such proceedings will be.
With regard to the National Liberal Party, I should point out to the noble Lord, Lord McNally, that that party amalgamated with the Conservative Party a good many years ago. Whereas it is true that my noble friend did stand originally as a National Liberal, his party amalgamated with the Conservatives in the same way as the remains of the Liberal Party (after the National Liberals left them) subsequently merged with the Social Democrat Party, which ultimately became the present party. That seems to me to have been entirely satisfactory. We are extremely glad to have received the support of my noble friend over so many years.
Clause 126 agreed to.
Clauses 127 to 129 agreed to.
10.30 p.m.
Schedule 7 agreed to.
Clause 130 [Requirement to give reasons for granting or continuing bail]:
On Question, Whether Clause 130 shall stand part of the Bill?
Lord Phillips of Sudbury: We are unhappy about Clause 130. It seems to shift the onus on to an accused person to justify his or her liberty before they have been convicted. Under the Bail Act 1976 it is quite clear that it is for the prosecution to persuade magistrates that there are exceptional circumstances sufficient to justify a curtailment of the assumption of liberty. As I say, we see absolutely no reason to reverse that onus which, if I may say so, seems to be a tendency these days on the part of the Government.
The notion that magistrates must justify their refusal to deny bail is without warrant. It follows the trend exemplified in the Football (Disorder) Act where, if a Bench of magistrates does not impose a banning order for a football-related offence, it must give reasons for so doing. Our feeling is that, apart from the principle involved, the reasons that magistrates will give, if they are forced so to do, will very likely become formulaic. What use will that be to anyone? We believe that this is an indirect attempt on the part of the Government to lean on Benches to do the Government's general bidding in terms of adopting a more severe approach to their criminal function. For those reasons we do not wish to see Clause 130 stand part of the Bill.
Lord Thomas of Gresford: I support my noble friend. The Bail Act 1976 complies with Article 5.3 of the European Convention on Human Rights which states:
"Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".
That has been the subject of some jurisprudence in the European Court of Human Rights. It was decided in the case of Wemhoff v Germany that a person charged with an offence must be released pending trial unless the state can show that there are "relevant and sufficient" reasons to justify his continued detention. The Committee will note that the onus is on the state to justify continued detention with relevant and sufficient reasons. In the case of Clooth v Belgium convention caselaw emphasised that objections to bail must be specific and must be supported by evidence rather than generalised assertion.
In the light of that interpretation of Article 5.3, I fail to see how the proposed clause can possibly comply with the convention. As my noble friend pointed out, what is likely to happen is that the decisions that are taken by magistrates will probably be compliant decisions in the sense of a "box ticking" approach. My noble friend referred to a formulaic approach. That is the kind of thing that will happen unless a duty is put upon the court to analyse the competing strengths of the arguments of the prosecution and the defence and to come forward with a reasoned judgment as to why bail should be refused in a particular case.
However, that is certainly not what happens at the moment. A person who is arrested and is taken to a police station can be detained and bail may be refused by the custody sergeant. Any objections to bail, and the basis for the objections by the police, are outlined at that stage. But then the arrested person will be brought before the magistrate on the following day. There a lawyer will appear with a file which the police have put together containing the police summary of facts and the police reasons for objection. The lawyer concerned will have no opportunity at that stage to consider the merits or otherwise of the file that is placed before him by the police. The matter will be dealt with on a very summary basis. There will be no room for an adversarial argument in which the case for the continued detention and the case for granting bail will be assessed.
That is the reason why the Bail Act 1976 placed the presumption of bail on to the statute book. As my noble friend said, this provision undermines that basic principle which is in accordance with the European convention. Consequently, I support him in objecting to the clause.
Lord Bassam of Brighton: This clause simply requires a magistrates' court to give reasons for granting bail in cases where the Crown has argued in favour of withholding bail.
The courts are required by Section 5(3) of the Bail Act 1976 to give reasons when refusing bail to any defendant who benefits from the presumption to bail
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in Section 4. At present, there is no requirement, other than in cases where the defendant is charged with homicide or rape, for the courts to give reasons for granting bail in cases where the Crown has argued that one of the statutory exceptions is present. This clause will require courts to give reasons when granting bail in these circumstances, just as they are already required to give reasons when refusing it. The presumption to bail will not change; nor will the grounds on which bail may be withheld.
The aim of this clause is to achieve an objective which I believe is generally welcomed within the criminal justice system: the securing of greater transparency in decisions reached and in this instance bail decision-making. We believe that this will assist the police and the CPS in making their objections and greatly enhance public confidence in bail decisions, because the reasons for those decisions will be made plain.
We disagree that the presumption to bail will be undermined. The presumption to bail will not change; nor will the grounds on which bail may be withheld. The court will have to consider any prosecution submissions on bail. The measure is simply to ensure that these are publicly stated, publicly understood and publicly recorded.
For those reasons, we believe that the clause should stand part of the Bill. We think that it will project an important step forward in ensuring that the public have greater confidence in the system and that there is transparency and accountability.
Perhaps I may add this rider since convention rights have been raised. We believe that the duty to give reasons for bail decisions is very much in the spirit of Articles 5 and 6 of the convention and in the department's view is compatible with convention rights.
Lord Phillips of Sudbury: Before the Minister sits down, can he elucidate his claims that the giving of reasons after the event will somehow help the police and Crown Prosecution Service?
Lord Bassam of Brighton: If it is a matter of public record, then it will help the police and the CPS understand the thinking behind that decision. If at some point in the future the question of bail arises again, it will enable them perhaps better to perfect their objections. I think that that is an important point and worthy of their consideration.
Clause 130 agreed to.
Clause 131 [Remands and committals to secure accommodation etc]:
The Earl of Listowel The Earl of Listowel moved Amendment No. 140:
Page 105, line 31, leave out subsection (2).
The noble Earl said: It was drawn to my attention after Second Reading that several non-governmental organisations were concerned about the clause. The National Children's Bureau approached me, hoping to discover the likely consequences of the clause.
Since I tabled the amendments, the Minister has kindly written me a helpful letter explaining that 4,190 children and young people each year would be caught by the clause and would be placed in the secure estate. Some 200 of them would be placed in Prison Service accommodation. Perhaps the Minister can clarify whether that means young offenders' institutions or other such places.
This is a matter of great concern and I hope that we shall have an opportunity to examine it thoroughly. Perhaps the Minister can also tell us whether there was an opportunity to look at the issue closely in the other place.
My particular concern is that the improvements that the Youth Justice Board has wrought over the past few years and the existing good provision for children in the secure estate will be undermined by the large increase in inmates that will follow the implementation of the clause. If the secure estate is swamped by such a large increase, the children in it will be handicapped, its purpose of reforming work will not function and the risk to public safety will he increased by the hardening of juveniles in prison.
According to NACRO, 25 per cent of young people at Feltham young offenders institution were taking crack cocaine and there was a woeful lack of any service to meet the need to get them off that horrific drug. An extra £24 million is to be spent on providing places for the new children and young people. Perhaps that could be better spent on working with the existing young people and providing them with the services that they need.
In addition, experienced practitioners are concerned that children who do not pose a serious threat to the public will be remanded into secure accommodation. For example, if a child steals a loaf of bread while on bail, that could be an imprisonable offence if it is the last in a long string of similar offences. I ask the Minister to consider improving the clause by making sure that children are put on remand only when they are a risk to the public. In other words, will he ensure that the degree of seriousness is always considered?
Other options such as mentoring, special fostering and local authority secure accommodation often prove effective. The Home Office has found that the expected rate of reoffending among young people who had been sent to Shelbourne House in south London was 13 to 14 per cent less than among those who had been through the prison system. There are other options. Home Office figures show that 67 per cent of children coming out of Medway secure training centre reoffered within 20 weeks. NACRO has found that reoffending rates can be as high as 88 per cent. In those circumstances, we should favour other options for the sake of the young people and for the sake of the public at large. In addition, they should not be sidelined by Clause 131.
The Minister has kindly written to me with answers to my questions. However, for the record, can he say how many extra juveniles per year are expected to be placed within secure establishments as a result of Clause 131? Will that number be in addition to the 400
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new places which the Youth Justice Board has arranged for the next four years? If not, can he say where the extra children will be held? Paragraph 390 of the Explanatory Notes estimates the cost of tagging and remand to be £29.1 million. Can the Minister say what proportion is attributable to remand criteria alone? Do the estimates include the running and capital costs? I look forward to the Minister's reply. I beg to move.
10.45 p.m.
Baroness Stern: I support the points made by the noble Earl. I, too, am concerned about the great increase in the incidence of locking up children, more and more of whom are of a younger age. This is not the time to go into the world-wide consensus that children should be locked up only in exceptional circumstances.
I know that the Government are familiar with the UN Convention on the Rights of the Child and other international provisions. However, it appears that the proposal to remand into custody children as young as 12 for committing a string of imprisonable offences tips the balance between protecting the public and preserving the humane and proper treatment of individuals too far against the treatment of those individuals.
Perhaps I may remind the Minister of Article 17(1) of the Beijing rules on juvenile justice administration, which states:
"Deprivation of liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or persistence in committing other serious offences and unless there is no other appropriate response".
Perhaps I may also remind the Minister that the UN Convention on the Rights of the Child requires that measures taken against children should consider the interests of the child first. It may be in the interests of the child to lock him up in a secure training centre or in Feltham young offender institution. However, I do not believe that that is likely to be the case.
The imprisonable offences for which bail may be denied could include stealing sweets from a shop, stealing tins of drink and breaking windows—the type of behaviour in which children sometimes engage when they are in great distress. I want to ask the Minister why we are doing this. What benefits does he see in locking up children as young as 12? Why have the Government made no effort to define "seriousness" beyond a string of imprisonable offences? How many children will be affected? We understand that we are talking about 4,190 children per year. Is the Minister happy to lock up that number of children every year? Where are they to go? And could the cost, which I understand will be £24 million, not be more appropriately spent?
I end by putting my support for this amendment in context and by saying why I decided to keep the Committee here at this time of night for a few more minutes. I read in the newspapers the story of a 17 year-old boy called Kevin Henson, who was remanded into custody in Feltham young offender institution. Kevin had been going off the rails since he

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was 14 when his mother died of cancer. He took up drinking but did not get the help that he needed. He got into crime and ended up remanded in Feltham. He wrote a note that said:
"I want to be with my Mum",
and he hanged himself.
When I read about that case, I thought, "Is the best that we can do with a deeply distressed young person to lock him up in Feltham?" I felt guilty that that was the best that we could do and I decided that in future I should do what I could to make it clear why we should not consider locking up so many distressed children. Tonight is such an opportunity and I am glad to support the noble Earl's amendment.
Baroness Kennedy of The Shaws: I, too, support the amendment. I hear sighs from the Front Benches because we are dealing at this late hour with the topic of children in custody. I am sorry if this is taking up time. All I can say is that the situation is a source of shame to this country. What is so different about British children that they need to be locked up when children in Holland and other parts of Europe do not have to be locked up in similar numbers? Why are our children different? Is it that our system and approach are different?
In the early 1990s, I chaired a commission of inquiry for the Howard League for Penal Reform. I again hear a sigh from the Front Bench—I am sorry that the Minister finds it tiresome to talk about young people.
Lord Bassam of Brighton: I do not find it tiresome to talk about young people. As it happens I have a very young family and I enjoy talking about young people. I should prefer it if the noble Baroness refrained from making personal observations. Actually, I am quite tired.
Baroness Kennedy of The Shaws: I am sorry that the Minister is tired. However, this is a serious subject.
The commission that I chaired included some of the most impressive professionals that one could find in public life. It included the noble Lord, Lord Dholakia, who is now the president of the Liberal Democrats. He was then involved with the Police Complaints Authority and a sitting magistrate, and he was very knowledgeable on the subject of young offenders. The commission also included: Alan Levy, a QC specialising in children's law; Roger Gray, the criminologist and broadcaster; and Dr Irene Vizard, one of the leading child psychiatrists in this country. There were many people on that commission but we made our recommendations with one voice. We were profoundly concerned about the way in which custody—particularly remands in custody—took its toll on young people. Our experience was that increasing the number of child prisoners had a hugely deleterious effect on children. Children's experiences of custody were horrifying.
In the years just before our report there had been several suicides in Feltham. In the past 10 years, 30 children committed suicide in young offender
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institutions in this country. In 1998–99, there were 944 incidents of self-harm—children felt so distressed by the conditions of their custody that they harmed themselves. Bullying is also a serious issue in those institutions. Despite the best efforts of all involved, prison service staff had no background in childcare or welfare and their priorities were inevitably focused on containment and the security of the institution. For children and young people there was no such thing as a neutral experience of prison custody. Separation from their families, friends, home and community had a very deleterious effect on them.
Our report stated that we have to try to reduce the number of young people in prison, but we have seen an escalation in those numbers. It is estimated that the proposals will involve an increase of 4,000 in the number of children in custody. That is not an appropriate way in which to contain children. The Chief Inspector of Prisons recommended that we avoid doing so at all costs. Therefore, I say to those who are drafting this Bill and putting it before Parliament that, as the noble Baroness, Lady Stern, said, issues arise that need to be dealt with. To remain silent is to condone the containment of children in this way. Many of those children are actually in custody for offences which derive from their own disturbed backgrounds, and what they really need is help.
Three years ago, in different circumstances, the noble Baroness, Lady Stern, asked, "How much imprisonment can a society afford? What shall we have to go without in order to have such a large percentage of people made dependent on state funding?" But the numbers are increasing and all the evidence shows that it is damaging to children. I ask that the Government think again about these measures because of the cost to all of us as a society. There must be a different way.
Lord Phillips of Sudbury: Before the noble Baroness sits down, can I ask whether she feels that it is impossible to comprehend a situation in which Her Majesty's Inspector of Prisons is able to certify a young offender institution as being unfit for the receipt of further juvenile offenders for their own safety?
Baroness Kennedy of The Shaws: That question is best answered by the Minister, who is aware of the criticisms of young offender institutions made by the chief inspector. He will be able to answer better than I.
Lord McNally: We on these Benches support Amendment No. 140 and are grateful to the noble Earl, Lord Listowel, for bringing it forward. It is another illustration of the folly of rushing through this legislation. The answer to the question posed by the noble Baroness, Lady Kennedy, lies at the hustings. The Government were clearly hell-bent on being able to boast various measures dealing with yobs, hooligans and thugs, and all the other Sun-friendly terms describing young people. The result is this rushed, ill considered Bill.
It is late and I am sure more than just the Minister are thinking of their beds. But if this Chamber is to do its duty, particularly its duty to children, we must have

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pause for thought. The idea, particularly after some of the recent reports of the appalling conditions in young offender institutions, that the solution is to send even more young people away almost beggars belief. I make no apology for quoting from the briefing from the Law Society. It states:
"The issue of how children are dealt with in the criminal justice system is a matter that has been under review and subject to considerable reform over the last few years. Intervention, in the shape of referral orders and parenting orders to divert the child from the criminal justice system, is part of long term strategy to reduce re-offending and pilots on referral orders are underway in different sites in the country. The treatment and care of children, whatever their offending history, is a sensitive matter and should be subject to public scrutiny and debate prior to legislative change. Unfortunately, the Bill simply proposes that a child's offending behaviour can in itself be sufficient to remand to secure accommodation even where the public is not at risk".
Ministers should take that kind of criticism of this measure on board and pause even at this stage, not least because of the criticisms made this evening from well informed, influential and committed people on the Cross Benches.
Lord Phillips of Sudbury: The noble Baroness, Lady Kennedy, quite reasonably asked me to re-address my question to the Minister, and that I do.
We have heard this evening some extremely well informed contributions in relation to these amendments. The noble Earl, Lord Listowel, told us that a quarter of all youngsters at Feltham are on crack cocaine. That is a quite horrifying statistic. What conceivable benefit to a young offender, let alone to society, can there be in sending a young person to such a place with the near certainty that he or she will be subject to temptations and to opportunities that they may not have experienced outside? Therefore, is it not practical to consider placing a stiff requirement in the legislation that would prevent that?
With regard to Amendments Nos. 141 and 142, which exclude the second alternative of putting a young offender into secure remand, namely,
"to prevent the commission by him of imprisonable offences",
I consider that the case has been unanswerably made that paragraph (a) is sufficient. We should simply be concerned about circumstances in which it is necessary to protect the public from serious harm so that such a remand takes place and so that the second limb is implicit within the first limb, except in those cases where it is not necessary for a person to be remanded securely; namely, the re-commission of what may be considered to be offences of a minor order.
11 p.m.
Lord Bassam of Brighton: I have listened with considerable interest, and no little concern, to what has been said in support of these amendments, which have rightly been moved in a spirit of concern by the noble Earl, Lord Listowel. It is a well-intentioned series of amendments. Ultimately, I am not convinced by the quality of the amendments, nor do I believe that they acid substantially to what we are attempting to achieve in terms of the criminal justice policy, in terms
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of the way in which we approach the juvenile estate and the proper concerns about the way in which we treat juveniles in the criminal justice system.
The amendments will have the effect of leaving current law on the criteria for the secure remand of juveniles as it is. That means that a juvenile aged 12 to 16 years may be placed on secure remand only if he or she has been charged with a grave offence, or has a recent history of absconding while remanded to local authority accommodation and has been charged with, or convicted of, an imprisonable offence alleged or found to have been committed while so remanded. In either case the court must also be of the opinion that only a secure remand will be adequate to protect the public from serious harm.
The amendments collectively are defective Amendment No. 140 would remove from the Bill the new criteria that would al low courts to remand into secure detention 12 to 16-year olds who repeatedly commit imprisonable offences while on bail or on remand to local authority accommodation.
Amendments Nos. 141 and 142 would remove the new additional and alternative condition that the court must be satisfied that only a secure remand would be adequate to prevent the young offender from committing further imprisonable offences.
The Government believe that courts should have the additional option of placing on secure remand young people in that age group who have a recent history of repeatedly committing imprisonable offences while on bail. However, there are clear safeguards. The court must also be satisfied that only a secure remand would either protect the public from serious harm from the youngster or—this is new—prevent the commission by him or her of further imprisonable offences.
We are not talking about minor offences. These are potentially serious offences which if committed by adults would attract a term of imprisonment; serious thefts, criminal damage, serious assaults and so forth. It is important that courts have the option of placing youngsters who repeatedly commit such offences in secure detention. It allows the courts to stop a serial juvenile offender from walking free from court and committing further offences.
Is it not the case that we often hear about such cases and read about them in our newspapers? Yes, perhaps we even read about them in the Sun from time to time. That is not to mean that we want to appeal to base instincts but the issue is a serious one and it frustrates the criminal justice process. Such cases can cause great offence and suffering to local people, local communities and the youngsters' families. At present, the law appears powerless to stop it and to do so quickly.
In saying that, we do not argue that any offending on bail would justify a remand into secure detention. The clause confines the new power to imprisonable offences. That would, for example, catch the kind of case we come across all too often where the young bail bandit commits a string of thefts and burglaries while awaiting a further court appearance. When during the past couple of years I have been around and about

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talking to representatives of crime and disorder partnerships I have heard that story in many of our towns, cities and communities. People simply want relief from it and they are looking to government to provide it. I do not believe that we can walk away from that issue.
Most importantly, the new clause will require courts to consider all the possible options before deciding whether to remand the child or young person into secure accommodation. There is a significant range of alternatives to custody and our Government have a record on that of which we can be proud. We are trying to provide a range of alternatives and we have strengthened them so as to ensure that community-based sentences as an alternative can be used whenever and wherever possible and appropriate.
In conclusion, we would expect the courts to use the power where it is appropriate and right to put such youngsters into secure remand—but only as a last resort. The clause has been deliberately designed in that way.
Comments have been made about the statistics and I shall clarify the matter for the record. We estimate that about 4,000 children and young people would be caught by the extension of the secure remand criteria. That does not mean that the population of children and young people in secure establishments will grow by that number each year. In order to provide for that, we would need to provide about 370 additional secure places; 200 of those within the prison service estate and 170 in other parts of the juvenile secure estate. Allowing for the 200 places which we expect to become available from within the prison service juvenile accommodation, we estimate that Clause 131 will require a net addition of 170 places to the estate. That is over and above the 400 new places which the Youth Justice Board already plans to make available over the next four years.
The cost is of the order of £29.1 million a year. Of that, roughly £24 million is attributable directly to Clause 131. We envisage that the additional places will be provided in secure training centres under contract to the Youth Justice Board and funded like the present establishments through annual payments covering operating costs and the costs of the capital employed.
In government, we have been trying to improve the quality of education and training in the youth estate. We aim to provide a range of activities, including full education, training courses, physical education and, importantly in this regard, offending behaviour programmes which I argue will get to the root and tackle the causes of offending and, importantly, reduce the risk of re-offending. It will begin to enable such young people to lead a better life outside the institutions.
Under the order, those under school leaving age are required to receive a minimum of 15 hours' education per week, and all young people are required to spend at least 10 hours a day out of their cells with at least 30 hours per week engaged in purposeful activity. We are
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a long way towards achieving those objectives which we believe will improve the quality of support and encouragement that is given to young people.
Like many members of the Committee, I am very concerned about young people in our society. I have a young family. I spend a lot of time visiting the secure estate and the way in which we regard young offenders. The Government believe that there is a good deal more to do in that policy area but that, where essential, secure accommodation should be made available, and this part of the legislation provides for that. Therefore, we must resist these amendments, ultimately in the best interests of those whom they are designed to serve.
The Earl of Listowel: Before the Minister sits down, can he inform the Committee how many young people and children will go into young offender institutions, if any? Perhaps none will do so. However, can the Minister say how many of the 200 or so who enter the prison establishment go into young offender institutions?
Lord Bassam of Brighton: I said that we would provide 170 places in other parts of the juvenile secure estate and 200 within the prison estate. Obviously, I shall consider the noble Earl's point further, but I believe that that answers his question.
The Earl of Listowel: I am very grateful to the Minister for his full response to my amendments and questions. I shall think carefully about what he has said. I should like to make two further comments. First, the Minister pointed out the important work undertaken by the Government to improve the situation of young people in prison. I visited Feltham recently and saw the impressive improvements to the juvenile section at that establishment. The Youth Justice Board is doing good work in mentoring and other matters, to which I referred earlier. One point that has been raised with me is that mentoring and specialised fostering can be very effective in dealing with young people on bail who are problematic. Another point raised with me is that 67 per cent of young people who come out of Medway secure training centre reoffend within 20 weeks. Would the £24 million be better spent on promoting those schemes whereby young people are dealt with before they enter prison? In an ideal world, if we had decent prisons where children were treated humanely, perhaps that would be the right place for them, but we know that at present that is not so.
Secondly, one must be careful not to allow extreme cases to make bad law, which is a remark that I have often heard in this Chamber. I am aware that there are some appalling incidents. I am assured that the kinds of measures that I have described can be very effective in reducing offending and bringing wild children under control. I shall consider very carefully what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 141 and 142 not moved.]
Clauses 131 to 138 agreed to.
Schedule 8 [Repeals and revocations]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 143:
Page 161, line 22, at end insert—

"Title and reference

Extent of revocation

The Police and Criminal." Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I 12))

Article 64(4)

The noble Lord said: Amendment No. 143 is a minor amendment to the repeal schedule to the Bill. It repeals Article 64(4) of the PACE (Northern Ireland) Order. It is consequential on the amendments to that order made by Clause 84 of the Bill. It parallels the entry in the repeal schedule relating to Section 64(4) of PACE which is consequential on Clause 83 of the Bill. I fully and frankly admit to the Committee that in error it was omitted from earlier drafts of the Bill. The amendment simply remedies that omission.
On Question, amendment agreed to.
Schedule 8, as amended, agreed to.
Clause 139 [Short title, commencement and extent]:
[Amendments Nos. 144 and 145 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 146:
Page 112, line 18. leave out "37" and insert "(Permitting use of controlled drugs on premises)"
On Question, amendment agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 147:
Page 112. line 29, leave out subsection (8).
The noble Lord said: Clause 139(8) limits the extent of Clause 127 to Great Britain. Clause 127 provides for pensions for members of the National Criminal Intelligence Service and the National Crime Squad. Policemen attached to these bodies for a period of service continue to "clock up" their pensions. The words "Great Britain" limit the provision to the mainland, which excludes Northern Ireland. Clause 139(6)(e) appears to contradict that matter to a limited extent. Nevertheless, I ask why the RUC is apparently being discriminated against in the matter of pensions?
Lord Bassam of Brighton: We do not believe that there is any reason to depart from the normal practice when dealing with provisions which amend existing legislation. In this case the Police Pension Act 1976 extends to Great Britain. Clause 127, which amends
1020
that Act, should therefore continue to extend throughout Great Britain as currently provided for in Clause 139.
The devolved administrations have been consulted about the terms of Clause 127, including its extent. However, as primary legislation on pension matters is a reserved matter, there is no difficulty in our passing appropriate primary legislation on the point. The making of the necessary regulations would be entirely a matter for Scottish Ministers.
The noble Lord raised the position of RUC officers. Perhaps I should make it clear that NCIS is an organisation that extends throughout the United Kingdom. Clause 127 does not, as drafted, on the face of it extend to Northern Ireland. That appears slightly odd. However, I can assure the Committee that that does not cause any great difficulty. That is simply because we are ensuring that a small number of officers on fixed term appointments who may, before appointment, have worked in any UK police force are able to be members of a pension scheme. That pension scheme gives them the same benefits as they would have had had they not joined NCIS.
The pension arrangements applying to police officers with all UK forces are the same, although covered by different regulations and, in the case of the RUC, different primary legislation. It makes no practical difference under which regulations they are covered; the key is that NCIS will be responsible for paying the pension on retirement and that the pension should be calculated on the same basis as it would have been in the absence of a transfer to that organisation. It is not a question of discrimination. The point is covered. We understand the issue raised by the noble Lord. The clause simply ensures that the current provisions continue over.
Lord Cope of Berkeley: Under Clause 139(6), Part 6, so far as it relates to the National Criminal Intelligence Service, covers Northern Ireland, whereas the rest of Clause 127—the provisions relating to the National Crime Squad—do not cover Northern Ireland. The Minister has given assurances that the Royal Ulster Constabulary will not be discriminated against. Many of us would take it extremely ill if the RUC were discriminated against in this way. However, in the light of the Minister's assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 139, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at twenty-three minutes past eleven o' clock.