Lords Sitting of 22 July 2002

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

European Union Budget
Lord Dubs Lord Dubs asked Her Majesty's Government:
Which European Union countries are net contributors to the budget of the European Community and which accession countries are expected to be net contributors.
Lord McIntosh of Haringey: My Lords, information published by the European Commission and European Court of Auditors shows all member states except Greece, Spain, Ireland, Portugal and Finland to have been net contributors to the EC budget in calendar year 2000, the last year for which information is available. It is too early to determine the net budgetary positions of the new member states on accession to the European Union. Negotiations on the financial aspects of enlargement are in progress.
Lord Dubs: My Lords, I thank my noble friend for that Answer. Is he aware that it is the view of senior figures in the Polish Government that, as things stand, Poland is likely to be a net contributor to the European Union budget on accession? They feel that that would be an absurd outcome, given that Poland would be one of the poorest countries in the European Union. Such a situation might give rise to strong opposition in Poland in any referendum on accession and could result in a negative outcome.
Lord McIntosh of Haringey: My Lords, I understand the difficulties to which my noble friend
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Lord Dubs refers. The financial negotiations are, of course, incomplete. We do not yet have the budgetary chapter, nor do we have the amounts for the structural and cohesion funds. All those matters must be resolved at the summit in Copenhagen in December. Generous financial proposals are being made for accession candidates. No doubt Poland will benefit from those.
Lord Williamson of Horton: My Lords, does the Minister agree that, although the accession negotiations are close to a conclusion, the two vital dossiers—budget and agriculture, which are two sides of the same coin—are still open? It is perfectly feasible to avoid demanding an unjust budget contribution from the acceding states, by the use of transitional or other arrangements. Does the Minister agree that it would be helpful to express figures not only in money but as a percentage of gross national product? Incidentally, that would show that the United Kingdom was the fourth or fifth largest contributor.
Lord McIntosh of Haringey: My Lords, I agree with the last point made by the noble Lord. He is right to say that the negotiations are close to a conclusion on some issues. However, as I said, there are still major financial issues to be resolved.
We are happy with many of the details of what is being negotiated with regard to the common agricultural policy; we are not happy with the fact that no savings are proposed.
Lord Howell of Guildford: My Lords, while we are talking about budget contributions, perhaps I may ask the Minister whether he is aware that, according to the latest figures, this country has been saved £29 billion because of the abatement negotiated by my noble friend Lady Thatcher in 1984.
I turn to the issue of the contribution to be made by new members. Does not the attempt to achieve enlargement without fundamental reform of the common agricultural policy present Poland—Polish

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agriculture, in particular—with an enormous problem? It makes things difficult, if not impossible, and could undermine the entire accession process.
Lord McIntosh of Haringey: My Lords, I acknowledge the value of the abatement negotiated by the noble Baroness, Lady Thatcher. It was, of course, renewed by this Government. There is no doubt that there are huge difficulties in the accession countries with the common agricultural policy. That is why it has been proposed that payments should be at the rate of 25 per cent from 2004, rising to 100 per cent only in 2013.
Lord Watson of Richmond: My Lords, does the Minister agree that the CAP is at the heart of the question? The best and fairest way forward available at the moment is the surprisingly radical reform of the CAP just proposed by the European Commission. Will the Minister give broad endorsement to that proposal?
Lord McIntosh of Haringey: My Lords, I said that we were disappointed at the fact that no savings were proposed. I could have said—and am happy to say now—that we are happy with the decoupling of payments from production and with the environmental, animal welfare and food safety provisions of the reforms.
Lord Tomlinson: My Lords, notwithstanding the important points made by my noble friend Lord Dubs and the noble Lord, Lord Williamson of Horton, about mitigating the most serious costs to the accession countries, does my noble friend agree that we make a fundamental mistake in talking only about the cost of the European Union, when, in fact, it is a cost-benefit equation? We ought to put at least as much emphasis on the benefits of membership for the accession countries as on the costs.
Lord McIntosh of Haringey: My Lords, that certainly applies to us. Three million jobs in this country are linked to exports to the European Union, and the best calculation is that the benefit to our gross domestic product is £1.75 billion. Such considerations apply equally to the accession countries, although the extent to which they apply is yet to be determined.
Lord Brooke of Sutton Mandeville: My Lords, I shall not deny the Government their credit for having renewed the British abatement. However, does the Minister agree that, as the rule for voting on the abatement requires unanimity, there is no way that the Community could have secured it without our approval?
Lord McIntosh of Haringey: My Lords, that was part of the negotiation completed successfully in 1984 by the noble Baroness, Lady Thatcher. I have never denied that. I do not do so today and I have not done so when the issue has arisen on previous occasions.
Lord Bruce of Donington: My Lords, will my noble friend see to it that steps are taken to ensure that the Commission does not try to take over the role of governments in this matter and thus may present all governments with a. fait accompli?
Lord McIntosh of Haringey: My Lords, I am not sure what my noble friend means when he says, "in this matter". The European Commission is not going to take over the role of governments. Neither this country nor any other member state would agree to that. It is not even being proposed.
Lord Campbell-Savours: My Lords, while it is true that there was an upside to the question of abatement, is it not also true that there was a downside? During the negotiations with the European Union, we found repeatedly that we were compromised by the very existence of the abatement and thus we lost out.
Lord McIntosh of Haringey: My Lords, the point about our renewal of the abatement was that we succeeded in doing so while restoring ourselves to a position at the heart of the European Union. That was the significant achievement of this Government.
Lord Stoddart of Swindon: My Lords, the noble Lord referred to Poland as one of the applicant countries likely to make a net contribution. Are any other countries from the nine applicants also likely to make a net contribution? Furthermore, will the countries that are currently net recipients lose out, thus meaning that those which are net contributors will have to pay more?
Lord McIntosh of Haringey: My Lords, I did not say that Poland would be a net contributor. In response to my noble friend Lord Dubs I said we were still in financial negotiations and thus we do not yet know. We have made generous financial proposals to the candidate states, but we must acknowledge the difficulty that those countries will find that it takes time to put forward realistic proposals for the use of the funds which will become available to them, in particular the structural and cohesion funds. Those proposals may take time to develop. Thus there may be accession countries that are in deficit at the beginning, but which will recover their position as time goes on. That applies not only to Poland but to all the other accession countries.

Prison Education and Training
2.46 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
Whether they will consider introducing a nationwide incentive scheme in HM Prisons and young offender institutions to encourage inmates to improve their educational skills and employment prospects.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, yes, we will consider a national policy as part of our longer-term strategy for improving the skills of prisoners. We want to see more prisoners involved in learning and benefiting from it. Our approach will be informed by existing good practice and by the outcomes of the current review of funding and procurement arrangements for prison education and training.
Lord Quirk: My Lords, I am grateful for that response. Does the Minister share my view that two weighty documents published this very month, the report on reoffending from the Social Exclusion Unit and the White Paper, Justice for All—in particular Chapter 6—should be required reading for everyone concerned with rehabilitation? Do not those documents provide compelling evidence that more offenders would take up education and training if they were not, in effect, lured into unskilled prison work by the better pay; that those on short sentences are often explicitly discouraged from training courses because it is said that it is not worth the bother; and that financial incentives should be provided after completion of sentence so that former offenders can continue with the courses they began while incarcerated?
Lord Falconer of Thoroton: My Lords, first, I agree with the proposition that the two reports should be required reading for anyone involved in the work of rehabilitation. Secondly, I agree with what was implied by the noble Lord in the second part of his question. We need to look again at how best to take steps with people in prison in order to reduce the risk of reoffending. Those steps should focus in particular on activities that will help them to secure gainful employment when they leave prison. Thirdly, I agree with the noble Lord in his point that simply leaving people without assistance after prison will often increase the chance of reoffending and reduce the chance of preventing it.
Lord Dholakia: My Lords, I refer the Minister to the two reports cited by the noble Lord, Lord Quirk. Does he accept that employment can reduce the rate of reoffending by between one-third and one-half? At present, approximately three in five offenders are reconvicted within two years of leaving prison. The process of dealing with reoffending by former prisoners costs this country over £11 billion a year. Given that, does he consider that prison sentences are not succeeding in turning the majority of offenders away from crime? Would not community penalties backed by education and employment projects be a better alternative for such offenders?
Lord Falconer of Thoroton: My Lords, the best alternative would depend on the facts of a particular case. It is for sentencers to decide on the appropriate sentence in each individual case. However, I agree entirely with the estimated rate of reconviction referred to by the noble Lord. I agree that the cost to this country of reoffending is huge. Lastly, I agree with the proposition that we need to take a long, hard look
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at how we seek to reduce the rate of reoffending. That would not mean no custodial sentences, but we must look at how we help people not to reoffend after they have served their prison sentences. Instead, they should be encouraged into gainful employment.
The Lord Bishop of Rochester: My Lords, will the Minister consider using prisoners as peer group tutors for the teaching of reading, as recommended in the report of the Social Exclusion Unit? That has been tried in at least six prisons and appears to work well.
Lord Falconer of Thoroton: My Lords, the right reverend Prelate is right to refer to what has been said by the Social Exclusion Unit about that issue. We need to look at that proposal and a whole range of other proposals in regard to rehabilitating prisoners and making it less likely that they will reoffend.
Baroness Sharples: My Lords, can the noble and learned Lord tell the House how many writers-in-residence are in prison?
Lord Falconer of Thoroton: My Lords, I have never had an answer to any question asked by the noble Baroness. I do not know how many writers-in-residence are in prison. Perhaps I may write from my residence to the noble Baroness to indicate how many there are.
Baroness Stern: My Lords, can the Minister confirm that the target for education provision for children under school-leaving age who are in prison is 15 hours a week? Can he tell the House in how many cases that target is reached? What are the arrangements for young people who are held in police cells because of prison overcrowding to ensure that their education is continued?
Lord Falconer of Thoroton: My Lords, the noble Baroness will know that education is compulsory for offenders of compulsory school age. Fifteen hours is the target. I cannot help the noble Baroness in relation to the position of young people held in police cells. Perhaps I may write to her on that issue.
Lord Elton: My Lords, does the Minister recognise that the most wonderful education provision in prisons is no good unless prisoners can get to it? Will he undertake that there will be a concentrated effort to ensure that prison officers are available to escort prisoners to education when they are, unfortunately, in prison rather than following the kind of course recommended by the noble Lord, Lord Dholakia?
Lord Falconer of Thoroton: My Lords, I fully accept that access is vital. As I indicated in answer to the Question of the noble Lord, Lord Quirk, the whole issue of education in prison, including funding, is being looked at. That will obviously cover physical access to educational facilities.
Baroness Howe of Idlicote: My Lords, in addition to incentives to attend and complete basic education and

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skills training courses—incentives which I hope will include the possibility of a reduction in the sentence served—does the Minister agree that where such courses genuinely cannot be provided within the prison itself, more use could be made of temporary release orders for suitably assessed prisoners to attend locally provided further education courses?
Lord Falconer of Thoroton: My Lords, I do not want to comment on that particular proposal but I have made it absolutely clear that we wish to improve the quality of education provided, access to education and the range of educational opportunities available. We also want to improve incentives for people in prison to take educational courses. The noble Baroness's specific proposal obviously will be considered in relation to all of those issues.
Lord Addington: My Lords, a very high number of people within the prison population have special educational problems and other social communication problems, which is usually one of the reasons why they failed in education prior to finding themselves in prison. Do the Government undertake a comprehensive series of assessments of such people when they turn up? If the figures are right and one in two of the prison population in young offender units have these problems, then, no matter how much money is pumped in, it may well be wasted.
Lord Falconer of Thoroton: My Lords, I agree with what underlies the question: there is a very wide range of educational needs in prison, many of them at the most basic level. That is why we are widening the targets for basic skills qualifications. That will enable establishments to be much more responsive. As I understand it, the point being made is that the most basic skills are required. We need to provide education for those basic skills. We are looking at how to widen the system to achieve that.
Lord Pilkington of Oxenford: My Lords, I declare an interest in that I spent six years on the Parole Board. I congratulate the Government and their predecessors on the educational programme they give to life prisoners. The educational programme for the remainder of prisoners is lamentable. Can the Minister assure the House that his department will consider giving the remainder of the prison service the kind of attention that life prisoners receive in their educational programme? For example, it is ridiculous that people follow school terms while they are in prison.
Lord Falconer of Thoroton: My Lords, I cannot give the assurance that the noble Lord seeks. All I can say is that we are looking at how we can improve educational provision for prisoners.
Lord Dearing: My Lords, will the Minister note that, unlike education, vocational training is not ring-fenced in prisons and that prison governors can, if they so choose, divert the money to other purposes? Will he
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further note that the provision for construction industry training has been reduced by 50 per cent over the past seven years, in spite of it leading to jobs and there being an acute shortage of skills? Will the Minister look into that?
Lord Falconer of Thoroton: My Lords, as I have indicated, the whole question of the funding of prison education will be looked at.
The Countess of Mar: My Lords, does the noble and learned Lord agree that credit should be given where credit is due? There are some excellent training courses in some prisons. I have been corresponding for four years with a young man who was given a life sentence and is due to be released shortly. He is concerned about what will happen to him when he comes out of prison. He has benefited wonderfully from what he has been taught in prison, but he is worried about what will happen when he comes out.
Lord Falconer of Thoroton: My Lords, I agree with the noble Countess that there are a number of extremely good courses in prison. The problem is—it concerns the Government just as much as it concerns many Members of the House—that they are not sufficiently widespread. There is not enough choice and not enough opportunity for people to get to them.

Zimbabwe: Sanctions
2.56 p.m.
Lord Watson of Richmond Lord Watson of Richmond asked Her Majesty's Government:
What success has been achieved in freezing the personal assets held abroad by Mr Mugabe and other leading members of his administration.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Amos): My Lords, since the imposition of the EU asset freeze on 18th February we have frozen personal assets to the value of £76,000. This is a small sum, but it is not surprising given the advance media publicity before sanctions were imposed. The key point is that Europe's financial markets are now off limits to those on the banned list.
Lord Watson of Richmond: My Lords, I am grateful for that reply. However, the Minister will be aware that additional names have today and over the past 24 hours been added to the original list by the EU. Do not these extra names and the extra measures announced reveal all too painfully that the earlier freezing of assets has entirely failed to deter Mr Mugabe and that much more pressure is now needed? Does the Minister agree that the earlier measures which have led to the freezing of £76,000—a tiny amount given the total assets involved—were clearly too little, too late? They were announced far too long in advance and assets were moved beyond reach by Zidco, ZANU-PF's trading company. Advice was received also from other

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advisers. As Mr Mugabe has not in the least been deterred, and as the situation in Zimbabwe continues to deteriorate, has not the moment clearly come for the international community to consider more direct action?
Baroness Amos: My Lords, I do not agree with the noble Lord. I should perhaps clarify that the General Affairs Council is meeting now and will make a decision this afternoon on whether or not to extend the travel ban list. That decision has not yet been taken.
I do not agree with the noble Lord. It is clear that sanctions have worked. There is a general isolation of the ZANU-PF regime and we have built an international consensus that includes the Commonwealth, the European Union, the United States and others. That will continue to be our strategy. We need to work very closely with our African colleagues on this matter. We shall continue to do so and to keep up the international pressure on the Mugabe regime. But, as I have said in the House a number of times, it is obvious that we are dealing with a regime that cares nothing for its own people given the humanitarian, political and economic crisis that we are seeing.
Baroness Chalker of Wallasey: My Lords, will the Minister consider encouraging the Government and our partners in the EU and the Commonwealth to make greater use of independent investigators to investigate the funds which are held, often in nominee names, in banks and other financial institutions, not only in the developed world but in off-shore banking? This is not easy to do—it is not easy for governments to do—but the use of independent investigators has much helped Nigeria to trace illicitly-taken funds. I believe that this would benefit the ordinary people of Zimbabwe, who urgently need this help.
Baroness Amos: My Lords, I totally agree that the ordinary people of Zimbabwe need this help. They are facing a humanitarian crisis: up to half the population will require food aid by the end of the year. The situation means that farm workers will be thrown off farms, and will be out of a job. As regards independent investigators, I assure the noble Baroness that we are taking all the steps that we can.
Lord Blaker: My Lords, will the Minister confirm that the NePAD agreement contains provisions—as does the new treaty on African union—for human rights observation and good governance by the member countries. It also contains provision for peer pressure to be brought to bear by member countries on defaulters. Is not this the best potential source of pressure on Mr Mugabe? Are the African member countries of those two organisations exerting such pressure?
Baroness Amos: Yes, my Lords, the AU and the NePAD communiqués contain important elements relating to human rights, good governance and peer review. NePAD is an African-led initiative. It is an
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inclusive initiative, not an exclusive one. African leaders have made it clear that, through the peer review process, they want to encourage those countries that are poor performers to improve their governance considerably. Yes, it is up to African leaders to put pressure on other African leaders in relation to these elements.
Lord Avebury: My Lords, will the Minister confirm that, as she indicated in a letter to me, the Zimbabwe authorities were allowed to import armoured cars from Germany for the exclusive use of Mr Mugabe and leading members of his regime? How did it happen that the assets that were used to pay for those expensive cars—at a cost of 250,000 dollars—were not confiscated by the Germans?
Baroness Amos: My Lords, I have no idea where the assets came from to pay for the vehicles. I gave the noble Lord as open an answer as I could. I shall check again, but I do not think that I have any further information that can help him.
Lord Howell of Guildford: My Lords, is the Minister aware that we welcome the indications that the General Affairs Council will agree tougher sanctions this afternoon—although as she rightly says, it has not reached a decision yet? it is belated, but it is better than nothing. Will the sanctions now cover not merely the funds of individuals but also the funds of ZANU-PF and its various subsidiaries held in British and other banks? Has the Minister anything to tell the House about the reports that very substantial land allocations have now been made of seized land to the Libyan authorities and to Colonel Gaddafi?
Baroness Amos: My Lords, as I said, the General Affairs Council is meeting as we speak, so I am unable to give the noble Lord any further information with regard to any possible extension of the travel ban and the assets freeze. As to the question of land allocation to the Libyan authorities, I have no further information. If information becomes available, I shall happily write to the noble Lord.
Lord Elton: My Lords, on more than one occasion, I have heard the noble Baroness explain that, in spite of the travel ban, President Mugabe and some of his henchmen have been able to travel in order to attend international meetings of certain kinds. Should not that right be withdrawn and extended only to alternates attending on their behalf so that the effect of the ban becomes more widely real?
Baroness Amos: My Lords, this is an international agreement. The EU common position on the travel ban states:
"Member states may grant exemptions from these measures where travel is justified on the grounds of attending meetings of international bodies".
This position is not new. It applies in other cases where, for example, heads of state face travel bans in respect of individual countries. It means that countries

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which host international organisations such as the UN are obliged to grant visas to enable individuals to attend such meetings. We do not like it, but that is the position.
Lord Howell of Guildford: My Lords, I should be grateful if the noble Baroness would answer my question about ZANU-PF funds.
Baroness Amos: My Lords, would the noble Lord like to repeat his question?
Lord Howell of Guildford: My Lords, I asked whether the controls on assets held by individuals in Zimbabwe apply also to the funds of ZANU-PF, which are held in British and other overseas banks.
Baroness Amos: My Lords, the current travel ban and assets freeze apply to the 19 named individuals. As I said, I cannot comment on a decision which is currently being taken by the General Affairs Council.
Lord Watson of Richmond: My Lords, will the Minister agree to return to this House at a later stage with more details about the activities of Zidco, the trading arm of ZANU-PF—currently registered, I believe, in Liberia—and with details of advice that has been given in the past to Zidco by companies which have been managed out of Guernsey?
Baroness Amos: My Lords, as the House knows, if I am asked a specific question, I am always prepared to answer it.

Business
Lord Grocott: My Lords, with the leave of the House, immediately following this business statement, my noble friend Lord Bach will make a Statement on the Mull of Kintyre Chinook accident. Following that, my noble friend Lord Whitty will, again with the leave of the House, repeat a Statement that is being made in another place on the foot and mouth disease inquiries.

Chinook ZD576
3.6 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, with permission, I should like make a Statement on the crash of Chinook ZD576 on the Mull of Kintyre.
During a routine flight from Aldergrove to Inverness on 2nd June 1994, all on board—the 25 passengers and four crew—were killed.
What we must remember above all is that this was a tragedy. Twenty-nine families lost loved ones that day. The whole House will once again want to extend sympathy to them. This was also a blow felt
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throughout the Royal Air Force and in the many other areas of the Armed Forces and the public service from which the passengers on board were drawn.
This has been the most extensively examined air crash in the history of British military aviation—not only by aviation and engineering experts but also by at least 10 Ministers from across two governments: from the right honourable Sir Malcolm Rifkind to, most recently, my right honourable friend the Secretary of State for Defence. Ten Ministers have considered the case. Each new Minister has had the advantage of coming to this with an open mind. Every new Minister who has examined the facts of the case has come to the same conclusion.
The senior reviewing officers of the original RAF board of inquiry found the pilots grossly negligent. They concluded that the pilots had flown the aircraft at a consistently high speed at low level, and into poor weather that they had been warned to expect. These facts led the board of inquiry to believe that the only possible conclusion was that this accident was a result of a controlled flight into terrain.
Many have challenged this conclusion. As a result, in April last year, your Lordships set up a Select Committee under the chairmanship of the noble and learned Lord, Lord Jauncey, to consider the justification for the findings by the senior reviewing officers. The Select Committee concluded that the reviewing officers were not justified in their findings that negligence on the part of the pilots "caused the crash".
The Government have now considered the Select Committee's report very carefully indeed. We have thoroughly examined the alternative explanations for the crash that were considered by the committee. We have painstakingly reviewed the complex technical, legal and airmanship issues which the report raises. We have sought further clarification from Boeing on the points made about its original work conducted as part of the RAF board of inquiry in 1994.
In order to leave no question unanswered, we have also asked Boeing to undertake further work to review its original analysis, including a full FADEC simulation. Those familiar with this case will know that the FADEC system, by controlling the fuel supply, maintains approximately 100 per cent rotor speed in all conditions and matches engine torque between the two engines on the aircraft. It has been argued that the failure of this system was a cause of the accident.
Our deliberations are now complete, and I am arranging to place copies of our response, together with copies of the further work by Boeing, in the Library of this House as well as in the Library of the other place. A number of theories have been put forward to explain the cause of this accident. Each depends on a particular interpretation of the evidence. That is why at the outset I want to try to set out those facts as best I can that are not in dispute.
We know that, as before every routine flight, the pilots received meteorological information, in this case warning them of poor weather conditions in the

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vicinity of the Mull. They took this into account in planning their route, from Aldergrove to the Mull lighthouse, then on to Corran near Fort William, then up the Great Glen to Fort George, near Inverness.
We know that the first "way-point" entered on the aircraft's navigation computer was very close to the lighthouse on the western tip of the Mull. This way-point was the position where they needed to change or adjust their course to head towards Corran. Taking into account the weather conditions, they planned to fly their route at low-level under "visual flight rules", which means that they needed to maintain at least 1,000 metres of visibility. If during the flight they were unable to do so, then under the rules they would be required either to turn away from the poor conditions or to climb to a safe altitude of 1,000 feet above the height of any known obstacles. They would then have flown under "instrument flight rules"—which would require them to fly with sole reference to their cockpit instruments.
We know that the aircraft took off from RAF Aldergrove at 17.42 hours. We know—from an exchange between the crew and air traffic control—that, at just after 17.46 hours, the aircraft was seven nautical miles from the Aldergrove radio beacon. A number of witnesses reported the aircraft flying low as it headed for the coast. These sightings are consistent with a high-speed, low-level transit towards the Mull along the planned track.
We know—from the data in the SuperTANS navigation system on board every Chinook—that the aircraft was 0.81 nautical miles from the lighthouse when the pilots took the steps necessary to enter the second way—point89 miles away, at Corran—into the computer. Given their training and experience, the pilots would not have performed this task if they had been experiencing any significant difficulty in handling the aircraft. The Select Committee accepted that it was highly unlikely that the pilots would have entered the way-point change if they had thought they were not in control of their aircraft.
We know—from all the eye witnesses on the Mull—that the weather there was generally foggy and very bad. The lighthouse keeper estimated visibility to be 15 to 20 metres at most.
We know—from the power down recording in the Super TANS system—that the time of initial impact was 17.59 and 36 seconds; giving a total journey time of just under 18 minutes. From these facts we can calculate that the ground speed of the aircraft, from the air traffic control fix to impact, averaged 158 knots. This shows that the pilots had selected a high cruising speed for their crossing to the Mull.
We know that the ground speed at impact was at least 147 knots, from the evidence on the aircraft's instruments at the crash site, and corroborated by data extracted from the GPS system and the navigation computer.
We know that the aircraft hit the ground at a height of 810 feet above sea level. All the evidence clearly points to the aircraft having flared—or "pulled up" in layman's terms; with its nose upward at an angle of 30
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degrees—in the final few seconds of flight. This is shown not only by the physical evidence at the crash site, in particular the alignment of the fuselage; it is also shown by the fact that the collective control, which controls power, was set at or near full travel at impact, with the cyclic control, which controls pitch and elevation, at 25 per cent aft and 23 per cent left of neutral, all indicating a demand for high power and nose-up attitude in a last desperate attempt to pull away. This evidence at the crash site also indicates that the aircraft was almost certainly responding properly to its controls, at least in the final seconds before impact.
These then are the facts which have not been seriously challenged by anyone. What remains at issue is what happened in the last 20 or so seconds of the flight from the point at which the pilots entered the way-point change into the navigation computer until moments before impact when they pulled hard up in a clear attempt to avoid hitting the ground. Various theories have been put forward and we have considered each in turn. They are examined in detail in our fuller response which has been placed in both Libraries.
One hypothesis suggests that, because of the low cloud, the pilots had slowed down for the way-point change, intending to turn left to hug the coast towards the way-point at Corran while remaining at low level. The Select Committee has accepted that the aircraft was performing satisfactorily up to and including the way-point change. The Committee suggests that, having performed the required deceleration successfully, some catastrophic failure occurred in the last 20 or more seconds of flight. This failure caused the aircraft to accelerate out of control so that it flew at high speed into the Mull, with the pilots unable to control the aircraft, at least until the final few seconds.
Was it the crew's intention to slow down significantly for the way-point change? Boeing's analysis shows that, given a normal rate of acceleration, it would not have been possible to achieve the speed conditions for the final flare if the ground speed was below 80 knots at the way-point change. If the aircraft had slowed to around 80 knots at that point, then an even higher average cruising ground speed from the air traffic control fix to the way-point change would have been necessary. And, crucially, the aircraft would have begun to decelerate about one mile prior to the way-point change, and in the process to reduce power considerably, adopting a nose-up attitude for a considerable period. Such a manoeuvre is not consistent with the evidence.
In addition, the further analysis from Boeing shows that, given a normal rate of acceleration, it would not have been possible to accelerate from below 80 knots and achieve the speed conditions necessary to be consistent with the final flare just before impact.
Even if the aircraft had performed the manoeuvres necessary to slow to 80 knots at the way-point change, what plausible explanations could account for the pilots not being able to execute the turn and cause the aircraft to accelerate to the known speed at impact?

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What sort of incident could have cleared in time to allow the pilots to perform the final flare in the seconds just before impact?
It has been suggested that a control jam of some sort could have occurred. For that to have happened, the aircraft would first have had to have been rotated nose down to an accelerating attitude, the power set to full, and the controls "frozen" to such an extent that neither a heading change, nor a climb, nor a speed change was possible. Moreover, this condition would have had to have remained fixed throughout the significant period required to achieve the acceleration. To achieve these conditions either simultaneous multiple failures would have had to have occurred to the pitch of the aircraft and have frozen the controls, or the pilots would have had voluntarily to conduct at least some of the extraordinary control combinations needed.
The Select Committee also explored the possibility that the "thrust balance spring attachment bracket" and other inserts detached before impact, as some of these flying control components were found to be detached at the crash site. But because the controls are hydraulically powered such a fault would result in a change to the "feel" of the controls and would have been detected by the pilots. Moreover, the aircraft would still be controllable. It is not credible that this could have caused the accident. In any event, the report from the Air Accidents Investigation Branch indicated that the brackets were likely to have become detached during the post-accident break up of the aircraft.
Despite suggestions from other commentators, the Select Committee accepted that the FADEC system and the trials of the Chinook Mark 2 that had been suspended at Boscombe Down had no bearing on this accident. In fact all the available evidence indicates that the engines were working normally up to the point of impact. The committee was also satisfied that the E5 software fault, which has also been the subject of much media speculation, had no relevance to this accident.
We have examined in detail all the alternative hypotheses put to the committee by witnesses. The question is, when taken in the context of the whole flight, are they—or any one of them—plausible against what was a strict standard of proof needed at that time before a finding of negligence could be made against deceased aircrew?
As the committee observes, the standard of proof of "absolutely no doubt whatsoever" involves an even higher standard of proof than that applicable in criminal cases. I am, of course, aware that four of the five members of the Select Committee are distinguished lawyers.
It follows from this strict standard of proof that if there is another plausible explanation for what took place other than the one accepted by the board of inquiry, its conclusion cannot be allowed to stand.
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The reviewing officers in this case were required to be in no doubt whatsoever that the pilots' negligence was a cause (although not necessarily the sole cause) of the accident.
No investigation into a serious accident can ever hope to answer every question with absolute certainty. Negligence can itself be the cause of an accident or it can be one of a number of factors. The reviewing officers were charged with considering all of the evidence as a whole; they were entitled to call on their own knowledge and experience of military flying, and take proper recognition of the very high standard of airmanship that is required of RAF pilots.
It follows that if the senior reviewing officers were left with no "honest" doubt that the pilots were negligent, and that negligence was a causative factor in what happened, they would have failed in their duty if they had not found the pilots negligent. It would have been wrong of the reviewing officers to avoid such a finding on the basis of a hypothesis for which there was no plausible evidence.
The senior reviewing officers' finding of negligence was not dependent upon whether the pilots could see the Mull at the time of the way-point change. We can deduce that at some point the aircraft entered cloud—which the crew had been warned to expect—well below safety altitude. The issue is whether at the time they did so the aircraft was fully under the control of the pilots. There is no other plausible explanation for the accident. The only realistic explanation therefore is that found by the reviewing officers of the board of inquiry.
As they approached land, the pilots would have been aware that their visibility was about to reduce significantly. Had they been flying with the minimum visibility allowed for Visual Flight Rules, by the way-point change they would have seen the landmass of the Mull and should have recognised their perilous position. They should have taken prompt action by flying higher or turning away. The finding of negligence is therefore based on the fact that they failed to take such avoiding action.
This is a very sensitive and emotive case. I recognise that some people would like us to have reached a different conclusion from that of the reviewing officers. Some former Ministers have since changed their minds about their original interpretation of the facts.
However, we require senior military officers to make decisions on the facts at the time, applying their judgment as professional airmen against the high standard of airmanship to which the Royal Air Force adheres.
We have therefore reviewed the material put forward by the committee with the very greatest care. We have probed the alternative hypotheses rigorously to see if there is any other plausible explanation that fits with the facts. And we have agonised over whether there was some way that we could exonerate the pilots posthumously. But on the basis of all the evidence, I am unable to do so.

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Apportioning blame for such a terrible accident to men who lost their lives in it was not an easy task for those responsible. Reviewing the circumstances of the case has been one of the hardest duties I have been asked to perform as a Minister.
None the less, where lives have been lost, we must be willing to examine the facts as carefully and dispassionately as possible, for the sake of all those involved. This we have done.
I know that this response to the Select Committee's report will be unwelcome to some. And, as I have consistently said before, should new evidence come to light the Secretary of State would be prepared to look at it again. Indeed, it was precisely the possibility of new evidence that led the Government to commission the further work from Boeing.
I hope that this Statement, and the supporting detailed analysis which is being published today, will assist the House in understanding the reasons why we have not been able to support the conclusions of the latest report into this tragic accident.
3.27 p.m.
Lord Vivian: My Lords, we on these Benches are grateful to the Minister for repeating the long and detailed Statement on the tragic crash of the Chinook Helicopter ZD 576, but we very much regret and are disappointed that Her Majesty's Government are unable to provide time for a detailed debate by your Lordships before the Summer Recess. Once again, we on these Benches extend our deepest sympathy to all the families who suffered such tragic loss of life.
I have no intention of covering the facts and detail of the case in this debate. As your Lordships have heard, there are many technical facts in the Statement which need to be analysed carefully. I believe that the right and proper place to do so is when we eventually discuss Her Majesty's Government's response in full debate. However, it may be timely to remind your Lordships that the House of Lords Select Committee which was set up was tasked to consider the justification of those reviewing the conclusions. I repeat that it was tasked to consider the justification of those reviewing the conclusions of the Royal Air Force Board of Inquiry that both pilots of the Chinook helicopter were negligent. The Select Committee was satisfied that on the evidence brought before it and against the standard of "absolutely no doubt whatsoever" as required by the Royal Air Force Board of Inquiry rules, the air marshals were not justified in finding that negligence on the part of the pilots caused the crash.
How does the Ministry of Defence justify disagreeing with three other investigations into this matter? The Air Accidents Investigation Branch did not conclude that the pilots had been negligent. The fatal accident inquiry concluded that it had not been established to its satisfaction, and on the balance of probabilities, that the cause of the accident was the decision by the crew. The House of Commons Public Accounts Committee found that the verdict of the Royal Air Force Board of Inquiry was unsustainable and should be set aside.
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I should like to ask the Minister a few questions. When will a full debate be held to discuss Her Majesty's Government's response to your Lordships' Select Committee report? Will the Minister confirm that the evidence relied upon by the committee in coming to its conclusion was not limited to the evidence that was freshly before it and was not available to the air marshals but that there was other evidence, which it identifies, which led it to the conclusion that it reached? Why does the Ministry of Defence now accept that "no honest doubt" is a sufficient reason to support a finding of gross negligence when the Royal Air Force Board of Inquiry rules require that there should be "no doubt whatsoever" to support a finding of gross negligence? I should be grateful if the Minister will answer those questions in his reply.
3.31 p.m.
Lord Roper: My Lords, from these Benches, we thank the Minister for making this Statement in this House in advance of his noble friend in another place. It was, of course, a response to a Select Committee of this House.
There will no doubt be considerable disappointment among those noble Lords who served on the Select Committee that the Government have been unable to accept the fully argued conclusions in their report earlier this year. We on these Benches wish to join the Minister and the noble Lord, Lord Vivian, in expressing our considerable sympathy with all the families of those who lost their lives so tragically on this occasion. We can well understand the serious feelings which the fathers of the pilots still hold. That is why this matter is one of continuing concern on these Benches as elsewhere.
It is a detailed analysis and I understand that further material is to be made available to us in the Library. We are grateful to the Minister and the Secretary of State for having spent so much time and care in reviewing the material and attempting to provide the House with a detailed analysis of each of the alternative hypotheses. As the noble Lord, Lord Vivian, said, it is too early to analyse that response in detail today. In the Statement, the Minister drew attention to the committee's observation that the standard of proof was "absolutely no doubt whatsoever". A little later he says that no investigation into a serious accident can ever hope to answer every question with absolute certainty. That seems to suggest that the task facing such a board is almost impossible and that in the future the whole procedure will need to be re-examined.
We believe that noble Lords will wish to return to this subject after they have had a chance to study in detail the reply and remarks made today. I am pleased to see the Captain of the Gentlemen-at-Arms on the Bench opposite. I hope that he and the usual channels will be able to arrange a full debate in this House as soon as possible after we return in October. We can then express in detail the views of the House not only on the important report of your Lordships' Select Committee but also the reply today from the Minister.
3.34 p.m.
Lord Bach: My Lords, first, I thank the noble Lord, Lord Vivian, and the noble Lord, Lord Roper, for their measured remarks today. I am grateful for what they said. Perhaps I may say to the noble Lord, Lord Vivian, that we are not repeating a Statement made in another place. Another place will follow us on this occasion—the noble Lord, Lord Roper, mentioned the reason—because a Select Committee of this House has reported. It is only right that a reply is made in this House, whether before or contemporaneously with a Statement in another place.
I understand that the usual channels will decide the date of a debate. That there will be a debate in the autumn has already been stated in this House in clear terms, and I confirm that today from the Dispatch Box. Perhaps I may point out that it is fairly unusual for a Statement to be made at the same time as a response from the Government to a Select Committee's report. The reason that we chose to do so is that we consider it a matter rightly of great import to this House, and a matter with which the House has been engaged for some time. Whatever noble Lords feel about the merits or demerits of what I have said, I hope that the House will accept that we are attempting to show the House some respect in making the Statement. Likewise, the Secretary of State is doing the same today in another place.
The noble Lord, Lord Vivian, raised the point about "no honest doubt". We have taken advice from outside government, as one would expect a government department to do in these instances. I make this point also in answer to the noble Lord, Lord Roper. The phrase "no doubt whatsoever" was a very high standard of proof. But it is, or was meant to be, achievable. We are satisfied that this standard was reached in this case as, after detailed examination, every other hypothesis was implausible and the only conclusion that the reviewing officers could reach, therefore, was a controlled flight into terrain.
As regards the details of the response and the extra evidence being made available, I agree with both noble Lords—it is, of course, a matter for noble Lords—that it is best to leave that until our important debate which will take place on another occasion.
3.36 p.m.
Lord Craig of Radley: My Lords, I welcome the thrust of the Government's Statement in response to the Select Committee report. The Government have not been persuaded to do a U-turn on the consistent support which has been given for the board of inquiry findings by Ministers of both political parties in both Houses at the Dispatch Box.
Noble Lords may agree that there will be much important detail in the Government's response to the Select Committee and I believe that it will be inappropriate to make snap responses or judgments until the Government's views have been studied. I welcome the opportunity for a debate in October when there will have been time for such study and reflection.
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The Minister mentioned the importance of the airmanship aspect of this tragedy. Can he say why he feels that this is such a critical factor in the professional judgment of the board of inquiry and its findings? Does he agree that the attacks in the media and elsewhere outside Parliament on the integrity and professional judgment of the two air marshals are now without foundation and should not be continued?
Lord Bach: My Lords, I am grateful for the noble and gallant Lord's remarks. I agree with him that the details announced can best be discussed during the debate.
The necessary level of airmanship was important to the rules as they then were. I cite the guide to the consideration of human failings which was attached to the regulations. It states that the duty to take care varies according to the operation being performed and the duty to take a very high degree of care is rightly imposed upon a pilot flying an aircraft or responsible for its maintenance or control. In such circumstances what might be trivial in other fields may, when associated with aircraft operations, amount to negligence. That amounts to severe criticism, but it was the standard that was set.
Lord Chalfont: My Lords, as the noble Lord, Lord Vivian, said, it is a matter of great regret that this Statement has been made and the response received, leaving no time for a full debate in your Lordships' House. The Minister has promised a debate in the autumn when we shall go into further details of this whole affair.
The Statement is no surprise as it seems to underline the prevalent doctrine of infallibility in the Ministry of Defence. But the conclusion is astonishing. The ministry states that it has studied the report of the House of Lords Select Committee and cannot accept its opinion. That seems to indicate that the Secretary of State for Defence prefers the opinion of two air marshals which, despite what has been said, differed from the original board of inquiry. The Secretary of State prefers to accept their opinion on a verdict of manslaughter. I am not surprised that the noble Lord appears to wince at the word "manslaughter". If someone is found guilty of gross negligence, which leads to the death of 27 people, including himself, manslaughter is a fairly mild word to use. But that is what those young, dead pilots have been found guilty of.
It is odd that that opinion should be preferred over the judgment of a House of Lords Select Committee consisting mainly of legally qualified Peers, presided over by a distinguished former Lord of Appeal, which had all the evidence before it that the air marshals had. The Minister has said nothing new in his Statement today. All that evidence was before the House of Lords Select Committee too. The Ministry of Defence constantly asks for new evidence before it reconsiders its opinion. But, I repeat, the Ministry of Defence has said nothing new since the House of Lords Select Committee reached its conclusion.

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This judgment flies in the face of the fatal accident inquiry, which was also held before a distinguished judge in Scotland, the conclusion of the Public Accounts Committee in the other place and the views of the flight operations group of the Royal Aeronautical Society. It also flies in the face of the facts of the matter. To a large extent, many of the statements made to the air marshals were found by the Select Committee to be assumptions, not facts.
What is behind this conclusion? Why is the Ministry of Defence not prepared to accept the view of legally and aeronautically qualified people outside the Ministry of Defence? It prefers instead to rely on the judgment of two senior air force officers who, in their review of the board of inquiry, ignored findings which showed no evidence of human failing on the part of anyone involved in the matter. We shall now have to wait until the autumn to ask and receive answers to many questions that will go much further than the cause of the accident. Many such questions need to be asked about why this conclusion has been reached.
I shall not pose any of those questions now, and I do not expect answers today. There is, however, one question that I should like to put to the Minister. I hope that the House can be given an answer today; it deserves one. Are the Secretary of State and the noble Lord the Minister satisfied beyond any possible doubt whatever that there was gross negligence in this case? I ask not for air staff briefings or official advice, but for the views of the Ministers concerned. Ministers are responsible to Parliament, although that sometimes seems to be forgotten. Are they clear in their minds that there is no possible doubt whatever about the gross negligence of those two young men? We await the debate in the autumn with interest.
If we cannot be assured that the Ministers concerned are themselves satisfied beyond all possible doubt about the finding of gross negligence, I shall be suggesting to your Lordships' House and a wider public that perhaps it would be correct to ignore the response of the Ministry of Defence and that the findings of the House of Lords Select Committee should be regarded as exoneration of the two pilots. In effect, that would be a refusal to accept the view of the Ministry of Defence and the verdict of the two air marshals.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, before my noble friend replies, perhaps I should remind your Lordships that we have only 20 minutes in total to discuss these matters.
Lord Bach: My Lords, I shall come straight to the question asked by the noble Lord, Lord Chalfont. Of course we have received advice and are persuaded on these matters. Therefore, the answer to his question is yes. I mentioned specifically in my Statement that that applies to all Ministers who have come to the Ministry of Defence since those tragic events took place. I can give the answer readily today. It is yes.
The response took so long to be published because the Select Committee's report deserved careful study. It rightly took a number of months to be prepared. It
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was a very detailed report. We felt that the number of opinions that it expressed required further work, especially with regard to the original flight modelling conducted by Boeing, of which there was some criticism in the body of the report. Inevitably such work takes time, but it was important that the best possible advice was obtained to inform our response to the House. Of course it would have been preferable to publish it sooner and debate the issues before the Summer Recess, but we published it as soon as we could and are—unusually—making Statements about it in both Houses.
Baroness Ramsay of Cartvale: My Lords, I join the noble and gallant Lord, Lord Craig of Radley, in welcoming the detailed Statement made by the Minister. It is an issue of enormous pain for the families of the pilots and all the families of the victims of the crash. I really do not know why the noble Earl, Lord Onslow, is making remarks from a sedentary position.
I remember the shock on hearing of the crash when I was abroad and not being able to find out from the initial media reports how many friends I might have had on board the Chinook. I have followed in great detail what has transpired since then in relation to the crash. For all of the bereaved, the wounds have been opened again and again.
I have a couple of questions for my noble friend—that is all that one can do when responding to a Statement. Does my noble friend agree that the absolutely indisputable facts are that the Chinook was in a wrong and dangerous position, which in the event resulted in the crash; that the MoD has looked at all possible explanations why the Chinook was in the position; and that, all other possibilities having been eliminated, responsibility has to lie with the pilots?
I understand very well the desire for a debate in this House; of course there will be one. I put it to noble Lords that perhaps the time is approaching when a line should be drawn and the wounds of bereavement allowed to start to heal.
Lord Bach: My Lords, I thank my noble friend for her comments and I shall try to answer her questions. Yes, it is right that the finding of the air marshals is based on the fact that the Chinook, which was obviously still under pilot control, found itself in a highly dangerous position. In a nutshell, that is precisely the case.
Lord Ackner: My Lords—
Lord Tebbit: My Lords—
Lord Hooson: My Lords, as a member of the Select Committee—
Lord Williams of Mostyn: My Lords, we should hear first from the noble Lord, Lord Tebbit, and then from the noble Lord, Lord Hooson.
Lord Tebbit: My Lords, what was the hypothesis that persuaded the Minister that two highly

23
experienced pilots, judged suitable to fly this most important group of people, should suddenly take leave of their senses and commit an error of airmanship so basic that if a student pilot were to attempt to do it, his instructor would stop him and probably fail him on the spot?
Secondly, did the Minister read the recent newspaper reports that the Ministry of Defence is inclined to argue that the failures of the SA-80 rifle are because the Marines who are trained to use it could not do so properly?
Lord Bach: My Lords, I do not intend to attempt to answer the second question, which has absolutely nothing to do with today's very serious Statement. However, the noble Lord's first question is entirely proper. The answer is that even the most distinguished airmen—these were fine pilots—can make serious errors. They do not always, thank goodness, end up in the kind of tragedy that we are discussing today, eight years later.
I shall explain briefly how I came to the view that I expressed earlier to the noble Lord, Lord Chalfont. When the pilots were some 700 or 800 yards away from the way-point change, they were about one kilometre away from the coast. If they were below cloud, could see one kilometre ahead and were flying legally (they were under visual flight rules), it was negligent—here I rely to some extent on the script of the Select Committee's hearings, which I have read carefully, as I know the noble Lord will have done—that they did not start such a turn when they first made visual contact with the cliff. However, they flew on for another eight or nine seconds before the way-point change. That is the first alternative. The only other alternative is that at some point earlier than one kilometre away from the cliff, they went into cloud, either voluntarily or involuntarily. In those conditions, they should without doubt have taken immediate action to outclimb the Mull of Kintyre by carrying out an emergency low-level abort and, once established in that climb, turning away to the left. They did neither. I remind the noble Lord that it is clear that at the time of the way-point change, the aircraft was fully serviceable.
Lord Hooson: My Lords, as a member of the Select Committee, I have only one question for the Minister. As I understood him, he said that the Government have taken outside advice. Was the advice legal or technical? Before we have a debate in this House on the subject, will he identify from whom that advice came?
Lord Bach: My Lords, I can tell the noble Lord that the advice was from outside government and that it was both technical—from Boeing—and legal. I shall have to consider carefully whether to tell the noble Lord at this stage who supplied that legal advice. He and the House can take it from me that it was from an extremely distinguished Queen's Counsel.
I take this opportunity—I have not done so previously—to thank the noble Lord and all the others who played their part in the committee for the
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incredibly long hours and the huge amount of work that they put in on this very vexed subject. Although the Select Committee will be unhappy—if not worse—at our conclusions, the Government are genuinely grateful for what they did.
Lord Burnham: My Lords, I find—
Lord Ackner: My Lords—
Lord Williams of Mostyn: My Lords, very briefly, it is the turn of the Cross Benches.
Lord Ackner: My Lords, I forbear making any comment on the report. I confine myself to simple questions. First, the Minister accepts, I understand, that the air marshals had only very limited authority to find the airmen guilty. That was because the relevant words are "absolutely no doubt whatsoever". My central questions are these. Nowhere in their judgments did the air marshals recognise that vital limitation on the lawful exercise of that power. If the Minister does not agree, perhaps he will identify where it is so stated. Finally, nowhere in their judgment did the air marshals expressly or implicitly claim that they had "absolutely no doubt whatsoever" that the deceased airmen—or one of them—Were guilty of negligence. If the Minister does not agree, will he please identify what was the relevant statement in this regard?
Lord Bach: My Lords, of course the standard was very high indeed, but it was, as I said earlier, achievable. Indeed, it had been achieved on previous occasions. I am afraid that I do not have immediately available before me the answers to the questions of the noble and learned Lord, and I shall not waste the House's time looking them up. I promise to write to him in very short order.

Foot and Mouth Disease
3.59 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Environment, Food and Rural Affairs. I begin by pointing out that, in parts, the Statement differs from the text available in the Printed Paper Office, largely as regards quotations, although the substance remains. The Statement is as follows:
"Following last week's publication by the Royal Society of its independent examination, chaired by Sir Brian Follett, of how we might prevent and combat future animal disease epidemics in the UK, today we publish the independent report of Dr Iain Anderson, identifying the lessons he believes can be learnt from the most recent of these—last year's outbreak of foot and mouth disease. The Government are grateful to Dr Anderson for the

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huge amount of work and effort he has put in and to all the 800 to 900 individuals and organisations that gave him evidence.
"Foot and mouth disease is a devastating and highly infectious animal disease, feared and loathed across the world because of its impact and virulence. In Britain alone, the experiences of the 1967 outbreak are a remembered nightmare in many rural communities. But what hit us in February 2001 was, as Dr Anderson notes, due to a,
'rare set of circumstances [which] had already determined that this would be one of the worst epidemics of FMD the modern world has ever seen. Numbers alone cannot capture the sense of what unfolded. The great epidemic of 2001 left an indelible mark on communities, businesses and people from all walks of life'.
"The Government are determined to learn the lessons of what happened in 2001. That is why we so quickly set up an inquiry process with three strands, each of them independent. That decision means that within six months of the outbreak ending, we already have the scientific review, the Policy Commission report charting the way forward for the industry and, now, the report of lessons we need to learn.
"Dr Anderson's report, which concentrates primarily on the early part of the outbreak, is a sombre and thoughtful document, for the most part measured in its tone and content, although unquestionably grave in its import. What is crucial to future policy is that he makes a large number of strong recommendations, most, if not all, of which I believe we shall he able to accept. Indeed, many suggest actions that the Government, while trying not to prejudge his report, have begun to address.
"Separately, in his comment and observations he draws on the views and evidence put before him. Here, there is certainly scope for different interpretation—even for disagreement. However, he asks in his introduction whether, as a first step,
'DEFRA [can] simply…admit that government made mistakes during its handling of the crisis and that all involved are determined to learn from these mistakes'.
I can and I do. The House will know that I have always acknowledged that, in the desperate circumstances faced not only by the farming community but by my department and its officials, as by our departmental and ministerial predecessors, mistakes were bound to have been made.
"Dr Anderson shows complete understanding and sympathy for the terrible experience of those in the field. But he also shows recognition of the dilemma of the centre, especially where there were clear or substantial deficiencies in management information. He suggests that for the first few weeks government did not realise the seriousness of the measures which would be needed to control the outbreak. I accept, although it is with hindsight, that that is so. But he also shows how often the action taken was entirely consistent with the information and advice then available.
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"But if we are to learn the lessons from those dreadful months, we need most to consider whether, while, as I say, there are bound to have been mistakes, there were structural defects.
"Dr Anderson identifies what he regards as mistakes of strategy. I think it is right to say that many, if not all of these, we as government already acknowledge. Where there may be room for disagreement is on the question of how much of that was evident only, or at least primarily, with hindsight. As Dr Anderson himself says in the report on the issue of an immediate national ban on animal movements:
'Even today the State Veterinary Service believes it would not have had the justification or the support immediately to introduce widespread restrictions'.
"Throughout the report, the reader returns again and again to what was known and to what was without precedent and consequently unanticipated. Dr Anderson says, for example:
'The disease could have been present at Burnside Farm for weeks, but it went unreported, despite the requirement of farmers to report suspected cases of notifiable diseases'.
We now know, in fact, that there was virus present on at least 57 farms in 16 counties on the day that the first case was confirmed—20th February.
"As to the unknown origin of the first case, both inquiries stress the importance of effective import controls in order to prevent exotic infectious diseases entering the country. We have set in hand a wide-ranging programme of action against the risks posed by what have, I believe, been illegal imports of meat and animal products. But as both reports acknowledge, it will never be possible to reduce that risk to zero, so the necessary measures must be in place to limit the risks that, if disease enters the country, it will reach livestock and then subsequently spread.
"Both reports also highlight the importance of contingency planning. Dr Anderson examines the pre-existing contingency plan, which was followed, but he demonstrates that, although meeting the international standards then expected—the European Commission judged the UK's readiness for disease outbreak as among the best in Europe—we can see with hindsight its deficiencies. But that is an admission that make with hindsight. The European Commission is on record as having said recently:
'It cannot be reasonably expected from any Member State to design a contingency plan for the event of an epidemic causing more outbreaks within months than the 10 years' estimate for the whole Community'.
"On all these issues the analysis in the report is detailed. It shows that, in Dr Anderson's own words—words echoed, among others, by Commissioner Byrne—the outbreak in Britain in 2001 was of a kind unanticipated in any country in the world.
"Dr Anderson makes some trenchant criticisms to which I shall return, but he also deals comprehensively with the myriad conspiracy theories in circulation then and since. He does not

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just dismiss them; he investigates and then dispels them. One in particular—the charge that the handling of the crisis was driven by concern over the general election—Iain Anderson explicitly rejects. He said,
'we found no evidence to support such a suggestion'.
Indeed, officials at all levels and in many locations are adamant that they were never exposed to any pressure other than the need to control a disease in the best possible way.
"While awaiting these reports, we have already published a draft interim contingency plan and have invited stakeholders and operational partners to comment. We shall now review it comprehensively in the light of the recommendations of the inquiries for regular updating, involvement of stakeholders and rehearsals, all of which the Government accept.
"Dr Anderson calls for a mechanism to assess potential domestic civil threats and steps to improve our capacity to handle an emergency of national proportions. We have set up the Civil Contingencies Secretariat in the Cabinet Office, reporting to a Cabinet Committee chaired by my right honourable friend the Home Secretary, which is intended to do just that through horizon scanning, an assessment of capability and through work with departments facing disruptive challenges on how to prevent or manage crises. He also identifies the need to establish 'trigger points', where issues move to a new phase of crisis handling. Again, we agree.
"Also, both reports make important recommendations about how the Government should improve their ability to respond effectively in the event of a disease outbreak. Again, I can say that we support the thrust of these recommendations, especially where they relate to the need for high-quality management information systems.
"The Army is praised, rightly, for the role it played in helping to deal with the enormous logistical challenge—one it has identified as of larger dimensions logistically than the Gulf War. It did, indeed, do a remarkable job. I believe that, had we had better information systems in place, it would have been called into action earlier. But, as Dr Anderson demonstrates, that is not so in the context, as is so often claimed, of the Northumberland report, but when disposal options were failing to keep pace with slaughter.
"In addition, knowing what we now know, we would, on any future occasion, work on the presumption that a national ban on livestock movements would apply when the first FMD case was confirmed. But, because of the early silent spread of the disease in this outbreak, it is important not to assume that it would ever have been easy to check. Dr Anderson himself said that,
'even a perfectly implemented cull of infected premises within 24 hours of discovery would not, on its own, have controlled that epidemic until the disease itself had reduced the density of susceptible farms to such an extent that the epidemic ended naturally'.
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"We would not intend, in the future, to permit local authorities to impose a widespread ban on the closure of footpaths. That, too, is a judgment made with the benefit of hindsight, and the House will know that it is a contested judgment. Some local authorities clung to a blanket ban long after government had encouraged its lifting.
"Both inquiries have called for a strategic approach to animal health and disease control policies, and endorsed the call in the report of the Policy Commission on Food and Farming, chaired by Sir Don Curry, for a comprehensive animal health strategy. My department will be opening discussions with industry and other interests on the content and coverage of such a strategy in the near future. It would need to deal with the protection of public health, animal disease prevention control, surveillance, animal identification, animal welfare and emergency preparedness.
"One other key issue which draws much comment is the contentious issue of vaccination, on which both inquiries made recommendations. There are two specific recommendations which we can immediately accept: that, as in 2001, we should ensure that the option of emergency vaccination forms part of any future strategy for the control of foot and mouth disease; and that any emergency vaccination policy should in future not be 'vaccinate to kill' but 'vaccinate to live'. But that does not require action from government alone. It requires acceptance that meat and meat products from vaccinated animals enter the food chain normally.
"Quite rightly, the inquiry reports address most of their recommendations to government. But they both also recognise that the farming industry shares responsibility for minimising disease risks. Dr Anderson concludes that the Government can do only so much to prevent a recurrence of the disease. The farming industry has a crucial role to play, particularly with regard to biosecurity.
"This reminder is particularly pertinent after last month's foot and mouth disease scare in the Midlands. It is not enough for government to have the right approach or proper rules to mitigate disease risk. Everyone in the industry must follow those rules and they must be properly enforced. In that recent episode, existing pig identification rules were not followed. Had the tests confirmed the disease, the effort to track down the source of the infection would have been severely hampered. This episode strengthens our resolve to continue to work with the livestock industry to establish better livestock identification.
"But both this episode and the report lend weight to the call by Sir Don Curry's Policy Commission for farm assurance schemes, owned and operated by the industry itself, to reward good farm management practice in biosecurity and other areas. The Government endorse this principle.
"While the Government will give full consideration to all the lessons in the two reports, there are two areas in which we can and will move

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forward more quickly. The emphasis in the reports on the roles which might be played by emergency vaccination and pre-emptive culling underlines the importance of the passage of the Animal Health Bill, which my noble friend the Parliamentary Under-Secretary of State will be taking to Committee stage next week. The Bill contains powers which could be vital to the timely interventions for which the inquiries call.
"Secondly, the Government need to take an early decision on the animal movement rules to apply from the late summer, and in particular on the 20-day standstill. We will consult quickly with industry stakeholders in the next week or two, in the light of what the two reports say, on interim rules to apply from late August.
"This is a serious report into an outbreak of foot and mouth disease which was devastating for many parts of our country. I want to make one more quote from Dr Anderson. He said:
'Even had everything been done perfectly by all those concerned to tackle the disease, the country would have had a major epidemic with massive consequences. Second, many farmers, local people and government officials made heroic efforts to fight the disease and limits its effects. Through their efforts it was finally overcome and eradicated after 221 days, one day less than the epidemic in 1967–68'.
This inquiry does make many important recommendations. It accepts that everyone involved was doing their level best to deal with the outbreak. It makes criticisms which are accepted. It makes recommendations on which we will act. Above all, it fulfils its remit and gives us the basis on which to learn lessons, and learn lessons we will".
My Lords, that concludes the Statement. I apologise for the fact that the quotations were not in the original version.
4.14 p.m.
Baroness Byford: My Lords, I thank the Minister for repeating the Statement that was made in another place earlier today and for the facility of being able to look at the report at MAFF this morning. These three wide-ranging reports confirm that the Government's handling of the foot and mouth disease crisis, particularly at its onset, was, at best, inept—so inept that the outbreak was much deeper and lasted much longer than it perhaps may have done. At this stage, I remind the House of my family's farming interests.
The Royal Society makes a number of recommendations relating to its concern about the lack of research. Will the Minister indicate whether new money will be available for funding research into, for example, alternative methods of disease control, alternative methods of cleansing, and particularly vaccination? Does the Minister envisage the thorough testing and approval of vaccines and the concept of "vaccinate to live"—the particularly welcome comment at the end of the report—for animals to live afterwards and then to cull? Will the Government make use of some of the overseas vaccines that are available?
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The Anderson report is scathing about the lack of funding at Pirbright. Do the Government's future contingency plans include an intention to expand the important role of Pirbright in having acceptable vaccines and the testing facilities to which I referred earlier? The question of vaccination arose at all stages as various Statements were made to the House. Noble Lords will want further clarification of that matter in addition to what the Minister has said.
The Northumberland report on 1967–68 showed that there were 24 almost simultaneous outbreaks at the beginning of that outbreak. Will the Minister indicate why the UK contingency plan this time limited it to a scenario of only 10 farms? I do not understand why it should be lessened. Who made that decision, and why was it made?
On decisions, will the Minister explain it took 25 days before COBRA was called in; why it took nearly 31 days to call in the Army, when in fact the noble Baroness, Lady Hayman, who is in her place, and I raised the issue of the Army being called in on 8th March; and why the scientific group was not established until 35 days after the onset of the disease? Those are disturbing figures. Will the Minister explain why, according to Anderson, scientific decisions were taken outside of COBRA by the Prime Minister and the Minister of Agriculture in the middle of the outbreak?
The Anderson report is also outspoken on the failures of joined-up government—members of various departments did not talk to each other—and the failure of the IT system has also been highlighted. In the Statement that has just been repeated. Anderson said that substantial deficiencies in management systems added to the difficulties.
I turn to the question of meat imports, which I divide into two categories, as does Anderson. Anderson accepts that the disease was not caused by the legal importation of meat, but was much more likely to have been caused by the illegal importation of meat, in respect of which, as noble Lords will know, we have called many times for a tightening up of the rules. Will the Minister therefore say why it has taken almost a year for the Government to put into action some extra contingency plans to stop the import of illegal meat into our country?
Throughout the course of this disease, we have unfortunately experienced a breakdown of trust not only between the farming communities but also the rural communities and the general public. The devastation directly affected farmers. It also affected those farmers who could not move their animals but who were not directly affected themselves. It affected rural business, and particularly tourism. I should therefore like to ask the Minister what proposals the Government have to ensure that whatever plans they put forward appreciate the very close interlink between the health of our livestock and the health of the countryside and rural business and tourism.

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I turn to the Animal Health Bill, which we shall debate later this week. I again quote from Anderson:
"The powers available in the Animal Health Act 1981 should be re-examined".
That is what we should be doing. Will the Minister assure us that the timetable for the current Animal Health Bill will allow such re-examination to be full and thorough? That is particularly important in the light of the research shortcomings, laid bare by the Follett report.
The Anderson report also shows that in the 1967 to 1968 FMD outbreak, 75 per cent of costs went in compensation to farmers. But in the 2001 outbreak that proportion was only 40 per cent. Can the Minister indicate how the Government will control that 60 per cent of costs in any future—heaven forbid—outbreak? Perhaps he may explain where the 60 per cent has gone.
I do not wish to shoot arrows. The report reflects that mistakes were made. I am grateful that the Statement and the Government accept that. However, we want to learn by those mistakes and to see where we can go.
All the reports reflect inadequate action at the start. Had there been more robust action the disease would not have spread as much. I call on the Minister and the Government to have a full debate when we return early in October. It is impossible in the short space of time left before the recess to do anything like justice to these three important reports. Indeed, it will not surprise the Minister when I say that however good these reports are, we should have had a full public inquiry.
The Government have expressed their regrets for some of the mistakes made and are determined to learn. Indeed, the industry should learn in order to find better ways forward. But I ask that we have regular updating; involvement of the stakeholders; and rehearsals of contingency plans. I understand that on a regular basis a review will be brought before Parliament.
It is impossible to pay tribute to all those who worked hard under difficult circumstances and to express sufficiently our sorrow and support for those who were devastated by the outbreak. The noble Lord, at the end of the Statement, referred to the 20-day standstill, which is still in being. As he knows, there is great concern in the industry about that being in effect long term. Can the noble Lord tell us more about the Government's position on the current 20-day standstill? I thank him for repeating the Statement. I look forward to his being able to assure the House that we shall have a full debate when we return in October.
4.23 p.m.
Lord Greaves: My Lords, I, too, thank the Minister for repeating the Statement and for the courtesy of allowing me to see the report this morning. I associate these Benches with a great deal of what the noble Baroness, Lady Byford, said. I shall attempt not to repeat too much of it.
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These three reports are an important stage in getting the farming industry and the countryside back to something like normal—or what normal will be in the future—after the devastation of the foot and mouth outbreak. They also will provide useful background for our discussions in the next few days and after the recess when the Animal Health Bill is in Committee.
The immediate issue raised in the Anderson report is the question of the 20-day standstill, to which the noble Baroness referred. There is a great feeling in the industry that not only would it be devastating to keep a 20-day standstill for a substantial period of time and through the autumn of this year, but that it is also almost unenforceable, placing farmers in a position where they would feel the need to break it on a large scale. It is important, therefore, that the Government find a compromise, which is accepted on all sides, which works, and which will do the job we want it to do. So we very much welcome the commitment in the Statement to a speedy review.
There are some interesting statistics in various parts of the report. On page 27, for example, it reveals that the State Veterinary Service has been run down. In 1979 to 1980 it employed 597 vets and in 1995 it employed 300. In that period it was believed—under the then Conservative government—that the state ought not to be doing things that other people could do them and that self-regulation was the way forward. It was also a time when efficiency savings were much in vogue. That is a good example of those two dogmas failing us badly. The reduced MAFF presence in the regions during that period and the cuts in research—not least at Pirbright—are other examples that should provide us with food for thought for policy in the future. I, too, ask the Government what they are doing to put more resources into those and similar areas.
The two sectors devastated more than any others by foot and mouth were farming and tourism. Tourism throughout the outbreak got a worse deal than farming. At least farmers whose animals were culled got compensation, although many others did not. On page 133 of the report, there are interesting statistics providing the sectoral economic effect of FMD 2001 to 2005. It suggests that for agricultural producers there will be a net loss of £710,000. For tourism, it is £5 billion. That indicates the huge impact on the whole of the varied tourist industry. It is absolutely vital that any future outbreak is not allowed to impact in that way on such an important industry, not just in terms of this country's economy but for the whole way in which the countryside now works.
The report's recommendations seem rather weak in the whole area of tourism and the rural economy in general. However, I very much welcome the statement from the Minister that in a future outbreak they would not be looking to impose any blanket ban on the closure of footpaths. There are all kinds of things which occurred during this outbreak which must never happen again. I cannot say that foot and mouth disease must never happen again. It is impossible to guarantee that. I mean the way that images of funeral pyres were beamed around the world; the way in which large areas of countryside were turned into war zones

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where it was living hell, not just for the affected farmers but for many other people; the human misery and tragedy, the suicides that took place—and the many other people who must have been on the brink of suicide—and the huge mistakes made right at the beginning in declaring that the countryside was closed.
I believe that vaccination and what the Follett report refers to as "preventive vaccination to live" is a fundamental key to the future. It is a fundamental key in getting the trust of farmers as well as the rest of society. The recommendations set out in the Royal Society report are vital. Again I very much welcome the statement by the Government that preventive vaccination to live would form a key part of future strategy. The Follett report points out that the whole area of vaccination needs a great deal more research before it becomes a practical strategy. It suggests a timescale of 18 months. I ask the Government whether this will be an absolute top priority.
The publication of these reports is a turning point. It is a chance to lance the wounds and to start a healing process in the countryside based on developing a consensus for the future. But I believe the Government must go further than merely admitting that mistakes were made. It would help enormously if they could apologise for those mistakes in a fulsome and genuine kind of way, saying that they are sorry for the farmers who suffered; that they are sorry for the tourist industry; sorry for everything else that happened in the countryside last year; and sorry for their contribution to what happened. Have the Government the guts and the sense to face the countryside and say, "Yes, we didn't just make mistakes in hindsight, but we are deeply sorry for them. We want to work with you to stop them happening again"?
Lord Whitty: My Lords, I thank noble Lords for their comments. If I may, I shall grind quickly through the specific points made and then turn to the general points.
On research, we shall clearly have to take seriously the substantial recommendations of the Royal Society report. How we fund research is a matter for the Department for Environment, Food and Rural Affairs, the institutes and the Biotechnology and Biological Sciences Research Council. Of course, there is also the question of whether that should be performed on a European scale, because we face the same problems across Europe and must take a consistent approach.
The noble Baroness, Lady Byford, asked why the contingency plan was based on 10 farms or 10 outbreaks. The reason for that was that for some years the European Union requirements for the contingency plan were for the most likely scenario. In the light of evidence, that was judged the most likely scenario. That is what the plan was based on, and it was clearly inadequate to deal with the massive outbreak that actually occurred. The key finding is that, before we knew it was there, the disease had entered 57 farms.
The noble Baroness asked several questions about the machinery and why there were delays in involving the military, COBRA and so on. We shall clearly have
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to consider those areas carefully. Co-ordination of government is an important issue, which is one reason why we have now set up a Civil Contingencies Committee. When we face future crises, whether or not involving animal disease, we ought to be able to pull together the resources of government more rapidly. At the time, of course, it was not immediately evident that the disease was of such crisis proportions. Nevertheless, there are lessons to be learnt.
On imports, the noble Baroness will have heard me say many times that there is more to be done. An action plan is in place and we are tightening up both on smuggling through passenger imports and on potential illegal imports through commercial channels. The reports, together with the risk assessment that we are completing, will give us more of a basis to act on that front.
The noble Baroness and the noble Lord, Lord Greaves, both referred to the involvement of the tourist industry and others, including the farming industry and government. It is important that future contingency plans not only take them into account but involve other elements of rural society and the rural economy in the rehearsals for and understanding of the plan.
The noble Baroness also asked about two immediate issues to which I referred at the end of the Statement: the Animal Health Bill and the 20-day standstill period. Clearly, the reports may have implications for the Animal Health Bill. That is one reason for the timetable on which we eventually reached consensus, which gives us the summer to think about the matter. There may also be other, wider implications for animal health legislation that may have to be dealt with more broadly. We shall need to consider that in the light of the findings and recommendations of the reports. I do not expect that that will seriously affect the timetable, but we will need to consider that after the summer. No doubt, noble Lords will also have amendments to propose and points to make about that.
The noble Baroness raised the question of the proportion of costs, which is an interesting point. One of the differences between the 1967 outbreak and the latest one was, first, that more animals were killed but, perhaps more importantly, that the costs of disposal and the need for disposal effectively to be undertaken by the Government made those non-compensation costs much higher. There is an issue about cost efficiency, about which both these reports and the National Audit Office report make points, and, frankly, about who will bear those risks in future, which the industry and the Government need to discuss. But that is the main change: the non-disposal costs—the cleansing and disinfection costs—which were borne by the Government separate from compensation, were substantially higher than in 1967.
The noble Lord, Lord Greaves, and the noble Baroness referred to the 20-day standstill period. Clearly, that is the issue that most concerns the industry and the department at present. As I have told the industry, our veterinary and scientific advice is that we should maintain the 20-day standstill, or something

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like it. Indeed, the Anderson report states clearly that it should remain until an effective and thorough risk assessment is adopted. As I said in the Statement, we will continue to discuss with the livestock industry during the next few days what, if any, changes can be made to that regime in the immediate future and to consider the long-term regime that may be appropriate following that thorough risk assessment.
The noble Lord, Lord Greaves, referred to the number of people employed by the State Veterinary Service. The figures are slightly misleading. Far be it from me to defend the previous Conservative government, but the numbers at the outset include all of the managerial, structural and research grades, some of which were removed from the State Veterinary Service when the regions were rationalised. So there has been a significant reduction in the management structure of the SVS; but the number of field veterinarians has not altered that much—certainly during the past 10 years—when they are counted on the same basis. Although there has been a reduction in the total size of the service over the long term, the reduction in the field service during the past 10 years has been much smaller. Of course, the field service is the key element in spotting and immediately dealing with the disease.
I echo the views of both the noble Lord and the noble Baroness on the need to establish trust and understanding. There has been a serious breakdown of trust and the Government recognise our responsibility in that respect. If we are to use a "vaccinate to live" rather than a "vaccinate to kill" policy, understanding must be established in the farming industry and elsewhere both domestically and internationally of how the vaccinated meat and meat products would move into the normal food chain. That was one difficulty during the epidemic.
Trust also needs to be established in a wider sense; as I said, the Government accept our responsibility in that regard. Mistakes were of many different sorts. In retrospect and with hindsight, some strategic mistakes were made, most of which we have acknowledged. In what was a massive logistical exercise, mistakes were made in implementing the policy. Those are identified in the reports.
How many strategic mistakes were made at the centre because of the information then available—given the constraints on that identified in the report—is a different matter. I do not accept the challenge of the noble Lord, Lord Greaves, to make a general apology in that respect. Things occurred that we regret, but I do not believe that my predecessors, senior or local departmental officials are culpable in any individual or collective sense for what happened. We were all faced with an unprecedented situation—in effect, a wartime situation. Mistakes are made in war, however effective or otherwise the strategic direction. That is the case here. The main thing now is not to go blaming each other but to continue to build that basis of trust in the countryside that has been sadly missing in the wake of the disease.
Lord Jopling: My Lords, while thanking the noble Lord for repeating the Statement, I refer him back to his quotation at its end from the report, which states:
"Even had everything been done perfectly by all those concerned to tackle the disease, the country would have had a major epidemic with massive consequences".
Although no one would argue with that, Dr Anderson must have made a broad assessment of how many animals would have had to be slaughtered if everything had been done perfectly. Will the Minister tell us—in broad terms; clearly we cannot be precise—how many extra animals were slaughtered in that dreadful affair as a consequence of the unpreparedness, delay and incompetence to which he has admitted today?
Lord Whitty: My Lords, without accepting the terminology of the noble Lord, Lord Jopling, there are different forms of effect on the disease. There is no answer to his question. The lack of preparedness in certain respects relates to a wrong presumption of what was the most likely scenario. Clearly, had we made a different presumption, the level of preparedness and the speed with which we contained the disease would have been greater. However, the report states that, given where we were, it would have been more sensible to engage in a wider pre-emptive cull, in which case, per outbreak, more animals would have been slaughtered in order to contain the disease more rapidly. Similarly, given the fact that there were at least 57 seedings before we even knew of the existence of the disease, as well as others developing as we were trying to catch up with the spread, the balance between slaughtering more to contain the disease at the beginning and the total number involved will never be able to be calculated.
Viscount Bledisloe: My Lords, I welcome the fact that the Minister recognises that mistakes were made, though I am not interested in whether they were blameworthy or whether one can say, with the benefit of hindsight, that any mistakes were made. I also welcome the fact that the noble Lord accepts most of the recommendations, and agrees that there are lessons to be learned. However, in the light of that, I find it totally incomprehensible that he is intending to press on with the relevant part of the Animal Health Bill on the very first day of our October sittings.
Is the noble Lord suggesting that there is nothing contained in these reports that would alter the contents of those parts of the Animal Health Bill? In view of these recommendations, does he intend to deluge the House with a whole raft of amendments to bring the legislation up to date? Alternatively, is he leaving it to the Opposition, or to Back-Benchers, to amend his Bill and thereby bring it into line with the recommendations?
Bearing in mind all that is to be learnt from these reports, how does the Minister consider that the Bill can possibly proceed until we have had a debate on these reports, and he has brought forward either a re-drafted Bill or amendments to it so as to bring it in line with the recommendations that the Government

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accept? If we do not follow that route, the entire postponement of the Bill's passage until such reports were made will have been a waste of time, and a farce.
Lord Whitty: My Lords, as I said earlier in response to the points raised by the noble Baroness, Lady Byford, we shall need to consider what is in these reports that may require amendment to the proposed Animal Health Bill. No doubt other noble Lords will be doing likewise during the Committee and subsequent stages of the legislation. There are two items that are already in the Animal Health Bill that meet some of the anxieties expressed by Dr Anderson. In particular, he is concerned that the contiguous cull was not carried out rapidly enough. Of course, there are additional powers in the Bill that are intended to speed up that process.
In addition to the provisions in the Animal Health Bill, there is a need to make provision for pre-emptive culls. That is also, in part, covered by firebreak cullings in similar provisions, as well as being covered by this legislation. Moreover, it would be even more important for those provisions to be there were we to adopt a substantial policy of vaccination. Powers to impose both a contiguous vaccination and firebreak vaccination would be a consequence of us adopting vaccination in the way that both reports suggest we should now consider. Therefore, the Animal Health Bill already contains some powers that are fairly controversial in this House, but which meet some of Dr Anderson's anxieties. However, there may be others.
Lord Hoyle: My Lords, does my noble friend the Minister agree that hindsight is a weapon that everyone can take advantage of after the event has taken place, but that, nevertheless, lessons should be drawn from such experience, and consequently acted upon? One observation that must be made on all this is the number of cases that developed—I believe that my noble friend mentioned 57—before the disease was reported. Is there not something that the farming community can learn from that; namely, that surveillance is necessary and early reporting essential?
Lord Whitty: My Lords, I absolutely agree with both those observations. Clearly, hindsight must not be used to suggest that decisions taken at the time based on the information available were unreasonable or inequitable. However, it is not only important for government to learn such lessons; industry must do likewise. The bulk of industry is responsible for observing biosecurity and for reporting any sign of disease. Regrettably, the incident mentioned in the Statement reaffirmed that fact. The rules are sometimes not being observed, and the process of reporting is not being undertaken. As we now know, the almost certain origin of the disease—the farm where this occurred—noble Lords, and others, cannot fail but to be horrified at the conditions at that farm and the trading process that followed. There are lessons to be learnt by both government and industry.
The Earl of Onslow: My Lords, I completely agree with the noble Lord, Lord Hoyle, which may come as
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both a deep and a bad shock to him. Hindsight is a bad instrument. However, is the Minister aware that the use of the word "hindsight" on this occasion is totally irrelevant. Some of us were advocating vaccination as early as April, and the Prime Minister accepted the need for vaccination when he met the Soil Association, the National Trust, and four other bodies; but he then said "I've got to ask the farmers". Can the noble Lord imagine my noble friend Lady Thatcher taking that view once she had made up her mind? The answer is, no.
Vaccination was tried in Uruguay at the same time, where 10 million animals were vaccinated. As a result, they had to slaughter only 10,000 and the disease was contained and eradicated. The disease in that country started after our outbreak, but it finished before our outbreak was brought to a halt. That is not hindsight. It is all very well for the Minister to say that there is nothing to apologise for; there jolly well is something to apologise for. After all, the Prime Minister apologised for the famine in Ireland for which he had absolutely no responsibility, but he cannot apologise—or get his act together—as regards the foot and mouth disease, which was prolonged, exacerbated and made worse by the fatuous incompetence of the Treasury Bench.
Lord Whitty: My Lords, I strongly resent the noble Earl's last few remarks. Indeed, his comments are not in the spirit within which the rest of this discussion has taken place. I believe that we all have lessons to learn; and we intend to do so. Many wrongdoings occurred during the course of that period, some on the part of government and others on the part of industry. We all need to recognise that fact.
As regards vaccination, I can confirm that we did consider vaccination at various points during the outbreak. However, it was vaccination for very specific purposes. The events to which the noble Earl referred related to cattle only and were in respect of Cumbria only. Once the disease had broken out, we would not have had the logistical resources or the availability of vaccine to enable us to carry out vaccination on a scale equivalent to the Uruguayan experience. It was not a feasible option as an alternative to the cull. The Netherlands was the only country to follow that route. It very efficiently used that process as a supportive mechanism, but did so on a "vaccinate to kill" rather than a "vaccinate to live" basis.
It is important that any future strategy not only has the involvement of the farmers and the rest of the community; it must also have the understanding of the farmers and the rest of the community. Therefore, although the methods of the noble Baroness, Lady Thatcher, may be appealing to the noble Earl, I believe that both industry and government together need, at least broadly, to agree the future strategy, without conflict, if disease—God help us!—ever breaks out again.
Lord Williamson of Horton: My Lords, I refer to the Royal Society report, which I consider contains the

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most important analysis and recommendations for the future in the history of the control of foot and mouth disease. Obviously, the question now is how to prevent another disaster occurring. Does the Minister agree that it is significant that the report shows important recent advances in vaccines, and that it is now possible to distinguish vaccinated from non-vaccinated animals? Does he also agree that it is an error to suppose that a carrier animal is automatically infectious; on the contrary, the carrier animal is not likely to be a significant risk factor in spreading and maintaining foot and mouth disease? Does he further agree that the report positively recommends that emergency vaccination should be seen as a major tool of first resort? Does the noble Lord consider those three points significant? I do.
I hope that we shall not spend too much time on apportioning blame for the past—indeed, I shall not—but rather that we concentrate on planning for the future. It would be a serious blunder if the Follett report is not acted upon, and acted upon fast.
Lord Whitty: My Lords, I accept that advances have been made over the course of the past year in some of the technology and in the provision of vaccine, some of which still has to be validated internationally in order for it to be fully effective. It is certainly true to say that some advances have been made that were not available—or would not have been accepted—had we wished to deploy them during the course of this epidemic.
It is also important that, in preparation, we use vaccination—emergency vaccination and firebreak vaccination—as a tool. At this stage, it is not possible to say that vaccination entirely replaces the culling system; we will not be at that stage for many years. However, vaccination ought to be one of the immediately available tools. Vaccination and its consequences must be understood in advance by the farming community, the rest of the food chain and the international regulators. Without that, vaccination will not be viable, but I believe that we can overcome those difficulties.
Lord Soulsby of Swaffham Prior: My Lords, the outbreak of foot and mouth disease was such as no other country has experienced. I can assure the Minister that the three reports into the handling of the outbreak and the lessons to be learnt will be read by people in many countries who will admire how we handled the problem. However, mistakes were made, including the lack of attention to the need for sufficient manpower to survey the health status of flocks and herds in this country; the dwindling level of research into highly infectious diseases; and the lack of control on imports, about which some of us have spoken. All those matters are mentioned in the three reports, each of which contains an enormous amount of information that requires careful study, as we consider the way ahead.
We did not know what sort of outbreak we faced. If it had been the sort of outbreak we experienced 20 years or more ago—a single outbreak—it would have
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been acceptable and satisfactory to react as we did at that time. However, the outbreak got away from us, and it was several weeks before we knew precisely what we were dealing with. Therein lies the major problem, given the shortage of manpower and the absence of the tools we now have. We must face the fact: some of the technology that could be used now to differentiate between vaccinated animals and infected animals and the new vaccines have come on line only in past months. We did not have them a year ago when we could have used them to great advantage for pen-side diagnosis, as mentioned on the radio this morning. We did not have that sort of test, and we cannot criticise people for trying to diagnose foot and mouth disease using the old clinical methods.
The Government must convince the general public that there is nothing wrong with meat from vaccinated animals: we eat it every day. All our chickens, sheep, pigs and cattle are vaccinated one way or another. It is ludicrous that there should be any revulsion against eating meat from animals vaccinated against foot and mouth disease. We import meat from countries that use vaccines against foot and mouth disease. The Government must make a major effort to convince the general public that such meat is safe and edible.
Lord Whitty: My Lords, I thank the noble Lord, Lord Soulsby of Swaffham Prior, for his remarks about what must now be done and about the quality of the reports. The reports show that there has been a thorough examination, and the three areas that the noble Lord identified will be addressed.
The noble Lord's final point—about the public view of vaccinated meat—is also important. I came to the matter halfway through, and it always seemed illogical to me. One of the reasons we did not pursue a policy of vaccination was that there was a view among consumers, in the wholesale and retail trade and internationally, that there should be a difference. There is a difference internationally between FMD-free status and FMD-with-vaccination-free status. That issue must be addressed domestically and internationally.
Lord Carter: My Lords, as several noble Lords have said, the three reports are extremely important. Can my noble friend deal, once and for all, with the point made by the noble Baroness, Lady Byford, about the absence of a public inquiry? Three reports, containing nearly 500 pages of closely argued scientific, logistical and policy argument, have been produced in six months. How long would a public inquiry have taken? What information would it have produced that is not already in those comprehensive reports?
The Royal Society report makes it clear that there was no alternative to the rapid culling of diseased animals and of those thought likely to have been infected. It supports the 24-hour and 48-hour policy, although it is hard to achieve in practice. To the noble Earl, Lord Onslow, I say that the Anderson report says that, on vaccination, the science is not yet clear enough. How long will it take to get agreed EU and international protocols in place for emergency

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vaccination? The National Audit Office report and the Anderson report refer to the widespread seeding of the virus before it was reported. Can my noble friend confirm that the failure to report the 57 outbreaks in 16 counties was the main factor in the speed and severity of the outbreak?
Can I also ask my noble friend to clarify, in the light of what we now know, what powers are required? It is an important point. It appears that the Government do not have sufficient powers to deal with another outbreak. What will happen if—please God it does not happen—there is another outbreak before the Animal Health Bill becomes law? I hope that we can get to the Committee stage when we return. The Anderson report was a little unclear about the issue; the Minister's Statement was clearer. Can the Minister confirm that the powers in the Bill and any other powers that the Government may wish to introduce will be sufficient to deal with another outbreak?
Lord Whitty: My Lords, to answer my noble friend's last point, I shall expand on what I said earlier. The powers in the Bill now address some of the problems identified by Anderson. We will need to take careful note of other comments about the powers and how they are exercised or inhibited before we can say whether they are adequate. As part of the overall animal health strategy recommended by both reports, there must be a wholesale consideration of animal health legislation in general. Subject to that consideration, the Animal Health Bill would go some way to meeting the requirements.
My noble friend referred to undetected spread. I was not suggesting that 57 people failed to report; I said that, by the time that the outbreak was reported, 57 cases were already seeded, not all of which would have been apparent at that stage. That meant that we were running behind the disease until, eventually, it reached its peak. That was the major strategic disadvantage that we faced. The outbreak was unlike most other epidemics, including the Dutch outbreak. There, they identified the fact that there was a problem immediately and dealt with it quickly and strategically, but not without culling large numbers of animals.
I have covered the points about vaccination. It is true that vaccination could not be carried out unless there were domestic and international agreement on the implications. In introducing its report, the Royal Society said that we ought to be able to reach some agreement at the level of the European Union and the Office International des Epizooties by the end of 2003. That seems optimistic and is the minimum time that we would need to get an international understanding that vaccinated animals could go into the national and international food chain.
Turning to the question of a public inquiry, I refrained from responding to the noble Baroness earlier lest I descended into party politics. However, whatever one may have thought of a public inquiry at the time, we now have three very authoritative reports on the table—or even four if we include the Curry/National Audit Office report. As the noble Lord, Lord Soulsby, remarked, those reports will be read
42
throughout the world and will become the authoritative account of how the epidemic began, how overcoming it was conducted and how we should approach any future outbreak.
To be frank, I do not think that a public inquiry could have reached this stage in this length of time. The Phillips inquiry lasted for three years, and we know that other inquiries have lasted even longer. Moreover, I shall repeat a point that I have made before in this House. People were probably more frank in their discussions with Dr Anderson and the Royal Society than they would have been had they had to give evidence in the quasi-judicial procedure through which the public inquiry process would have put them. For that reason, I think that the good doctor and the Royal Society have reached conclusions on the basis of the experiences of many people who have aired their views and understanding of the situation. I am not sure that those views would have emerged in a public inquiry, even after three years. In that respect at least, the Government are vindicated in their decision on how to review the conduct of the disease.
Now we must move on and learn the lesson—in the Government, in industry and in society as a whole.

Commonwealth Bill
Brought from the Commons; read a first time, and to be printed.
Private Hire Vehicles (Carriage of Guide Dogs Etc) Bill
Brought from the Commons; read a first time, and to be printed.
Divorce (Religious Marriages) Bill
Read a third time, and passed.
Proceeds of Crime Bill
5.2 p.m.
Proceeds of Crime Bill

  MOTIONS AND AMENDMENTS MOVED ON CONSIDERATION OF COMMONS REASONS
  [The page and line refer to HL Bill 57 as first printed for the Lords]
  Lord Falconer of Thoroton: My Lords, I beg to move that the Commons amendments and reasons be now considered.
  Moved, That the Commons amendments and reasons be now considered—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 4
  4 Clause 6, page 32, at end insert "unless it is of the opinion that there are exceptional circumstances which justify its not doing so"
  The Commons disagreed to the amendment for the following Reason—
  4A Because it is not appropriate for the court to have a discretion to decide not to initiate proceedings for confiscation orders.
  Lord Falconer of Thoroton Lord Falconer of Thoroton rose to move, That the House do not insist on their Amendment No. 4 to which the Commons have disagreed for their reason numbered 4A, but do agree Amendments Nos. 4B to 4K in lieu thereof.
  4B. Clause 75, page 48, line 4 at end insert—
  "(3A) But an offence does not satisfy the test in subsection (2)(d) or (e) unless the defendant obtains relevant benefit of not less than £5000.(3B) Relevant benefit for the purposes of subsection (2)(d) is—

  (a) benefit from conduct which constitutes the offence,

  (b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

  (c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

  (3C) Relevant benefit for the purposes of subsection (2)(e) is—

  (a) benefit from conduct which constitutes the offence;

  (b) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

  (3D) The Secretary of State may. by order vary the amount for the time being specified in subsection (3A)."
  4C Clause 341, page 200, line 3, at end insert—
  "(5) There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—

  (a) the benefit likely to accrue to the investigation if the material is obtained;

  (b) the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it"

  4D Clause 348, page 203, line 18, after "sought," insert—
  "(aa) it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained,"
  4E Page 203, line 31, after "(8)," insert—
  "(aa) there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained,"
  4F Clause 353, page 206, line 41, at end insert—
  "(4) There must be reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained."
  4G Clause 360, page 211, line 19, at end insert—
  "(6) In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation obtained."
  4H Clause 366, page 213, line 44, at end insert—
  "(6) In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained."
  4J Clause 451, Page 260, line 25, after "section" insert "75(3D)"
  4K Page 260, line 36, after "section" insert "75(3D)"
  The noble and learned Lord said: My Lords, I beg to move that the House do not insist on their Amendment No. 4 to which the Commons have disagreed for their reason numbered 4A, but do agree Amendments Nos. 4B to 4K in lieu thereof. With these amendments I shall also speak to Lords Amendments Nos. 43 and 73 to which the Commons have disagreed for their reasons numbered 43A and 73A, and our proposed Amendments Nos. 43B to 43K inclusive and 73B to 73D in lieu thereof.
  These amendments return us to themes that will be quite familiar to noble Lords. Let me begin by discussing the question of mandatory versus discretionary confiscation procedures. In explaining our reasons for opposing the amendments, I should make it clear at the outset that the Government are not wedded to mandatory procedures. As was pointed out more than once during the recent debate in another place, the Bill contains many instances where discretion is granted to the courts.
  For example, the court has a discretion as to whether it makes a restraint or receivership order. Our preference is to retain where possible the traditional discretion of the courts. However, where it is necessary for good reason to fetter that discretion in the public interest, we shall have no hesitation in doing so. I think it fair to add that we are not the first government to have enunciated such a principle.
  The difficulty with the amendments, as we see it, is that they would reverse a steady historical development in favour of more mandatory confiscation procedures. This development took place over a number of statutes, beginning with the Drug Trafficking Offences Act 1986 and ending with the Proceeds of Crime Act 1995. The main reason for increasingly mandatory confiscation procedures was the importance which successive governments and oppositions have placed on the recovery of criminal proceeds as a weapon against serious and acquisitive crime, coupled with advice from the enforcement authorities that the courts were not exercising their discretionary powers as rigorously as they should have done.
  Those concerns are as valid today as ever. The Bill comes against a background where that confiscation is still underused and where the Government have had to create a right of appeal for the prosecutor and director to deal with courts that refuse to apply the procedures at all, despite their mandatory terms. So, on this occasion, there is good reason for making an exception to the general rule in favour of the court's discretion.
  We accepted that the amendments are drafted in terms of exceptional cases, but we believe that courts will be tempted to expand the definition of "exceptional circumstances" to encompass cases that

  45
  are not truly exceptional. They would encourage different practices across the jurisdiction, there would be a decline in the benefit confiscated and their ultimate effect would be to discredit the legislation, not only with the public but also with the criminal.
  As we made clear when the point was previously discussed in this House, we are firmly opposed on principle to the notion that there can be exceptional reasons not to make a confiscation order. Recovery of benefit from crime can never be wrong. I must oppose the amendments to maintain the basic integrity of the Bill. For the reasons that I have given, I would ask the House not to insist upon its Amendments Nos. 4, 43 and 73, to which the Commons have disagreed.
  Perhaps I may turn to the government amendments in lieu. During the long passage of the Bill the Government have on many occasions shown themselves ready and willing to listen to what the Opposition have been telling us. We continue to take the view that it is not appropriate for the court to have a discretion when it comes to making a confiscation order. However, we have considered the court's role in the earlier, investigatory stages before the prosecutor asks for a confiscation hearing. We think that the court has an important role at this stage in ensuring that inappropriate investigations are not mounted. That will ensure that cases that should not be brought before the case even gets to the stage of a confiscation hearing.
  That brings me to a related question which has also exercised the Opposition both here and in another place. It was objected that one of the requirements for the granting of the investigatory powers and warrants in Part 8 should be that it was in the public interest for the court to grant the order or warrant. We had previously reached the conclusion that, while a public interest test applied, it was not necessary to make that clear on the face of the Bill. Having reconsidered the point, we recognise that there are still some concerns. Accordingly we have prepared Amendments Nos. 4C to 4H inclusive and 43C to 43H which will put the matter beyond doubt.
  Part 8 of the Bill would now state explicitly that the court will have the discretion to make investigatory orders only where it would be in the public interest to do so. I hope, therefore, that noble Lords will join with me in approving Amendments Nos. 4C to 4H and 43C to 43H inclusive.
  In considering the court's discretion, we have also accepted that there is some strength to the argument, which has been presented under various guises throughout the passage of the Bill, that some of the criminal lifestyle tests potentially expose a defendant convicted of very trivial offences to severe consequences. We accept that, as the Bill currently stands, it would be possible for the court to apply assumptions where an offender is convicted of one summary offence lasting for more than six months, or four summary offences of any description from which only a very small amount of benefit has been derived.
  The same is true where an offender is convicted of an offence from which he has benefited and has two other past convictions of the same kind. The benefit could be
  46
  trivial, but a confiscation order could still be made. As we pointed out, it is unthinkable that the director or the prosecutor would mount a confiscation proceeding in an obviously inappropriate case or that the court would apply the assumptions on its own motion in such cases. We are willing to concede, however, that some formal fetter to the authorities' powers will help to make it clear that confiscation orders will not be applied for unfairly against those offenders who have a criminal lifestyle as it is understood by the Bill.
  In order to meet the concerns that have been expressed, but at the same time preserve the integrity of confiscation as a mandatory procedure, we have tabled Amendments Nos. 4B, 43B and 73B to the criminal lifestyle scheme, which will have the following effect. The scheme will apply to those convicted of one of more scheduled offences exactly as at present. Instead of the present arrangements, however, we are now proposing that the court will be able to decide that the defendant satisfies one of the other criminal lifestyle tests only where the total benefit from the triggering offences and any other offences taken into account for sentencing exceeds £5,000.
  That will ensure that an offender who is not convicted of one of the special scheduled offences can be identified as a criminal lifestyle offender only if he has benefited significantly from offences of which he has been convicted, or which are taken into consideration by the court in determining sentence.
  Amendments Nos. 4J and 4K, 43J and 43K and 73C and 73D include a power for the Secretary of State to change the £5,000 threshold by order. This power will be used both to take account of inflation and to respond to different patterns and trends of offending. It is subject to the affirmative resolution procedure because we accept that Parliament should have full opportunity to scrutinise any changes to the criminal lifestyle tests.
  The change will meet concerns that have been expressed in both Houses about the breadth of the provisions and I hope therefore that the Opposition will be prepared to lend it their support and that they will join me in not insisting upon the amendments I discussed earlier.
  These amendments will also strengthen the Bill. I hope that your Lordships will join me in approving them. I commend them to the House.
  Moved, That the House do not insist on their Amendment No. 4, to which the Commons have disagreed for their reason numbered 4A, but do agree Amendments Nos. 4B to 4K in lieu thereof.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 9
  9 After clause 10, insert the following new Clause—
  "Compensation of creditors

  (1) Any person who was a creditor of the defendant at the time when the confiscation order was made may, within one year of the date of the order, make an application to the court for compensation.

  47

  (2) The court may require the enforcement authority to pay compensation to the applicant if it is satisfied that—

  (a) as a result of the making of the order the defendant is wholly or in part unable to repay the debt;

  (b) the debt was incurred for full consideration; and

  (c) at the time the debt was incurred the applicant had no reason to believe that a confiscation order could be made against the defendant."

  The Commons disagreed to this amendment for the following reason—
  9A Because it would involve a charge on public funds, and the Commons do not offer any further Reason trusting that this Reason may be deemed sufficient.
  Lord Falconer of Thoroton: My Lords, I beg to move that the House do not insist on their Amendment No. 9 to which the Commons have disagreed for their reason numbered 9A. I shall speak also to Amendments Nos. 47, 78 and 166, to which the Commons have disagreed for their reasons numbered 47A, 78A and 166A.
  As specified in their reasons, Amendments Nos. 9, 47, 78 and 166 involve privilege in that they would involve a charge on public funds. The amendments would require the law enforcement authorities to pay the debts of unsecured creditors and such authorities are not presently resourced to meet such expenditure.
  More specifically, the amendments would empower the courts to order the enforcement authorities to pay compensation to make up the amount of any debt the defendant was unable to repay because of the making of a confiscation order. On the face of it, the maximum possible cost of the amendments would be roughly the amount that is currently recovered under confiscation orders; that is, approximately £18 million a year.
  It is theoretically possible, however, for a defendant to have larger debts than the value of the confiscation order made against him. It is also possible for these debts to be to several different people. All the different creditors could argue with equal validity that it was their own debt that was unpaid because of the confiscation order. The maximum cost of the amendments could therefore be higher than the maximum recovered annually under confiscation orders.
  We do not know what debts defendants have, or the extent to which the availability of compensation would stimulate claims which cannot be made at present, so it is difficult to estimate accurately the financial effect of the amendments. But, as I have illustrated it could be considerable. I commend the Motion to the House.
  Moved, That the House do not insist on their Amendment No. 9 to which the Commons have disagreed for their reason numbered 9A.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.
  5.15 p.m.

  LORDS AMENDMENT NO. 30
  30 Clause 42, page 28, line 29, at end insert—
  "() make provision for the payment of debts of the specified person incurred for full consideration before the restraint order was made,"
  The Commons disagreed to this amendment for the following reason—
  30A Because it is not appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals.
  Lord Falconer of Thoroton: My Lords, I beg to move that the House do not insist on their Amendment No. 30 to which the Commons have disagreed for their reason numbered 30A. With these amendments, I shall speak also to your Lordships' Amendments Nos. 66 and 99, to which the Commons have disagreed for their reasons numbered 66A and 99A.
  These amendments deal with an issue that has been debated very thoroughly both in this House and in the other place. The issue is the position of unsecured creditors under Parts 2 to 4 of the Bill. In this instance, the question is whether such creditors should have debts owed to them by a defendant paid from restrained assets.
  The Government fully agree with the arguments which were put forward in the other place for rejecting the amendments. We consider that there are a number of serious objections to the amendments, both practical and principled.
  To take the practical objections first, I must impress upon the House that we consulted the enforcement authorities about the effect of these amendments before we returned to the issue in the other place. They tell us that the amendments would seriously undermine the criminal confiscation parts of the Bill. On the basis of their day-to-day experience in operating the present confiscation laws, they believe the amendments would stimulate fraudulent claims, designed to engineer criminals' assets into the hands of their families and associates. We see no reason to disagree with the enforcement authorities' assessment of this issue. It is based on their practical experience of dealing with criminals and their assets.
  In our view, the amendments would also undermine the Bill by encouraging criminals to run up bone fide debts in order to frustrate the confiscation process. This too would undermine the operation of the legislation. Worst of all, perhaps, the amendments would overload the enforcement authorities and the courts with onerous and unnecessary litigation to determine whether claims were genuine or not. That cannot be in the public interest.
  My honourable friend in another place was asked towards the end of the most recent debate there whether he would confirm that the Government's only objections to the amendments were practical. He declined to do so. There are also objections of principle to them. Let me remind the House of them briefly. First, we know of no other disposal which places unsecured creditors in the specially favoured position which these amendments would.
  Secondly, the making and enforcement of a confiscation order do not relieve criminals of the obligation to pay their debts. We see no reason why criminals should not be required to pay their debts as well as their confiscation orders.

  49
  Thirdly, it is implicit in the amendments that it is acceptable for criminals to pay their debts with assets which they have derived from crime. We reject that suggestion. The proceeds of crime belong to the victim, where one is identifiable, and to society, where one cannot be identified. Criminals have no right to pay their debts with assets that they were never entitled to in the first place.
  We recognise that there are strongly held views on the other side and we have listened to them carefully. As so often, it is a question of where the balance of the argument lies. It is our considered conclusion that in this case it is firmly against the amendments passed by your Lordships' House. I commend the Motion to the House.
  Moved, That the House do not insist on their Amendment No. 30 to which the Commons have disagreed for their reason numbered 30A.—(Lord Falconer of Thoroton.)
  Lord Goodhart Lord Goodhart rose to move, as an amendment to the Motion, That this House do not insist on their Amendment No. 30 to which the Commons have disagreed for their reason numbered 30A,
  30B leave out "not".
  The noble Lord said: My Lords, the amendment invites the House to restore an amendment originally passed at Report stage in your Lordships' House. In the form in which it now appears, it is a little unfortunate. The amendment leaves out only the word "not". If it were passed, the provision would read:
  "Because it is appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals".
  That is obviously not the intention of the amendment. It would be necessary also to leave out the words:
  "which would be open to abuse by criminals".
  I shall speak also to Amendment Nos. 66B and 99B. The purpose of the amendments is to allow the court, on making a restraining order, to make provision for payment of debts incurred in good faith out of the restrained assets of the person against whom a restraint order was made. In your Lordships' House, the three original amendments were passed as a part of a larger group directed to the same issue—that is, the payment of debts due to unsecured creditors of the defendant in priority to the seizure of those assets by the Government. The remainder of the amendments in the group have just been rejected on privilege grounds for the reasons numbered 9A, 47A, 78A and 166A—and obviously this House can do nothing about that.
  In principle the amendments we have put forward are matters of obvious and simple fairness. The Government do not have a proprietary claim to confiscated assets which is prior to or equal to that of creditors. The victims in these cases are unlikely to claim, particularly because a large part of the funds will arise out of drug dealing where, quite plainly, the purchaser of the drug has no claim for the money that he has paid over to buy the drugs. As for society, yes, in a sense it does have a claim—but that claim is quite remote and far less immediate than the claim of the unpaid creditor.
  The situation is quite different from that of tax, where there is undoubtedly a liability consisting of a debt owed by the taxpayer to the Government. It is worth noting that, up until now, the Government have had priority as a preferential creditor of the taxpayer but, under the Enterprise Bill now passing through your Lordships' House, the Government are giving up that priority and they will have, henceforth, only an equal right to recover tax debts as other unsecured creditors.
  In the debate in the other place when our amendments were being considered, Mr Bob Ainsworth, who was the responsible Minister, said:
  "The amendments would undermine the confiscation scheme so completely as to render it inoperable"—[Official Report, Commons, 18/7/02; col. 508.]
  Those words deserve the McEnroe response—"You cannot be serious".
  Under our amendment, to get paid a creditor would have to show that the debt was incurred for full value and without knowledge of any possible confiscation proceedings against the debtor. The courts have plenty of experience in deciding whether or not debts are bogus. They have to do so all the time in bankruptcy proceedings.
  We are trying to protect the small creditor—the builder, the shopkeeper, the people who are unsecured creditors. The big creditors—the banks, the building societies—are all right. They are secured creditors, and secured creditors are repaid out of the proceeds of sale of confiscated assets. But the unsecured creditors, however innocent, end up being left out in the cold.
  The Government have a fanciful idea that Mr Big would run up a lot of unsecured debts, possibly bogus, possibly real. Let me tell the Government what Mr Big would do. He would do a deal with a dodgy bank in a dodgy tax haven and he would give the hank security over all his chargeable assets in the United Kingdom. That security would be fully documented and, when the confiscation order was made, the bank would claim its money under the security—and that money would reappear in some overseas company under the control of Mr Big or his friends or family.
  Why do not the Government follow the logic of their own argument and confiscate the security interests in the defendant's property as well as the unsecured rights? The big banks, I am afraid, carry more clout than Bob the Builder. The Government recognise the right of unsecured creditors to get paid out of property that is subject to a civil recovery order under Part 5 of the Bill. Why are a confiscation order and a civil recovery order so different?
  The Government are being blindly stubborn. They have convinced themselves that claims by unsecured creditors would undermine the scheme of the Bill. They consulted the Enforcement Authority—as no doubt they would. But that authority is a profoundly interested party. Why did not the Government consult more widely than that?
  There is no evidence that claims by unsecured creditors would undermine the scheme of the Bill and no reason whatever to believe that that is true. They

  51
  might involve a certain amount of additional expense in court proceedings but one would hope that whether or not a claim by an unsecured creditor was genuine could fairly quickly be identified. Unsecured creditors would be unlikely to take the risk of being saddled with the expenses of the proceedings if they fought on without a good case.
  As matters now stand, the Government will be punishing innocent creditors. In a sense, this is a minor point. It is not central to the Bill and the Government could have given way without damaging it. But the line taken by the Government is obviously unfair and unnecessary. Their defences, quite frankly, are utterly feeble. I beg to move.
  Moved, as an amendment to the Motion, That this House do not insist on their Amendment No. 30 to which the Commons have disagreed for their reason numbered 30A, leave out "not"—(Lord Goodhart.)
  Lord Peyton of Yeovil: My Lords, I hope that the noble and learned Lord will pay serious attention to the amendment moved by the noble Lord, Lord Goodhart. I have the impression that the Government do not care about unsecured creditors. If I were in a charitable mood—which I am not particularly—I would say that the most charitable excuse for the drafting of the Government's reason for not agreeing to our Amendment No. 30—
  "Because it is not appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals"—
  is that at that stage the Government were feeling tired and their intellectual resources could produce nothing better than this lame piece of verbiage.
  The noble Lord, Lord Goodhart, is quite right not to be satisfied with the Government's reason. I should not like to anticipate what I intend to say when we come to the amendments where the Government have said with great frankness that the House of Commons have had no opportunity to debate them. Perhaps they should have said so in this case. At least that would have been a little more honest. I support the amendment of the noble Lord, Lord Goodhart, and I hope that the Minister will give it serious attention.
  Viscount Bledisloe: My Lords, I have not taken part in the consideration of these matters before. I see the force of the argument advanced by the noble Lord, Lord Goodhart. This is not a question of creating a preference for unsecured creditors; the Government are giving themselves a preference over unsecured creditors by making a restraint order. Until now, they had no entitlement or right to these monies at all. As has been pointed out, they have no claim to the proceeds of crime save as created by the Bill. The victim has—the bank which has been robbed, and so on—but the state has no right at all. The Government are creating a preference for themselves.
  Let us consider the position of the unsecured creditor—whom the noble Lord, Lord Goodhart, has, rather nauseatingly, identified as Bob the Builder—in a situation where, for many years, Mr Big has
  52
  conducted very successful major criminal operations and the Government have until now failed to catch him. As a result he has been able to live in ample style and carry on as a man of great wealth and, because he was wealthy, Bob the Builder has been induced to extend credit to him. Had the police been more efficient, they would have caught him earlier and he would not have been able to "con" Bob the Builder. So it is the fault of the state that he has been able to get credit from Bob the Builder.
  As to the reason that such a provision would be open to abuse, I agree with the noble Lord, Lord Goodhart, that that is rubbish. If Mr Big wants to put his money out of the way of the restraint order, he either puts it overseas, or he goes out and buys goods for cash and hands them to other people. He does no more by incurring credit than by spending the money. If he knows that the restraint order is coming, he spends the money—for example, in art galleries overseas—and leaves the assets there in the name of one of his friends. There are plenty of abuses that he could make. Incurring debts with Bob the Builder is not the obvious one.
  Indeed, the debt may not be one that he has run up specially. He may genuinely have had a new gold or platinum plated bath installed and it may simply not yet have been paid for. There may be nothing improper about it. Therefore, I urge the Government to think again. I find the House of Commons reason pretty unconvincing in this case.
  5.30 p.m.
  Lord Kingsland: My Lords, the powerful speeches of my noble friend Lord Peyton and the noble Viscount, Lord Bledisloe, need no further embellishment from me. I support, entirely, both the amendment and the views expressed in support of it by the noble Lord, Lord Goodhart.
  Lord Falconer of Thoroton: My Lords, this is a very serious point. Perhaps I may make four points in response. First, we consulted widely on the draft Bill before we produced the Bill. Noble Lords will know that for approximately 15 or 16 years there have been confiscation procedures in place which are quite similar, though not as widespread in terms of the crimes that they cover, as this Bill. We are unaware of any problem arising of the sort that the noble Lord, Lord Goodhart, and the noble Viscount, Lord Bledisloe, identify.
  Secondly, while we pay great heed to what two distinguished insolvency lawyers such as the noble Lord, Lord Goodhart, and the noble Viscount, Lord Bledisloe, say, we must also pay regard to people who are engaged on a daily basis in the process of seeking to recover assets from criminals.
  One pays regard to what the noble Lords say. But the enforcement authorities may say, "If you include this, it will have the effect of criminals running up debts with families and associates as a means of trying to avoid many of their assets being got rid of to the confiscation authority". If they also say to us that

  53
  bona fide debts will be run up, because in that way the criminal will get the benefit of the money, that is something to which we have to pay regard.
  Moreover, yes, of course it is true that the courts will be astute to identify those cases where there are not bona fide transactions but transactions which are designed in order to try to avoid the effect of confiscation. The first question is: will they spot every one of them? The second question is: should the courts be filled with cases in which those very issues are being debated? We think not. So it is a matter of practicality. After taking advice very carefully from those who know about these issues, we believe that the right course is not to agree to the unsecured creditors point.
  As I indicated earlier, there is a point of principle here. The state should not be paying the debts of these criminals. The criminals should not be paying the debts out of money that they have stolen. They should be paying them with untainted money. That, as a matter of principle, is the right approach.
  Lord Goodhart: My Lords, this is a matter about which I feel strongly. I have made my points and I shall not make them again. As regards taking the matter any further, we are in an impossible position. The really important amendments were those objected to by the Commons on grounds of privilege and they cannot be taken further. That being so, in practical terms it would be anomalous to propose that these amendments, which are not subject to the privilege rule, should be restored to the Bill. I beg leave to withdraw my amendment.
  Amendment No. 30B, as an amendment to the Motion, by leave, withdrawn.
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 43
  43 Clause 94, page 56, line 7, at end insert "unless it is of the opinion that there are exceptional circumstances which justify its not doing so"
  The Commons disagree to this amendment for the following reason:
  43A Because it is not appropriate for the court to have a discretion to decide not to initiate proceedings for confiscation orders.
  Lord Falconer of Thoroton: My Lords, I beg to move that this House do not insist on their Amendment No. 43 to which the Commons have disagreed for their reason numbered 43A, but do propose the following amendments in lieu thereof—
  43B Clause 145, page 89, line 23, at end insert—
  "(2A) But an offence does not satisfy the test in subsection (1)(d) or (e) unless the accused obtains relevant benefit of not less than £5000.
  (2B) Relevant benefit for the purposes of subsection (1)(d) is—

  (a) benefit from conduct which constitutes the offence:

  (b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the accused has been convicted.

  (2C) Relevant benefit for the purposes of subsection (1)(e) is benefit from conduct which constitutes the offence.
  (2D) The Scottish Ministers may by order vary the amount for the time being specified in subsection (2A)."
  43C Clause 375, page 218, line 6, at end insert—
  54
  "(5) There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access Wit to be given, having regard to—

  (a) the benefit likely to accrue to the investigation if the material is obtained,

  (b) the circumstances, under which the person the application specifies as appearing to be in possession or control of the material holds it."

  43D Clause 382, page 221, line 3, after "sought," insert—
  "(aa) it is in the public interest for the material to be obtained, having regard to benefit likely to accrue to the investigation if the material is obtained,"
  43E Page 221, line 17, after "(8)," insert—
  "(aa) there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained,"
  43F Clause 386, page 223, line 35, at end insert—
  "(4) There must be reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained."
  43G Clause 393, page 227, line 47, at end insert—
  "(6) In the case of any investigation there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided having regard to the benefit likely to accrue to the investigation if the information is obtained."
  43H Clause 399, page 230, line 21, at end insert—
  "(6) In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained."
  43J Clause 451, page 260, line 32. after "section" insert "145(2D)"
  43K Page 260, line 39, after "section" insert "145(2D)"
  Moved, That the House do not insist on their Amendment No. 43 to which the Commons have disagreed for their reason numbered 43A but do agree with Amendments Nos. 43B to 43K in lieu thereof.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 47
  After Clause 98, insert the following new clause—
  Compensation of creditors

  (1)Any person who was a creditor of the defendant at the time when the confiscation order was made may, within one year of the date of the order, take an application to the court for compensation.

  (2)The court may require the enforcement authority to pay compensation to the applicant if it is satisfied that—

  (a) as a result of the making of the order the defendant is wholly or in part unable to repay the debt,

  (b) the debt was incurred for full consideration; and

  (c) at the time the debt was incurred the applicant had no reason to believe that a confiscation order could be made against the defendant."

  The Commons disagreed to this amendment for the following reason:
  47A Because it would involve a charge on public funds, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
  Lord Falconer of Thoroton: My Lords, I beg to move that this House do not insist on their Amendment No. 47 to which the Commons have disagreed for their reason numbered 47A.
  Moved, That the House do not insist on their Amendment No. 47 to which the Commons have disagreed for their reason numbered 47A.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 66
  66 Clause 123 page 77, line 21, at end insert—
  "() make provision for the payment of debts of the specified person incurred for full consideration before the restraint order was made;"
  The Commons disagreed to this amendment for the following reason:
  66A Because it is not appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals.
  Lord Falconer of Thoroton: My Lords, I beg to move that this House do not insist on their Amendment No. 66 to which the Commons have disagreed for their reason numbered 66A. I have already spoken to this amendment. I beg to move.
  Moved, That the House do not insist on their Amendment No. 66 to which the Commons have disagreed for their reason numbered 66A.—(Lord Falconer of Thoroton.)
  [Amendment No. 66B, as an amendment to the Motion, not moved.]
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 73
  73 Clause 161, page 96, line 13, at end insert "unless it is of the opinion that there are exceptional circumstances; which justify its not doing so"
  The Commons disagreed to this amendment for the following reason:
  73A Because it is not appropriate for the court to have a discretion to decide not to initiate proceedings for confiscation orders.
  Lord Falconer of Thoroton: My Lords, I beg to move that this House do not insist on their Amendment No. 73 to which the Commons have disagreed for their reason numbered 73A, but do propose Amendments Nos. 73B to 73D in lieu thereof.
  73B Clause 229, page 140, line 4, at end insert—
  "(3A) But an offence does not satisfy the test in subsection (2)(d) or (e) unless the defendant obtains relevant benefit of not less than £M.
  (M) Relevant benefit for the purposes of subsection (2)(d) is—

  (a) benefit from conduct which constitutes the offence,

  (b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;

  (c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

  (3C) Relevant benefit for the purposes of subsection (2)(e) is—

  (a) benefit from conduct which constitutes the offence;

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  (b) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

  (3D) The Secretary of State may by order vary the amount for the time being specified in subsection (3A)."
  73C Clause 451, page 260, line 25, after "section" insert "229(3D)"
  73D Page 260, line 36, after section" insert "229(3D)"
  Moved, That the House do not insist on their Amendment No. 73 to which the Commons have disagreed for their reason numbered 73A, but do propose Amendments Nos. 73B to 73D in lieu thereof.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 78
  After Clause 165, insert the following new clause—
  "Compensation of creditors"

  (1) Any person who was a creditor of the defendant at the time when the confiscation order was made may, within one year of the date of the order, make an application to the court for compensation.

  (2) The court may require the enforcement authority to pay compensation to the applicant if it is satisfied that—

  (a) as a result of the making of the order the defendant is wholly or in part unable to repay the debt;

  (b) the debt was incurred for full consideration, and

  (c) at the time the debt was incurred the applicant had no reason to believe that a confiscation order could be made against the defendant."

  The Commons disagreed to this amendment for the following reason:
  78A Because it would involve a charge on public funds, and the Commons do not offer any further reason trusting that this reason may be deemed sufficient.
  Lord Falconer of Thoroton: My Lords, I beg to move that this House do not insist on their Amendment No. 78 to which the Commons have disagreed for their reason numbered 78A. I have already spoken to this amendment.—(Lord Falconer of Thoroton.)
  Moved, That the House do not insist on their Amendment No. 78 to which the Commons have disagreed for their reason numbered 78A.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 99
  99 Clause 196, page 120, line 31, at end insert—
  "() make provision for the payment of debts of the specified person incurred for full consideration before the restraint order was made;"
  The Commons disagreed to this amendment for the following reason:
  99A Because it is not appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals.
  Lord Falconer of Thoroton: My Lords, I beg to move that this House do not insist on their Amendment No. 99 to which the Commons have disagreed for their reason numbered 99A.
  Moved, That the House do not insist on their Amendment No. 99 to which the Commons have disagreed for their reason numbered 99A.—(Lord Falconer of Thoroton.)
  [Amendment No. 99B, as an amendment to the Motion, not moved.]
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 110
  110 Clause 251, page 148, line 29, at beginning insert "Subject to section (Proceedings brought under section 251: defence of respondent),"
  The Commons disagreed to this amendment for the following reason:
  110A Because it is not appropriate to provide any such exceptions, the House having reached its decision without the opportunity for debate.
  The Attorney-General (Lord Goldsmith)The Attorney-General (Lord Goldsmith) rose to move that this House do not insist on their Amendment No. 110 to which the Commons have disagreed for their reason numbered 110A but do propose the following amendment in lieu thereof—
  110B Clause 2, page 2, line 21, at end insert—
  "(6) The guidance must indicate that the reduction in crime is in general best secured by means of criminal investigations and criminal proceedings."
  The noble and learned Lord said: My Lords, with these amendments I shall speak also to your Lordships' Amendment No. 113 to which the Commons have disagreed for their reason numbered 113A.
  These amendments go to the heart of the civil recovery scheme contained in Part 5 of the Bill. The amendments made by this House were discussed fully on Report and at Third Reading in this House. Although the specific amendments were not in the event discussed in the other place—as reflected in the reasons for disagreement—the civil recovery scheme had been discussed there at some length previously.
  As specified in the reasons, the other place considers—although not with the benefit of debate on the point—that it would not be appropriate to provide the kind of exception to the civil recovery scheme that would result from the amendments.
  The noble and learned Lord, Lord Lloyd of Berwick, has on other occasions explained in detail his concerns about the civil recovery scheme contained in the Bill and his reasons for proposing the amendments. For my part, I have made it clear, also in previous debates, that the Government do not share his views. We do not agree that civil recovery proceedings are analogous to a criminal trial. We therefore do not accept that there is an inevitable conflict with the European Convention on Human Rights.
  We are clear that the amendments proposed by the noble and learned Lord, Lord Lloyd, and supported by the opposition parties, would make the civil recovery scheme set out in Part 5 of the Bill unworkable. They would not improve the scheme. They would also certainly not make it less vulnerable to challenge in ECHR terms.
  Amendments Nos. 110 and 113 would prevent civil recovery proceedings being taken against any person whose own unlawful conduct was alleged to have generated the recoverable property at issue. This would be because such a person would have a right to demand a trial in the Crown Court. However, as civil
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  recovery proceedings will not be brought unless criminal proceedings are not appropriate—or have failed—the amendments would have an unacceptable effect in terms of some of the key intended targets of civil recovery.
  The amendments would also introduce into the civil recovery proceedings a focus on the guilt of an individual rather than the origins of the property, contrary to the intention of this part of the proposed legislation. However, we appreciate the concern of this House that the bringing of criminal prosecutions is to be preferred where the normal evidential and public interest tests are satisfied. We have stressed at all stages of the passage of the Bill that prosecution will remain the priority, and that the director will pursue civil recovery or taxation only where a prosecution is not appropriate. We accept, however, that there has been nothing on the face of the Bill to this effect. We therefore believe that Amendment No. 110B—an amendment to Clause 2 which we have proposed in lieu of Lords Amendments Nos. 110 and 113—will provide an important safeguard in this regard.
  The amendment will ensure that the guidance given to the director by the Secretary of State will make it clear that criminal investigations and criminal prosecutions will—in general—best secure the reduction of crime. This will, I hope, allay any concerns that civil recovery might be used in cases where criminal proceedings should properly be brought. That is a significant confirmation of the position and one that I trust will recommend itself to the House. I beg to move.
  Moved, That the House do not insist on their Amendment No. 110 to which the Commons have disagreed for their reason numbered 110A but do propose Amendment No. 110B in lieu thereof.—(Lord Goldsmith.)
  Lord Peyton of Yeovil: My Lords, I rather wondered why the Attorney-General was on the Front Bench and whether it suggested that the noble and learned Lord, Lord Falconer, was not capable of making these points. As the Attorney-General continued, however, I understood that he was trying to tell us what should have been said in another place about why they would not accept your Lordships' amendment.
  I am left wondering on a point not so much of law but of good manners—which do not always carry the day in another place. I wonder why those in the other place should have included as a reason for not accepting your Lordships' amendment the statement,
  "Because it is not appropriate to provide any…exceptions".
  All right; that might be an argument. However, they go on to say:
  "the House having reached its decision without the opportunity for debate".
  The procedures in another place show that it has quite voluntarily cut down on the time that it is prepared to expend on legislation. Unhappily, the Government are not following such a precept at all. They are bombarding Parliament and the country with a cascade of legislation which has rarely been equalled.

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  We now have this plain statement, which I cannot construe in any other way:
  "the House having reached its decision without the opportunity for debate".
  In other words, the other place cares not a rat for any argument that may be put forward here; such argument is not worth our spending time on; they will just reject it.
  I very much hope that the Attorney-General will be able to explain. He has already explained the legal reasons for not wishing to accept your Lordships' amendment. However, if those in another place had to reject it, I think that they might have done so in slightly less rude and abrasive terms. Perhaps the Attorney-General will apply his mind to that.
  5.45 p.m.
  Lord Lloyd of Berwick: My Lords, I follow very much what has just been said by the noble Lord, Lord Peyton. I am not so well versed in the procedure of this House as other noble Lords, certainly not with the procedure that should be followed when this House is considering amendments passed by this House but disagreed to by the other place. In the Companion, at paragraph 6.153, I read that the Commons are required to give their reasons for disagreeing with a Lords amendment. That does not surprise me in the least. I have spent my life in the law, and it is elementary that all courts, high or low, are required to give reasons for their decisions, simply so that the parties can know where they are. That duty to give reasons is part of what we understand by "a fair trial".
  As has been said on many occasions, the reasons given must be proper reasons. They must be adequate and, above all, they must be intelligible. That applies not only to courts required to give reasons; it applies also to Ministers who are required to give reasons and, indeed, to all who are required either by law or by custom to give reasons for their decisions. I assume that it applies equally to the Commons when they are giving their reasons for disagreeing with our amendments.
  So one looks to see what the reasons are for disagreeing with Amendments Nos. 110 and 113. But what does one find? It is said that to make "exceptions"—which are the exceptions covered by the two amendments—would be "inappropriate". That is a word that is always being used in many different contexts. It seems to me a word of very little meaning. However, whatever it means, it certainly does not import a reason for disagreeing with the Lords amendments. It is a conclusion; it is not a reason. It means, "We do not like the Lords amendments and we therefore propose to disagree with them". If one is permitted to quote Latin in this House—one is not allowed under the Woolf reforms to quote Latin in the law courts any more—I would remind noble Lords what was said, in Roman times, by Juvenal: Sic pro ratione voluntas; let my will stand in place of reasoned judgment. That appears to be the line being taken.
  So one looks further, and what does one find? Why is it said that the amendments are inappropriate? The answer is: "Because we did not have time to consider
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  them". As a reason for not agreeing to our amendments, that is simply unintelligible; it makes no sense. It is not a reason at all. It is at most an excuse. It is not a reason. How can we consider—as we are supposed to be doing on this occasion—the Commons reasons for disagreeing with our amendments unless we know what those reasons are? All we know is that they voted apparently without any consideration at all.
  We are often told that this House performs a valuable function as a revising Chamber, and I believe that to be true. It is all the more important, as has also been emphasised, that we should perform that function as scrupulously as we can when we are faced every year with a new flood of criminal legislation. I cannot remember whether at the last count that amounted to 10 new criminal justice Acts in as many years. I may be out of date; there may be more.
  As it happens, I am strongly in favour of the Proceeds of Crime Bill. I have made that clear from the very start. However, Part 5 contains something entirely new; that is, provisions which in my opinion are capable of causing grave injustice as well as provisions which are clearly incompatible with the Human Rights Act. It was to eradicate those injustices that I drafted and moved Amendments Nos. 110 and 113. I am afraid that I explained my reasons in four speeches in your Lordships' House, each of which was probably much too long. In the course of the Third Reading debate your Lordships ultimately decided by a majority of 149 to 132 that those reasons were sound. They have now been disagreed to by the Commons without any reasons being given, save only one reason which is wholly unintelligible. I find that profoundly unsatisfactory and not the way in which one would have thought that communication should be conducted between the two Houses.
  I suggest that the proper course now is for this House to send back Amendments Nos. 110 and 113 with a request that they be reconsidered, or perhaps I should say considered for the first time, and, if rejected, or if disagreed to, that proper intelligible reasons be given which we can then consider. We cannot consider the reasons today because they are not available. We can guess what they may be—we have heard the Attorney-General on three or four occasions so we may guess them—but the reasons we want to be given are the Commons reasons.
  It may be said that I ought to have put down my thoughts in the form of a Motion. I do not know whether or not I should have done so. I am afraid that I only saw the Motion late last night but the circumstances in any event are peculiar because the noble and learned Lord's Motion is itself clearly defective. It asks us not to insist on an amendment to which the Commons have disagreed for certain reasons. However, when one examines the matter, those reasons are not provided. For those reasons I shall vote against the Motion.
  Viscount Bledisloe: My Lords, far be it for me to do anything as improper as to criticise or cast aspersions upon the proceedings of another place. But had I

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  emerged from Mars and was not aware of the doctrine that the Commons could do no wrong, I might find it somewhat surprising that one part of the legislature rejected without debate an amendment passed in this House, having been moved by a Lord of Appeal in Ordinary and supported on all sides of the House by experienced and learned persons, without giving any reasons. But, of course, within the conventions of the House, that Martian would be entirely wrong because the Commons can do no wrong.
  Turning to the substance of the matter and the points made by the noble and learned Lord the Attorney-General, who is, I believe, called Lord Goldsmith rather than Lord Goodhart, as he knows, I have sympathy with part of his points. I agree that one cannot always require criminal proceedings partly because some of the offences in question may be committed abroad and are not triable in this country and partly because what is considered here is general unlawful conduct rather than a particular crime. However, I am perturbed that a judge trying such a matter can come to the conclusion that someone is guilty of very serious crimes, and do so upon the civil burden of proof. The noble and learned Lord the Attorney-General told us that the judge would, in accordance with the rules, take the matter seriously and would require the balance of probabilities to be well pressed down. However, that is not the same as saying that he should be satisfied beyond reasonable doubt. I do not see why the judge trying the matter should not be required to be satisfied beyond reasonable doubt that the person in question had been guilty of unlawful conduct. I suggest that it would go some way to meet the noble and learned Lord's concern if the Government, even at this late stage, accepted that the judge in question had to decide the matter of unlawful conduct on the basis of its being beyond reasonable doubt.
  I accept, of course, that that is not a matter which is before the House at the moment. The noble and learned Lord may accept the suggestion of the noble and learned Lord, Lord Lloyd of Berwick, that the matter should not be pressed at the moment. Or, if the House decides to reject the Commons reasons and send the measure back, I urge the Government to consider, when it goes back to the Commons, whether they could not go some way towards meeting the noble and learned Lord's concern by saying that the burden of proof of deciding whether there had been unlawful conduct should be that of beyond reasonable doubt.
  Lord Renton: My Lords, I, too, feel obliged to support the noble and learned Lord, Lord Lloyd of Berwick, as my noble friend has done and as the noble Viscount, who has just spoken, has done. I am sorry to have to say that it seems to me that the Government have failed to apply a well established practice of the constitution. We in your Lordships' House have the right to ask the Members of another place to think again and to change any amendments we have passed. Surely, in doing so, it is not sufficient to deal with the matter in the way that it has been dealt with in this case.
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  I refer to House of Commons Hansard of 18th July at col. 530 which concerns Lords Amendment No. 110. That was the paving amendment moved by the noble and learned Lord at Third Reading. It is merely stated at col. 530 of Commons Hansard:
  "Motion made, and Question put, That this House disagrees with the Lords in the said amendment".
  No reasons are given there; there is no prior discussion whatever giving reasons. The result of the Division is set out. In the Commons reasons for disagreeing to certain Lords amendments the Government have put forward a statement which Hansard does not support, stating that,
  "The Commons disagree to this amendment for the following Reason—
  Because it is not appropriate to provide any such exceptions".
  That was not mentioned in the House of Commons and not mentioned by the Government and not, so far as I know, put forward in any document that the Commons had to consider. As the noble and learned Lord pointed out, the reason continues,
  "the House having reached its decision without the opportunity for debate".
  That ignores a well-established practice of our constitution.
  Of course, Members of the House of Commons have the last word but we have the right to ask them to think again—although not again and again—so long as they give their reasons. On this occasion no such reason has been given. That applies to both the paving amendment and the amendment of substance put forward by the noble and learned Lord. Therefore, I most earnestly support the plea made by him and by the noble Viscount, Lord Bledisloe. Instead of asking your Lordships merely to endorse what the Government have done—Members of another place have not been asked to consider the reasons—let the matter go back to the Members of another place to see what they decide.
  6 p.m.
  Lord Skelmersdale: My Lords, like my noble friend, I was struck by the repetition by the noble and learned Lord the Attorney-General of the second half of the Commons reason. He was sitting next to his noble and learned friend Lord Falconer when he said earlier that of course we pay regard to what noble Lords say. I emphasise the word "say". By extension, one assumes that this Government listen to what Members of another place say. Again, I stress the word "say".
  In this House, when discussing reasons for disagreeing to an amendment from another place, the main protagonists get into a little huddle, usually in the Prince's Chamber, and thrash out such a reason. It beggars belief that that procedure was followed in this case in another place. I cannot think of any little huddle coming up with such a crazy reason.
  Lord Tebbit: My Lords, what I find objectonable is that reason 110A is not true. The other place had plenty of time for debate. It simply chose not to take advantage of that. Members of another place could

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  have debated the issue for as long as they wished. It was not that they did not have the opportunity; they did not take the opportunity for debate. They passed a guillotine Motion which stopped them from having that debate. That reason is not the view of the House of Commons but of the Whips' Office of the House of Commons.
  I was interested to hear the noble and learned Lord the Attorney-General give his reasons why we should not stand by the amendment we had made. It was very interesting. But those were not the reasons which impressed another place because Members did not hear them. The issue was not debated. Indeed, it might just as well have been said that this was agreed to by another place because it did not have the opportunity for debate. We do not know what Members of another place would have done had they listened to a debate. This place has a tradition that it listens to debate. It was because the debate was listened to in this Chamber that the Government lost in the proceedings. Perhaps the same would have happened in another place. We should not think so badly of them—that they always simply accept what the Whips tell them. Just occasionally, Members might rebel. Let us give them the chance.
  Lord Thomas of Gresford: My Lords, the danger of the reason given is that it sets a precedent. It introduces the guillotine into this House. It means that if ever anything is left undebated in another place, that is a sufficient reason for disregarding any consideration that this House may give. Whatever may happen in relation to the amendment proposed by the noble and learned Lord, this is a disgraceful procedure which should never be repeated.
  The Earl of Erroll: My Lords, many years ago, when I was quite new to the Chamber, I remember towards the end of the Session that Whips on both sides colluded to get through a clearly defective clause in a Bill. They considered that it was not that important; it did not matter; and they would let it through.
  With pressure of time—another place is about to rise—there is a danger that we shall allow through potentially defective legislation. We say that Members of another place are democratically elected. But when the executive control another place, is there any democratic control? The situation is dangerous. I have experienced such a situation once before.
  Lord Kingsland: My Lords, after some hesitation in Committee, the Opposition supported strongly the noble and learned Lord, Lord Lloyd, on Report and at Third Reading. After the noble and learned Lord's victory in your Lordships' House, I assumed that, when the amendment returned to another place, it would be duly reversed and return again to your Lordships' House—as indeed has been the case.
  I imagined that I would then stand before noble Lords saying that, although I deeply regretted the vote of another place, there were two reasons why your Lordships should say that our constitutional
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  arrangements have taken their course. First, sooner or later the Judicial Committee of your Lordships' House would have an opportunity to take a view on Part 5. Secondly, the task, constitutionally, of your Lordships' House is to ask another place to think again. Had another place thought again, and had the matter returned to your Lordships, I think we would have been prepared to accept that we had done our duty.
  However, as so many noble Lords and noble and learned Lords have said during the past 10 minutes, another place has not thought again. Indeed, another place has not thought at all. Another place has not fulfilled its constitutional duty. That is particularly grave when the matter before it was not a party political matter; it was a constitutional matter raised by a noble and learned Lord from your Lordships' Cross Benches.
  With great respect to the noble and learned Lord the Attorney-General, I think he owes noble Lords a very convincing explanation as to why another place was not prepared to think about this matter and return it after careful consideration.
  Lord Goldsmith: My Lords, having listened to noble Lords, I agree that it is necessary to explain how we are in this situation.
  A programme Motion was agreed with the Opposition in another place before the debate took place. It was an agreed programme Motion, not Government insisting on or forcing it. The programme Motion allowed three hours, if I correctly understand, to consider Lords amendments. That time was taken up with those matters which Members of another place wished to debate. Your Lordships have considered some of those other amendments today. When the guillotine Motion was put, it was not voted against so that matters of timing proceeded by way of agreement in another place. As it happens, which is plain from the reasons, this particular amendment was not debated. What happened thereafter, as those of your Lordships who have been in the other place will know, such as the noble Lords, Lord Renton and Lord Tebbit, the Reasons Committee will have been charged with the job of assigning a reason as best it understood it as to why the amendment had not been accepted.
  The principal reason, which is both a proper and a good one, is:
  "Because it is not appropriate to provide any such exceptions".
  That is the first half of the reason given. The noble and learned Lord, Lord Lloyd of Berwick, will agree that that was submitted on behalf of the Government when I dealt with the matter at length both on Report and at Third Reading. There is nothing surprising or wrong about the proposition that the reason why the amendment is not acceptable is:
  "Because it is not appropriate to provide any such exceptions".
  It is right to say, too, that the other place debated Part 5 of the Bill at some length prior to the proceedings in your Lordships' House. Its view on the provisions was formed at that time and the provisions did not include any exceptions.
  Lord Renton: My Lords, I feel bound to correct the Minister. Having carefully studied Hansard, I cannot

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  find in such discussion as there was any reference whatever to the debate on the two amendments tabled by the noble and learned Lord.
  Lord Goldsmith: My Lords, I entirely accept that the Commons did not debate the matter; the time was used for other purposes. The noble Lord, Lord Renton, will recollect that there is a Reasons Committee in the other place which assigns reasons for declining to accept an amendment as best it can.
  Lord Thomas of Gresford: My Lords, if the Government were to go to court on judicial review proceedings and gave as their reason for a decision that it was not appropriate to do something else, does the noble and learned Lord believe that that would stand up for a second? Why, therefore, should it stand up in these circumstances?
  Lord Goldsmith: My Lords, this part of the reason is no more brief than other reasons assigned by the Commons. For example, the reason in Lords Amendment No. 99 is:
  "Because it is not appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals".
  Again, the same formulation of words, that it is not appropriate to provide exceptions, is used. Any Member of the House who listened or participated on Report and at Third Reading will know that whether it is appropriate to provide an exception is at the heart of the disagreement between the Government and the noble and learned Lord, Lord Lloyd of Berwick.
  Let me develop what the exception would be. Someone who is said to be the perpetrator of unlawful conduct that gives rise to the property should not be subject to Part 5 if the person says that he wants to be tried in the Crown Court, and such a trial does not take place, or it takes place but does not result in a conviction.
  That is an enormous exception, which is at the heart of the disagreement between us. While I regret the situation that has resulted from the points made by your Lordships today, but which will be studied with great care, the fact remains that there is a fundamental difference between what the noble and learned Lord proposed and what the Commons had previously agreed, which was a civil recovery procedure scheme that did not carve out a very important exception.
  Lord Renton: My Lords, I apologise to the noble and learned Lord and thank him for giving way again. In view of what he said about the matter having been considered, how is it that the Government Motion refers to
  "the House having reached its decision without the opportunity for debate"?
  Lord Skelmersdale: My Lords, I am not sure whether I am in order, but I should like to ask the noble and learned Lord a question. When he said that the Reasons Committee assigned reasons, surely such reasons can only be assigned on the basis of a discussion having taken place, which in this case was
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  the original amendment proposed by the noble and learned Lord Lloyd of Berwick. Would it be more accurate to say that the reason was invented?
  Lord Goldsmith: My Lords, I do not think that that would be right. Nor, is it right for us to inquire into what happened in the Reasons Committee. One must assume that the Reasons Committee, which is the procedure in another place, did its best to assign a reason knowing the view of the House. I entirely accept what the noble Lord, Lord Renton, said, about the other place not debating the issue. No one is trying to hide that. I cannot stress enough that the reason was put forward by the Reasons Committee. It is not the Government's language but that of the Reasons Committee.
  The Earl of Erroll: My Lords, I wonder whether I have got it right when I suggest that the executive tells the other place to reject the amendment; it then appoints some of its own members to invent some reasons; and then it sends the amendment back here. Is that correct? Who appoints the Reasons Committee?
  Lord Goldsmith: My Lords, this is a Committee agreed by the parties in another place. I understand that the Government did not have a majority on the Reasons Committee. They are not the Government's reasons but the reasons of the Reasons Committee in another place.
  Viscount Bledisloe: My Lords, with the benefit of having the noble Lord, Lord Weatherill, next to me, I shall ask the noble and learned Lord the Minister, about the other place, which is a little tough on him as he has never been there. Is it not the duty of the Reasons Committee to analyse the reasons given in the debate and then decide how to put them into a neat sentence? It is not its duty to invent reasons that are, in fact, the Government's reasons. They cannot be the reasons of the House because the House did not debate the amendment. The Reasons Committee is there not to make its own reasons but to analyse the debate and codify it.
  Lord Goldsmith: My Lords, I have not been in the other place, but I have next to me my noble friend Lord Davies, who has. I understand that it is the duty of the Reasons Committee to assign a reason divining as best it can the will of the House. Sadly there was no debate on this occasion, but when a debate has taken place, I imagine that the Reasons Committee knows the will of the House from that. In the absence of a debate, when a programme Motion has been agreed to—not forced on the Opposition—the Reasons Committee has to find what it believes the will of the House to be. The strong argument against the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick, is that it would produce an exception that was not appropriate. Therefore, the reason that has been assigned is entirely appropriate.
  Lord Peyton of Yeovil: My Lords, would I be paraphrasing the Minister unfairly if I said that the

  67
  Reasons Committee, having no straw with which to make bricks, had to produce something that looked like a brick?
  Lord Goldsmith: My Lords, with respect, the noble Lord ignores the fact that the other place had debated the Bill substantially before it came to this House and is able, from that, to know what the will of the House is in relation to this particularly important part of the Bill. This part of the Bill provides for a new form of civil recovery, which was supported in another place by all parties and in this place at Second Reading. The noble and learned Lord, Lord Lloyd of Berwick, proposed an amendment to create an exception—a major exception—which the Government believe, as I have explained at great length on Report and at Third Reading, would make this part of the Bill unworkable.
  Lord Tebbit: My Lords, the noble and learned Lord comes to the issue with the clarity of mind of a lawyer and he comes fresh not to the Bill but to the issue of the proceedings in another place. Would he be so kind as to tell us how long the debate was in the Reasons Committee? Did it discuss the amendment of the noble and learned Lord, Lord Lloyd? It had to have some reason; it had not got anything out of the debate in the Commons because that debate did not take place.
  Lord Goldsmith: My Lords, I do not know the answer to that question.
  Noble Lords: Oh!
  Lord Goldsmith: I do not, my Lords; I am being perfectly frank with the noble Lord, Lord Tebbit. I suggest that we should draw a line under the reasons why a properly constituted committee of another place reached the conclusion that it did. It has assigned its reasons. I entirely understand and appreciate that your Lordships' House regards this as a matter of discourtesy. I have indicated that people will have to look carefully at what has been said.
  However, the point before noble Lords is that, having debated the matter fully on other occasions, another place was of the view that Part 5 was an important part of the effort to produce a system that would prevent the proceeds of crime fuelling further crime in this country; that it was necessary to approach that by way of the new civil recovery process; and that it was necessary to prevent the corrosive effect of the proceeds of crime, as the noble Lord, Lord Kingsland, described it, from continuing drug trafficking, human trafficking, money laundering, bank robbery and serious organised crime. It is an important part. Everybody has accepted, with few exceptions—the noble and learned Lord, Lord Lloyd, was one of them—that Part 5 involves the right approach. Lords Amendment No. 110 would produce an exception—a huge exception—and would make this part of the Bill unworkable.
  I have done the best that I can to deal with what is, from my point of view, a difficulty. The fact remains that the other place knew what the Bill was about and
  68
  debated it at length. I have no reason to think that the Reasons Committee would not fully have understood what the will of the House was in relation to this particular exception. In those circumstances, I therefore invite noble Lords to accept the alternative amendment—the amendment in lieu proposed by the Government—and not to insist on Amendment No. 110.
  Lord Denham: My Lords, I almost cannot believe that this discussion is taking place in this way. The noble and learned Lord is producing a total "Alice in Wonderland" situation here. He is asking us to accept things that make a mockery of this House and of comity between the Houses. If this had happened in my days as Chief Whip, I should have advised my noble and learned friend who would have been on the Government Benches to take the matter away and to think it over again. I really do not think that we should have a Division on this. It should be taken back. That is the proper thing for the noble and learned Lord to do in these circumstances.
  Lord Goldsmith: My Lords, I hear the noble Lord's proposal. It is known that the other place is about to rise, before this House. I urge noble Lords to consider the underlying merits of the situation. The fact is that another place is of the view that Part 5 is an important part of the Bill. The debate on it—the noble and learned Lord, Lord Lloyd, would probably agree—was largely between him and me. Few others in this House participated in that debate; the noble Lord, Lord Renton, was an exception, as was the noble Viscount, Lord Bledisloe.
  Lord Thomas of Gresford: My Lords, I interrupt the noble and learned Lord to say that I also participated in that debate. I intervene not to raise that point but to refer to his suggestion a moment ago that the noble and learned Lord, Lord Lloyd of Berwick, was on his own or with very few others. Did the Reasons Committee in another place not take into account the fact that the amendment of the noble and learned Lord was passed and supported by noble Lords on all sides of the House?
  Lord Goldsmith: My Lords, I should make clear what I was going to say. It was not that the amendment has not been agreed and supported by the House; it plainly was, as the noble Lord said. My point was rather narrower: that during the earlier stages of the Bill, the noble and learned Lord, Lord Lloyd, was among the very few who objected to the concept of Part 5; others had supported it. The Government say now, and we said then, that with that exception, Part 5 would become unworkable. It is therefore inappropriate to have the exception in the Bill. I was not suggesting for a moment that the noble Lord, Lord Thomas, had not spoken on this matter; he did so briefly at Third Reading.
  In the end, there is an exception, which the Reasons Committee said is inappropriate. That, ultimately, is the reason that lies behind the disagreement of the Commons to the amendment. I invite noble Lords not to insist on Amendment No. 110.
  6.28 p.m.
  On Question, That the House do not insist on their Amendment No. 110 to which the Commons have disagreed for their reason numbered 110A but do propose Amendment No. 110B in lieu thereof?
  Their Lordships divided: Contents, 126; Not-Contents, 44.

  Division No. 1

  CONTENTS

  Acton, L.

  Howells of St. Davids, B.

  Ahmed, L.

  Howie of Troon, L.

  Amos, B.

  Hughes of Woodside, L.

  Andrews, B.

  Hunt of Kings Heath, L.

  Archer of Sandwell, L.

  Irvine of Lairg, L. (Lord Chancellor)

  Ashton of Upholland, B.

  Barnett, L.

  Islwyn, L.

  Bassam of Brighton, L.

  Jay of Paddington, B.

  Berkeley, L.

  Jones, L.

  Blackstone, B.

  Judd, L.

  Borrie, L.

  Kennedy of The Shaws, B.

  Bragg, L.

  King of West Bromwich, L.

  Brennan, L.

  Kirkhill, L.

  Brett, L.

  Layard, L.

  Brooke of Alverthorpe, L.

  Lea of Crondall, L.

  Brookman, L.

  Lipsey, L.

  Burlison, L.

  Lockwood, B.

  Campbell-Savours, L.

  Lofthouse of Pontefract, L.

  Carter, L.

  Macdonald of Tradeston, L.

  Chandos, V.

  McIntosh of Haringey, L. [Teller]

  Chester, Bp.

  Christopher, L.

  McIntosh of Hudnall, B.

  Clark of Windermere, L.

  MacKenzie of Culkein, L.

  Clarke of Hampstead, L.

  Mackenzie of Framwellgate, L.

  Clinton-Davis, L.

  Corbett of Castle Vale, L.

  Mason of Barnsley, L.

  Crawley, B.

  Massey of Darwen, B.

  David, B.

  Merlyn-Rees, L.

  Davies of Coity, L.

  Milner of Leeds, L.

  Davies of Oldham, L.

  Mitchell, L.

  Dean of Thornton-le-Fylde, B.

  Morris of Aberavon, L.

  Donoughue, L.

  Morris of Manchester, L.

  Dormand of Easington, L.

  Ouseley, L.

  Dubs, L.

  Patel, L.

  Elder, L.

  Patel of Blackburn, L.

  Evans of Parkside, L.

  Paul, L.

  Falconer of Thoroton, L.

  Pendry, L.

  Farrington of Ribbleton, B.

  Pitkeathley, B.

  Faulkner of Worcester, L.

  Plant of Highfield, L.

  Filkin, L.

  Prys-Davies, L.

  Fitt, L.

  Radice, L.

  Fyfe of Fairfield, L.

  Ramsay of Cartvale, B.

  Gale, B.

  Randall of St. Budeaux, L.

  Gavron, L.

  Rea, L.

  Gibson of Market Rasen, B.

  Rendell of Babergh, B.

  Gilbert, L.

  Renwick of Clifton, L.

  Golding, B.

  Richard, L.

  Goldsmith, L.

  Rooker, L.

  Gordon of Strathblane, L.

  Sainsbury of Turville, L.

  Goudie, B.

  Simon, V.

  Gould of Potternewton, B.

  Smith of Leigh, L.

  Graham of Edmonton, L.

  Stone of Blackheath, L.

  Grenfell, L.

  Symons of Vernham Dean, B.

  Grocott, L. [Teller]

  Taylor of Blackburn, L.

  Hardy of Wath, L.

  Temple-Morris, L.

  Harris of Haringey, L.

  Tomlinson, L.

  Harrison, L.

  Turnberg, L.

  Haskel, L.

  Turner of Camden, B.

  Hayman, B.

  Uddin, B.

  Hilton of Eggardon, B.

  Walker of Doncaster, L.

  Hogg of Cumbernauld, L.

  Warner, L.

  Hollis of Heigham, B.

  Warwick of Undercliffe, B.

  70

  Whitaker, B.

  Williams of Mostyn, L. (Lord Privy Seal)

  Whitty, L.

  Wilkins, B

  Woolmer of Leeds, L.

  NOT-CONTENTS

  Attlee, E.

  Lloyd of Berwick, L. [Teller]

  Baker of Dorking, L.

  Lucas, L.

  Bledisloe, V.

  MacGregor of Pulham Market, L.

  Bowness, L.

  Brookeborough, V.

  Marlesford, L.

  Brougham and Vaux, L.

  Mayhew of Twysden, L.

  Burnham, L.

  Monson, L.

  Colville of Culross, V.

  Mowbray and Stourton, L.

  Colwyn, L.

  Northbourne, L.

  Condon, L.

  O'Cathain, B.

  Craigavon, V.

  Park of Monmouth, B.

  Darcy de Knayth, B.

  Perry of Southwark, B.

  Denham, L.

  Peyton of Yeovil, L. [Teller]

  Elton, L.

  Phillips of Sudbury, L.

  Erroll, E.

  Renton, L.

  Fowler, L.

  Rogan, L.

  Freeman, L.

  Sandberg, L.

  Geddes, L.

  Sheppard of Didgemere, L.

  Greenway, L.

  Skelmersdale, L.

  Henley, L.

  Stoddart of Swindon, L.

  Knight of Collingtree, B.

  Tebbit, L.

  Lamont of Lerwick, L.

  Waddington, L.

  Weatherill, L.

  Resolved in the affirmative, and Motion agreed to accordingly.
  6.39 p.m.

  LORDS AMENDMENT NO. 113
  113 After Clause 251, insert the following new clause—
  "Proceedings brought under section 251: defence of respondent

  (1) Where proceedings are brought against a person under section 251, that person (the respondent) is the person through whose unlawful conduct the property is said to have been obtained, the following provisions of this section shall apply.

  (2) If the respondent denies that he is guilty of the alleged unlawful conduct, he shall be entitled to have the question whether he is so guilty determined in a separate trial by the Crown Court, and the proceedings in the High Court shall be adjourned.

  (3) If he is acquitted by the Crown Court, the proceedings in the High Court shall be dismissed.

  (4) If he is convicted by the Crown Court, the Court must proceed under Part 2 of this Act, and the proceedings in the High Court shall stand adjourned until the proceedings in the Crown Court have been conducted whereupon the proceedings in the High Court shall be dismissed.

  (5) If the respondent elects not to exercise his rights under subsection (2), the question whether he is guilty of the alleged unlawful conduct shall be determined by the High Court on the criminal burden and standard of proof, and all other questions shall be determined on the civil standard of proof.

  (6) If the respondent is found guilty of unlawful conduct under subsection (5), and the court is satisfied that he is in possession of recoverable property, the court shall make a recovery order in accordance with this part of this Act, save that the recovery order shall not include property obtained by the respondent through unlawful conduct committed by him before the coming into force of this Part, and section 316(3) shall to that extent not apply."

  The Commons disagreed to this amendment for the following reason—
  113A Because it is not appropriate to provide any such exceptions, the House having reached its decision without the opportunity for debate.
  Lord Goldsmith: My Lords, I beg to move that the House do not insist on their Amendment No. 113 to which the Commons have disagreed for their reason numbered 113A. I have already spoken to this amendment.
  Moved, That the House do not insist on their Amendment No. 113 to which the Commons have disagreed for their reason numbered 113A.—(Lord Goldsmith.)
  On Question, Motion agreed to.

  LORDS AMENDMENT NO. 166
  166 After Clause 286, insert the following new clause—
  "Compensation of creditors

  (1) Any person who was a creditor of the respondent at the time when a recovery order was made may, within one year of the date of the order, make an application to the court for compensation.

  (2) The court may require the enforcement authority to pay compensation to the applicant if it is satisfied that—

  (a) as a result of the making of the order the respondent is wholly or in part unable to repay the debt;

  (b) the debt was incurred for full consideration; and

  (c) at the time the debt was incurred the applicant had no reason to believe that a recovery order could be made against the respondent."

  The Commons disagreed to this amendment for the following reason—
  166A Because it would involve a charge on public finds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.
  Lord Falconer of Thoroton: My Lords, I beg to move that the House do not insist on their Amendment No. 166 to which the Commons have disagreed for their reason numbered 166A.
  Moved, that the House do not insist on their Amendment No. 166 to which the Commons have disagreed for their reason numbered 166A.—(Lord Falconer of Thoroton.)
  On Question, Motion agreed to.
  Bill returned to the Commons with amendments.

Police Reform Bill [H.L.]
6.40 p.m.
Lord Falconer of Thoroton: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.

Police Reform Bill [H.L.]
  COMMONS AMENDMENTS
  [The page and line refer to Bill 127 as first printed for the Commons.]
  COMMONS AMENDMENTS

    COMMONS AMENDMENT
    1 Clause 4, page 4, line 45, at end insert—
    "(5) The Secretary of State shall not give a direction under this section in relation to any police force unless—
    72

    (a) the police authority maintaining that force and the chief officer of that force have each such information about the Secretary of State's grounds for proposing to give that direction as he considers appropriate for enabling them to make representations or proposals under the following paragraphs of this subsection;

    (b).that police authority and chief officer have each been given an opportunity of making representations about those grounds;

    (c).that police authority has had an opportunity of making proposals for the taking of remedial measures that would make the giving of the direction unnecessary; and

    (d).the Secretary of State has considered any such representations and any such proposals.

    (6) The Secretary of State may by regulations make further provision as to the procedure to be followed in cases where a proposal is made for the giving of a direction under this section.
    (7) Before making any regulations under this section, the Secretary of State shall consult with—

    (a) persons whom he considers to represent the interests of police authorities;

    (b) persons whom he considers to represent the interests of chief officers of police, and

    (c) such other persons as he thinks fit.

    (8) Regulations under this section may make different provision for different cases and circumstances.
    (9) A statutory instrument containing regulations under this section shall not be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. It is perhaps fitting that we begin our consideration of the amendments made in the other place with the issue which has proved to be the most contentious throughout the passage of the Bill in both Houses. Indeed, it is so contentious that this House decided at Report stage in April to remove the offending clause—that is, Clause 5, headed "Directions to chief officers"—from the Bill.
    In turn, the other place decided, as is their right, to restore the clause. But the clause that we are now considering is very different from the one first introduced into your Lordships' House. Indeed, it is so different that the clause now has a different title. Rather than "Directions to chief officers", it is now to be entitled "Directions as to action plans".
    It is fair to say that in the past three months since the Bill left this House, both sides have come a long way. During the earlier debates in this House, the opposition were not even prepared to accept that there were any circumstances in which it would be appropriate for the Home Secretary of the day to intervene to ensure that effective action was taken to address poor performance. There is now a general acceptance that there must be some last-resort mechanism for the Home Secretary to become involved where local remedies have failed to address serious weaknesses.
    For our part, we now accept that the trigger for intervention must be an adverse report by Her Majesty's Inspectorate of Constabulary. Evidence of poor performance from the Police Standards Unit or Audit Commission may cause the Home Secretary to

    73
    commission a special inspection, but the independent inspectorate would need to confirm that the initial concerns were fully justified.
    The Government also accept that the intervention powers, once triggered, should be applied through the local police authority. Hence there is no longer a power to direct a chief officer. We have instead built upon the existing power to direct police authorities. That was first introduced in the Police and Magistrates' Courts Act 1994 by the previous Conservative administration.
    Under the revised clause, the Home Secretary will direct the police authority to submit an action plan. In turn, the police authority will direct the chief officer to prepare a draft of such a plan. It will then be for the police authority to adopt the plan, with or without modifications, and submit it to the Home Secretary.
    I should stress that the content of the action plan will be wholly a matter for the police authority, in consultation with the chief officer. However, we believe that it is entirely reasonable that the Home Secretary should see the plan and, if necessary, comment on it, to satisfy himself and, more importantly, those communities suffering from an inadequate policing service that adequate measures are to be taken. Again, it would be entirely a matter for the police authority to decide whether to change the plan in the light of the Home Secretary's comments.
    The House will no doubt recognise many of the features in the revised clause. They are not dissimilar to those contained in the amendment moved by my noble friend Lord Harris of Haringey at both Committee and Report stages, which received general support from both Opposition Front Benches.
    Following further discussions with the Shadow Home Secretary, we have made some further adjustments to subsection (2) of new Section 41A, which are contained in government amendments to Amendment No. 2. Those adjustments seek to remove any lingering doubt that the Home Secretary would still be able to dictate the content of an action plan. We are happy to make it abundantly clear that that is not the case.
    I believe that, as a result of these and the earlier changes, there is now broad agreement to these amendments, and I commend them to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Falconer of Thoroton.)
    6.45 p.m.
    Baroness Anelay of St Johns: My Lords, in rising to speak to this amendment, which, as the Minister has pointed out, goes to the heart of some of our original objections to parts of this Bill, I shall, with the leave of the House, take the rather unusual step of speaking generally and as briefly as possible on all remaining amendments before the House today. I have given notice of that intention to the Minister, to the Liberal Democrat Front Bench and to the Chief Whips of both parties. It is to show good will to the Bill at this stage and to assist its speedy passage at a time when we have
    74
    much pressing business in this House. I hope that by speaking for about five or six minutes now, I shall not need to detain the House by speaking on any further matters today, unless, of course, it becomes necessary at some stage to correct any inaccuracies.
    I welcome the Bill as it is now being re-drafted by the Government. It goes far enough towards the position we have been seeking to be acceptable to us. If the Liberal Democrats press their amendments to a Division today, I am afraid that we shall not be able to support them.
    I pay tribute to the hard work done over the past few months by my noble friends, especially my noble friend Lord Dixon-Smith, and by my right honourable friend Mr Letwin and my honourable friend Mr Paice, in making these significant government concessions possible. I do not in any regard underestimate the extent of the hard talking that has taken place behind the scenes, as well as on the Floors of both Houses, nor the extent of the Government's recognition of the clear determination of this House to stick by its principled views expressed during our debates on the Bill.
    On other matters before us today, I should also like to take the opportunity now to welcome the new provisions on sex offender orders, which will ensure better protection for vulnerable people against convicted sex offenders.
    Of course, there is always a "but". In this instance, the "but" is that my noble friend Lord Attlee is still extremely unhappy with Amendment No. 142, which will be debated later. I am sure that the Minister will recognise, as I do, the depth and breadth of my noble friend's knowledge and expertise in these matters. Amendment No. 142 deals with the movement of abnormal loads. My noble friend believes that it facilitates a private person undertaking what is now a police function on a commercial, not a competitive, basis. I have not been briefed on this matter by the industry, as there has been no consultation by the Home Office. I am sure that both my noble friend and I will return to this matter in the future when the Bill is enacted, but I am most grateful to him for indicating to me that he will not pursue the matter in our debates today.
    When the Bill was debated in this House, noble Lords found three measures in particular objectionable: first, the Secretary of State's plans to intervene in constabularies where ministers believe they have failed in some respect; secondly, the provisions to invent community support officers; and, thirdly, the Henry VIII powers regarding the Secretary of State's powers to make orders and regulations.
    I shall deal briefly with the three points in reverse order. I welcome the concession made by the Government on Report on 9th July on the so-called Henry VIII powers, when they tabled an amendment which had the effect of adding their names to the amendment tabled by my honourable friend Mr James Paice and Mr Norman Baker. I welcome the Government's conversion to our view not only that the powers were indeed Henry VIII powers—far too extensive—but that they should be deleted, as they had

    75
    been by this House. If the Government had not made that concession, the Bill would have provided a power to enable the Home Secretary to amend and supplement the list of police powers, set out in the schedules, which civilians might possess under the Bill. We believed that that gave the Home Secretary too wide a power, and the clause was removed from the Bill at Third Reading.
    With regard to the CSOs, it is no secret that, had we started with a clean sheet of paper, we would not have invented them. We would have preferred to adopt another route, using the Special Constabulary. However, I welcome the Government's commitment, given on Report at columns 980 to 981 of Commons Hansard of 10th July, that the schemes will be piloted and that during the first two years after the commencement of this Act, the maximum number of forces allowed to deploy CSOs with the power to use detention with reasonable force will be six. It is acceptable because we are assured by the Government that they settled on that number after consultation with the chief inspector of the constabulary.
    I therefore come to the final and most intractable of the issues, which is the subject of the amendments in this group; that is, Clause 5 and the Government's initial plans to require chief officers in forces which Ministers consider to be failing in some way, to submit an action plan addressing the problem; and of course, as the noble and learned Lord the Minister has pointed out, Clause 5 was deleted by this House. It would have given central control of policing to the Home Secretary and undermined the tripartite system that gives a role to chief constables, Ministers and police authorities.
    When the Bill was debated on Report in another place, the Government's position was still not acceptable to us. Their offer was that the requirement for an action plan should be imposed only after an adverse report from independent inspectors and that it should be channelled through the police authorities. However, the Government would still have been able to indicate the relevant areas on which the plan should focus. That was not acceptable to us.
    The Government's amendments which they have brought forward today show that they have now dropped that objectionable requirement. The new clause gives the Home Secretary the power to initiate an action plan, but will give him no control over its contents and he will no longer be able to direct chief officers to draw one up.
    The Home Secretary will not now have the power to run every police force from his desk in Whitehall as we believed was initially proposed. As the old saying goes, "A week is a long time in politics", and in this week the Government have done their final and most welcome U-turn. They have listened properly to the concerns expressed first in this House and subsequently in another place. I therefore welcome the amendments.
    Lord Dholakia: My Lords, the amendment is grouped with a number of other amendments. I want particularly to speak to Amendments 2, 2A and 75A to D.
    76
    There have been a number of changes to the Bill in another place. I am delighted that much of what has now been achieved reflects the concern that we expressed in your Lordships' House. I am delighted with the contribution of my honourable friends Norman Baker and Simon Hughes, who were able to bring much pressure on the Government to achieve these changes. I welcome the amendment, but I intend to speak also in relation to CSOs later on during the relevant amendment.
    In the meantime, I confirm that our approach on Report in your Lordship's House was justified. We strenuously opposed Clause 5 then because we believed and still believe that the police authority should be at the heart of all changes proposed. To tamper with this well-established structure will not bring improvement in the way we deal with crime. Moreover there is a clear demonstration in a number of previous Bills before your Lordships' House that the Government have an insatiable appetite to control matters centrally. They took little notice of what we said on the Education Bill and on other Home Office matters, where central controls replaced many of the local initiatives.
    At the heart of police reforms must be an acceptance that police authorities are an essential element of the tripod that sustains local accountability and independence. More importantly, they are the guardians of the independence of police operational methods. Any interference in those aspects would erode the confidence of the public. I am glad that the Government have made a concession to uphold that principle. It is reflected in the way the amendment has been framed.
    The Bill now stops short of establishing the Home Secretary's position as the de facto head of policing. The Government failed to realise that the Bill as first drafted seemed to accord to the Home Secretary powers that go far beyond those traditionally accepted within our constitutional convention.
    The most obvious issue is that the Bill altered the historical constitutional balance of the relationship between central government, the local governance of policing and the so-called operational independence of chief constables. There has always been a recognisable separation—albeit now somewhat blurred—between the power, the responsibility and the accountability of each of the three institutions. Since the inception of the new model police from the late 1820s onwards, constitutional convention has stressed the importance of local accountability for the delivery of policing. That is one good reason why the amendment ought to be supported.
    Locally appointed police authorities—as they became—have jealously guarded against central interference. It must be recognised that the traditional tripartite" relationship was manipulated into a more lineal one following the Conservative sponsored Police and Magistrates' Court Act 1994. Ministers may well reflect the controversy surrounding those provisions and especially as they related to the perceived centralising of power. The current Bill, however, went

    77
    far further. Its net effect would have established the Home Secretary as the determining institution in and of policing.
    The original Bill all but eradicated the position of police authorities as the locally accountable governing body. It could well reduce their role to that of mere functionaries of interpretation. It also altered the relationship between the Home Secretary and Chief Constables. The Home Secretary accrues to himself the power to dismiss chief officers, having already the power to determine the suitability for appointment. Taken together with the other powers, it could be perceived that chief officers of police could be wholly dependent on and at the whim of the Home Secretary.
    That interference is wholly unacceptable. It is a dangerous development. It is not an exaggeration to suggest that if the Bill was passed in its original format, it would entrench more power and control in central government. I am glad to an extent that we have moved away from that. Save perhaps for the Armed Forces, the Police Service is the most powerful operational institution in any polity. We might not have a police state in the literal sense of the term, but we would be a long way towards establishing one. We would certainly have a ministry of policing in everything other than in name.
    The central question still remains: why does the present Home Secretary see the need for such measures? I find it difficult to understand his publicly-announced reasoning that because he is responsible to Parliament for policing he should have the power as well as the responsibility. While I do not want to rehearse the points already made in previous debates in your Lordships' House about the role of central government, it seems to me to be a complete misunderstanding of the role of a Minister within a liberal democracy for the Home Secretary to assume such powers. It is, I believe, a sign of immature governance to presume that accruing such powers will positively assist the delivery of policing services.
    However, we know now that the buck stops with him. He has no escape route left. I am therefore a little happier that our concern is reflected—not totally but partially—in the Commons amendment and the amendment moved by the noble and learned Lord, Lord Falconer.
    I turn to Commons Amendment No. 75. The argument that I have advanced about police authorities applies equally to the NCIS authority. The Government have gone some way in redefining their relationship in trying to tackle remedial measures realised by an inspection under Section 54 of the Act.
    For the time being we shall support these measures. But we shall watch developments with great care. So, although the powers of the Home Secretary to intervene in the actions of chief officers of police and police authorities have been greatly reduced—thanks to the combined opposition in both Houses of Parliament—I have no doubt that if we smell that the
    78
    local authority is eroded by centralised control we shall be back to propose suitable amendments in future legislation.
    Lord Harris of Haringey: My Lords, I rise briefly to say how pleased I am with the amendments put forward by my noble and learned friend Lord Falconer of Thoroton. It is important that the Government have listened to the arguments put by noble Lords, by police authorities externally and by chief police officers about the importance of the tripartite relationship between the Home Secretary, local police authorities and local chief officers of police.
    Essentially, the amendments in this group restore that balance. It is entirely legitimate for the Home Secretary to have concerns about the performance and delivery of policing services in local areas. However, it would not be legitimate for him to follow up that concern with the proposals that were originally in the Bill. The arrangements that have now been put before the House set the balance right. The local police authority will be required to ensure that an appropriate action plan is drawn up and that that action plan meets the concerns of local communities and the wider population, to whom the Home Secretary is responsible.
    So the balance has now been struck right. I would say that, having tabled an amendment on similar lines at an earlier stage, this is an important recognition that the Government have listened to the concerns that have been expressed and have now got the balance right, preserving the important principle of the tripartite relationship.
    7 p.m.
    Baroness Harris of Richmond: My Lords, I, too, agree that we have come a long way from the original draft. I welcome much of what we have worked on in this House and what they have worked on in another place. But, like my noble friend Lord Dholakia, I ask why the Home Secretary still feels that he needs the powers, and what evidence he has that police authorities will not have regard to the national policing plan. They have a statutory duty to do so; if they do, there should be no need for the Home Secretary to issue an action plan. That could still be seen by police authorities to be undermining their role.
    On Amendment No. 75A, it is again the directions to the service authorities of the National Criminal Intelligence Service and the National Crime Squad that are difficult for us to accept. They are relatively new bodies and, to my knowledge, have thoroughly complied with their statutory responsibilities. As is the case with the police authorities for England and Wales, there can be no sensible reason for the Home Secretary to take to himself those powers. He has sufficient power to make police authorities and forces perform better. The intervention powers under Clause 4 achieve that. I still have considerable concerns about

    79
    the matter, as does my noble friend Lord Dholakia, but we agree that we have come a long way from the Bill as drafted.
    Lord Corbett of Castle Vale: My Lords, perhaps I may thank my noble and learned friend for not simply listening to concerns expressed in this House and another place about the Bill's provisions but, more importantly, responding to them. It is slightly churlish to start to throw around phrases such as U-turns, defeats and the rest of it. One of the reasons that this place is here is to review legislation with which we are presented and propose ways in which we collectively feel that it may be improved. It is then up to the Government of the day, who have a majority in the other place, to decide whether they will simply listen and reject those proposals or, as one hopes—and more sensibly, in my view—to listen and respond to what has been said.
    I do not want to reopen the argument, but although I understand many of the concerns expressed, they are exaggerated and overstated. But that is by the by, in a sense, because the whole debate at both ends of the Corridor has underlined the continuing importance of our tripartite arrangements for policing on behalf of communities up and down this island. That is what matters.
    What matters is that, as far as possible, we should try to proceed together on the path of reform. I have not heard any argument that policing is incapable of being reformed—least of all, let me immediately say, from the police themselves. There are arguments about the detail, but we are all signed up to the need to persuade, encourage and enable the police, with the proper provision of the resources that they need in terms of manpower, equipment and all the rest of it, to get better results in not just detecting but deterring crime, where possible. There is no argument between us about that. The amendments proposed by my noble and learned friend will help us to achieve that.
    Lord Falconer of Thoroton: My Lords, I hope that your Lordships will not think it discourteous of me not to reply to the debate, because we have gone through this many times. Although I appreciate that the noble Lord, Dholakia, and the noble Baroness, Lady Harris, have reservations, the appropriate course is for us to proceed, because I shall deal with almost all of their points in the course of debate on other amendments.
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    2. After Clause 4, insert the following new clause—
    "Directions as to action plans
    After section 41 of the 1996 Act there shall be inserted—
    "41A Power to give directions as to action plans

    (1) This section applies where a report to the Secretary of State on an inspection under section 54 states, in relation to a police force for a police area—

    (a) that, in the opinion of the person making the report, the whole or any part of the force is, whether generally or in particular respects, not efficient or not effective; or

    80

    (b) that, in that person's opinion, the whole or a part of the force will cease to be efficient or effective, whether generally or in particular respects, unless remedial measures are taken.

    (2) The Secretary of State may direct the police authority responsible for maintaining the force to submit to the Secretary of State a plan ('an action plan') for taking remedial measures in relation to anything that the Secretary of State considers relevant to the matters as to which he is satisfied as mentioned in subsection (1).

    (3) If a police authority is directed to submit an action plan, that authority shall direct the chief officer of police of the force in question to prepare a draft of it and to submit it to the police authority for that authority to consider.

    (4) The police authority, on considering a draft action plan submitted to it under subsection (3) may subirtit the plan to the Secretary of State, with or without modifications.

    (5) If the police authority proposes to make modifications to the draft of the action plan submitted under subsection (3), it must consult with the chief officer of police.

    (6) On considering an action plan submitted to him in accordance with a direction under this section, the Secretary of State may, if he is of the opinion that the remedial measures contained in the action plan submitted to him are inadequate, notify the police authority and the chief officer of the force in question of that opinion and of his reasons for it.

    (7) If a police authority is notified under subsection (6)—

    (a).it shall consider, after consultation with the chief officer of the police force in question about the matters notified, whether to revise the action plan m the light of those matters; and

    (b).if it does revise that plan, it shall send a copy of the revised plan to the Secretary of State.

    (8) On giving a direction under this section to the police authority responsible for maintaining a police force, the Secretary of State shall notify the chief officer of police of that force that he has given that direction.

    (9) The period within which a direction to submit an action plan must be complied with is such period of not less than four weeks and not more than twelve weeks after it is given as may be specified in the direction.

    (10) The provision that a direction under this section may require to be included in an action plan to be submitted to the Secretary of State includes—

    (a) provision setting out the steps that the police authority proposes should be taken in respect of the matters to which the direction relates and the performance targets the authority proposes should be met;

    (b) provision setting out the authority's proposals as to the times within which those steps are to be taken and those standards to be met and the means by which the success of the plan's implementation is to be measured;

    (c) provision for the making of progress reports to the Secretary of State about the implementation of the action plan,

    (d) provision as to the tirnes at which, and the manner in which, any progress report is to be made; and

    (e) provision for the duration of the plan and for it to cease to apply in the circumstances determined by the Secretary of State.

    (11) Nothing in this section shall authorise the Secretary of State or a police authority to direct the inclusion in an action plan or draft action plan of any requirement to do or not to do anything in a particular case identified for the purposes of the requirement, or in relation to a particular person so identified.

    81

    (12) In this section references, in relation to a case in which there is already an action plan in force, to the submission of a plan to the Secretary of State include references to the submission of revisions of the existing plan; and the preceding provisions of this section shall have effect accordingly.

    (13) A police authority shall comply with any direction given to it under this section.

    (14) A chief officer of police of any police force shall comply with any direction given to him under this section.

    (15) Nothing in this section or in section 40 prevents the Secretary of State in the case of the same report under section 54 from exercising (whether in relation to the same matter or different matters or at the same time or at different times) both his powers under this section and his powers under section 40.

    41B Procedure for directions under section 41A

    (1) The Secretary of State shall not give a direction under section 41A in relation to any police force unless—

    (a) the police authority maintaining that force and the chief officer of that force have each been given such information about the Secretary of State's grounds for proposing to give that direction as he considers appropriate for enabling them to make representations or proposals under the following paragraphs of this subsection;

    (b) that police authority and chief officer have each been given an opportunity of making representations about those grounds;

    (c) that police authority has had an opportunity of making proposals for the taking of remedial measures that would make the giving of the direction unnecessary; and

    (d) the Secretary of State has considered any such representations and any such proposals.

    (2) The Secretary of State may by regulations make further provision as to the procedure to be followed in cases where a proposal is made for the giving of a direction under section 41A.

    (3) Before making any regulations under this section, the Secretary of State shall consult with—

    (a) persons whom he considers to report the interests of police authorities;

    (b) persons whom he considers to represent the interests of chief officers of police; and

    (c) such other persons as he thinks fit.

    (4) Regulations under this section may make different provision for different cases and circumstances.

    (5) A statutory instrument containing regulations under this section shall not be made unless a draft of the regulations has been laid before parliament and approved by a resolution of each House.

    (6) If the Secretary of State exercises his power to give a direction under section 41A in relation to a police force—

    (a) he shall prepare a report in his exercise of that power in relation to that force; and

    (b) he shall lay that report before Parliament.

    (7) A report under subsection (6)—

    (a) shall be prepared at such time as the Secretary of State considers appropriate; and

    (b)may relate to more than one exercise of the power mentioned in that subsection.'"

    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.
    Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    Lord Falconer of Thoroton Lord Falconer of Thoroton moved, as amendments to Commons Amendment No. 2, Amendments Nos. 2A and 2B:
    2A Line 14, leave out from beginning to end of line 18 and insert—
    "(2) If the Secretary of State considers that remedial measures are required in relation to any matter identified by the report, he may direct the police authority responsible for maintaining the force to submit an action plan to him.
    (2A) An action plan is a plan setting out the remedial measures which the police authority proposes to take in relation to the matters in respect of which the direction is given."
    2B Line 59, leave out "standards" and insert "targets"
    The noble and learned Lord said: My Lords, I beg to move.
    Moved, as amendments to Commons Amendment No. 2, Amendments Nos. 2A and 2B.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    3 Clause 8, page 7, line 31, at end insert—
    "(bb) he is a person in relation to whom a designation under section (Police powers for contracted-out staff) is or has been in force;"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. As your Lordships will be aware, one of the key aims of the police reform programme is to free police officers from the bureaucratic burdens that keep them in the police station, in order to get them back onto the streets, fighting crime and providing a visible presence that reassures communities.
    Since the publication of the Bill, several police forces have been in touch with us about their plans to contract out custody services to private providers and told us that it would help to maximise the effectiveness of such plans if private providers could make use of the various custody-related powers that we are aiming to open up to civilians through the Bill.
    As an illustration of the potential benefits to the police, Cheshire Constabulary has suggested that contracting out escort duties relating to custody could save 27,000 police hours per annum, or the equivalent of 15 officers released to frontline operational duties. Further significant savings would be available from contracting out detention duties within custody suites. Cleveland Police is looking to free 23 police officers through a similar scheme.
    There are clearly potential benefits from civilianisation in improving efficiency, saving resources and freeing police officers for other duties. I see no reason why, with suitable safeguards in place,

    83
    some of the powers open to police authority-employed, designated persons should not also be available where civilians are employed by a private provider.
    The new clause inserted by Amendment No. 16 sets out the framework of powers for contracted-out staff. That third category of empowered civilian staff will be employees of companies contracted to provide detention and/or escort services to the police authority. Such a person would be able to apply to the chief constable for designation as either a detention officer or an escort officer, or both. Before granting designation, the chief officer would have to be satisfied that the person was suitable to exercise the relevant powers, capable of carrying out the associated functions and appropriately trained—as is the case for designated civilians employed by the police authority. Additionally, the chief officer must be satisfied that the contractor is a suitable person to supervise the designated person.
    As part of the designation process, the chief officer would be able to endow the contracted person with appropriate powers. The relevant sets of powers would be those currently described in those parts of Schedule 4 that cover detention officers and escort officers. The chief officer could choose freely from those lists of powers in respect of each individual designation, and each power would come with the capacity to use reasonable force, where such a capacity was available to a constable using the same power. Where a designated person ceased to be an employee of the relevant employer, or the contractual arrangement between the employer and the police authority was terminated, the designation would lapse.
    Much of the supporting infrastructure of provisions already envisaged for police authority-designated and accredited persons will also be applied to contracted-out persons: for example, the requirement to wear uniform; the offences of assaulting, obstructing or impersonating a designated officer; the obligation on contracted-out staff to have due regard to the relevant provisions of the Police and Criminal Evidence Act 1984 codes of practice; and the provision for the chief officer to modify or withdraw the designation at any time.
    In addition, the new clause includes provision for dealing with complaints or allegations of misconduct by contracted-out staff who are exercising police powers. Designated persons will work closely with the police—in the custody suite, for example—and will be recognised by many as part of the police service as they carry out what are traditionally police functions. We intend that when designated workers provide services to the police, complaints about them or allegations of misconduct should be handled in a manner which is as close as possible to the procedures followed when police officers and employees of the police authority are involved.
    Regulations under the new clause will ensure that there is one system for dealing with complaints involving police officers and designated persons. We want to avoid a member of the public having to pursue
    84
    several complaints through different avenues when they arise from a single incident involving both a police officer and a designated person. Because contracted-out staff have different employers, we cannot simply slot designated persons into the existing police complaints provisions in the Bill. Therefore, the Secretary of State will have the power to make regulations under subsection (9) of the new clause to ensure that there is a system for dealing with misconduct that, as near as is practical, mirrors the procedure applicable to regular police officers. This will include bringing them within the remit of the independent police complaints commission. Subsection (10) of the new clause provides that those regulations may apply any provision of Part 2 with respect to complaints against the police to complaints against persons designated under this clause.
    Part of the chief officer's responsibility in determining the fitness of the relevant employer would be to ensure that he has satisfactory arrangements in place to deal with disciplinary issues that might arise. Of course, the chief officer will be able to remove a person's designation if, following an investigation, either he or the IPCC is not satisfied with the person's behaviour or the way that the employer has dealt with any misconduct.
    The other amendments in this group are largely consequential upon the new clause.
    Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    4 Clause 9, page 9, line 8, after "constables);" insert—
    "(bb) any regulations under section (Police powers for contracted-out staff);
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    5 Page 9, line 23, leave out sub-paragraph (ii)
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5. The Government have long accepted the principle that the same level of protection as is provided by the Public Interest Disclosure Act 1998 to employees and to workers should also be provided to police officers.
    Following the debate in Committee on an amendment tabled by my noble friend Lord Borrie, who is not now in his place, the Government decided that the best course of action is to give police officers the full protection of the Public Interest Disclosure Act, rather than trying to create analogous provisions for police officers through regulations. These amendments make such provision. As a result, police officers, seconded police officers, cadets, special

    85
    constables, officers in constabularies maintained otherwise than by a police authority—such as the MoD Police and the British Transport Police—and police members of NCIS and NCS who blow the whistle, will have the same rights as other employees and workers.
    The latter will cease to be excluded from the provisions about protected disclosures in the Public Interest Disclosure Act 1998. They will be able to have recourse to an employment tribunal if they feel that they have suffered detriment or been dismissed as a result of having made a protected disclosure, such as that another officer has committed a criminal offence or breached the code of conduct for police officers. We believe that this should bring about greater openness within the police service, and thereby lead to an increase in public confidence in it.
    During the Committee stage debate, my noble friend Lord Bassam said that if we brought forward an amendment to bring police officers within the scope of the Public Interest Disclosure Act, the provision in subsection (4)(b)(ii) of Clause 9 would become redundant. This provision sought to protect officers who report wrongdoing by an alternative route. It is accordingly removed by Amendment No. 5.
    Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    6 Clause 13, page 12, line 42, leave out "or conduct matter"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6. One of the key objectives of Part 2 of the Bill is to increase openness in the police complaints system by providing for the maximum disclosure of information to complainants, subject to a sensitivity test. However, there may be circumstances where a person—for example, the relative of someone who has died allegedly as a result of police conduct—does not wish to make a complaint.
    As the Bill stood before these amendments were brought forward, such a person would have had no right to information about the progress of the investigation into the conduct of those whose actions had allegedly led to the death of a relative. The Government believe that a relative of someone who has died allegedly as a result of police conduct, a relative of someone who has been seriously injured and rendered incapable of making a complaint allegedly as a result of police conduct, or someone who has been seriously injured allegedly as a result of police conduct, should automatically be treated as a complainant for the purposes of being kept informed. Amendments Nos. 7 and 78 to 93 provide for this. The amendments also allow the IPCC and the police to be proactive about offering to keep other people whom they consider have an interest in the handling of a complaint or recordable conduct matter informed.
    86
    Amendment No. 8 relates to the issue of officers who commit acts of misconduct not being identified, which has been much discussed of late. In particular, the case of one gentleman—I shall not mention his name without his permission—who was allegedly injured by police officers in the disturbances following the England/Germany game in Euro 1996 will be known to some noble Lords. It will be important for it to be possible to investigate any allegation of misconduct within the new complaints system, even if the person whose conduct is being complained about cannot be identified.
    Amendment No. 8 makes it explicit on the face of the Bill that the Secretary of State will be able to apply the police complaints provisions in Part 2 in cases where the person whose conduct is being complained about cannot be identified. It will be possible to investigate such cases in exactly the same way as if the person could be identified.
    Amendment No. 6 is a technical amendment.
    Moved, That the House do agree with the Commons in their Amendment No. 6.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENTS
    7 After Clause 19, insert the following new clause—
    "Duty to provide information for other persons

    (1)A person has an interest in being kept properly informed about the handling of a complaint or recordable conduct matter if—

    (a) it appears to the Commission or to an appropriate authority that he is a person falling within subsection (2); and

    (b) that person has indicated that he consents to the provision of information to him in accordance with this section and that consent has not been withdrawn.

    (2) A person falls within this subsection if—

    (a) he is a relative of a person whose death is the alleged result from the conduct complained of or to which the recordable conduct matter relates;

    (b) he is a relative of a person whose serious injury is the alleged result from that conduct and that person is incapable of making a complaint.

    (c) he himself has suffered serious injury as the alleged result of that conduct.

    (3) A person who does not fall within subsection (2) has an interest in being kept properly informed about the handling of a complaint or recordable conduct matter if—

    (a) the Commission or an appropriate authority considers that he has an interest in the handling of the complaint or recordable conduct matter which is sufficient to make it appropriate for information to be provided to him in accordance with this section; and

    (b) he has indicated that he consents to the provision of information to him in accordance with this section.

    (4) In relation to a complaint this section confers no rights on the complainant.

    (5) A person who has an interest in being kept properly informed about the handling of a complaint or conduct matter is referred to in this section as an "Interested person".

    (6) In any case in which there is an investigation of the complaint or recordable conduct matter in accordance with the provisions of Schedule 3

    (a) by the Commission, or

    87

    (b) under its management, it shall be the duty of the Commission to provide the interested person with all such information as will keep him properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in subsection (9).

    (7) In any case in which there is an investigation of the complaint or recordable conduct matter in accordance with the provisions of Schedule 3

    (a) by the appropriate authority on its own behalf, or

    (b) under the supervision of the Commission, it shall be the duty of the appropriate authority to provide the interested person with an such information as will keep him properly informed, while the investigation is being carried out and subsequently, of all the matters mentioned in subsection (9).

    (8) Where subsection (7) applies, it shall be the duty of the Commission to give the appropriate authority all such directions as it considers appropriate for securing that that authority complies with its duty under that subsection; and it shall be the duty of the appropriate authority to comply with any direction given to it under this subsection.

    (9) The matters of which the interested person must be kept properly informed are—

    (a) the progress of the investigation;

    (b) any provisional findings of the person carrying out the investigation;

    (c) whether any report has been submitted under paragraph 22 of Schedule 3;

    (d) the action (if any) that is taken in respect of the matters dealt with in any such report, and

    (e) the outcome of any such action.

    (10) The duties imposed by this section on the Commission and the appropriate authority in relation to any complaint or recordable conduct matter shall be performed in such manner, and shall have effect subject to such exceptions, as may be provided for by regulations made by the Secretary of State.

    (11) Subsections (6) to (9) of section 19 apply for the purposes of this section as they apply for the purposes of that section.

    (12) In this section "relative" means a person of a description prescribed in regulations made by the Secretary of State."

    8 Clause 21, page 21, line 47, at end insert—
    "(kk) for applying the provisions of this Part with such modifications as Secretary of State thinks fit in cases where a complaint or conduct matter relates to the conduct of a person—

    (i) whose identity is unascertained at the time at which a complaint is made or a conduct matter is recorded;

    (ii) whose identity is not ascertained during, or subsequent to, the investigation of a complaint or recordable conduct matter;"

    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 7 and 8.
    Moved, That the House do agree with the Commons in their Amendments Nos. 7 and 8.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    7.15 p.m.

    COMMONS AMENDMENT
    9 Clause 31, page 32, line 34 at end insert "a notice in writing"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. These amendments, introduced by
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    the Government at Report stage in another place, clarify an aspect of the provisions in Clause 31 that are concerned with the removal of chief officers at the instance of the Secretary of State.
    Where the Secretary of State intends to require a police authority to exercise its power to call upon the chief officer to retire or resign, subsection (2) of Clause 31 provides that he shall give the chief officer concerned notice of his intention and an explanation of his reasons. In contrast, the provisions of the new Section 42(2A) of the Police Act 1996, as inserted by Clause 31(2), require the Secretary of State to give a copy of the notice to the police authority, but do not explicitly require that the notice should include his grounds for acting.
    The chief officer will receive both notice of the Secretary of State's intention and the grounds for doing so, and it is only right to ensure that the police authority has the same information. One would assume that this would normally happen, but the clause as originally drafted meant that there was a theoretical possibility that it might not. These amendments provide that notice given to the chief officer incorporates the Secretary of State's reasons for acting, so that when a copy of the notice is sent to the police authority it will be aware of those reasons.
    Moved, That the House do agree with the Commons in their Amendment No. 9.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENTS
    10 Page 31, line 33, leave out "a notice" and insert "informing him"
    11 Page 31, line 35, leave out "an explanation in writing of" and insert "explaining"
    12 Page 31, line 39, leave out "of his intention to require the exercise of any power"
    13 After Clause 34, insert the following new clause—
    "Protected disclosures by police officers
    (1) After section 43K of the Employment Rights Act 1996 (c.18), there shall be inserted—
    "43KA Application of this Part and related provisions to police
    (1) For the purposes of—

    (a) this Part,

    (b) section 47B and sections 48 and 49 so far as relating to that section, and

    (c) section 103A and the other provisions of Part 10 so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 103A, a person who holds, otherwise than under a contract of employment, the office of constable or an appointment as a police cadet shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being 'employed' and to his 'employer' shall be construed accordingly.

    (2) In this section 'the relevant officer' means—

    (a) in relation to a member of a police force or a special constable appointed for a police am the chief officer of police;

    (b) in relation to a person appointed as a police member of the NCIS, the Director General of NCIS,

    (c) in relation to a person appointed as a police member of the NCS, the Director General of NCS;

    89

    (d) in relation to any other person holding the office of constable or an appointment as police cadet, the person who has the direction and control of the body of constables or cadets in question."

    (2) In section 200(1) of that Act (provisions which do not apply to persons engaged in police service under a contract of employment)—

    (a) the words "Part IVA" and "47B" shall be omitted;

    (b) after "sections 100" there shall be inserted "103A", and

    (c) after section 100 there shall be inserted "or 103A".

    (3) Section 13 of the Public Interest Disclosure Act 1998 (c. 23) (exclusion of police from provisions about protected disclosures) shall cease to effect."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 10 to 13.
    Moved, That the House do agree with the Commons in their Amendments Nos. 10 to 13.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    14 Clause 35, page 34, line 29, leave out from beginning to second "the", in line 30, and insert "Powers and duties may be conferred or imposed on a designated person by means only of the application to him by his designation of provisions of"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14. All of the amendments in this group are minor drafting or technical amendments. Therefore, unless any noble Lord wishes to raise a question on them, I do not intend to speak to the amendments.
    Moved, That the House do agree with the Commons in their Amendment No. 14.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENTS
    15 Page 35, line 14, leave out subsection (10)
    16 After Clause 35, insert the following new clause—
    "Police powers for contracted-out staff
    (1) This section applies if a police authority has entered into a contract with a person ("the contractor") for the provision of services relating to the detention or escort of persons who have been arrested or are otherwise in custody.
    (2) The chief officer of police of the police force maintained by that police authority may designate any person who is an employee of the contractor as either or both of the following—
    (a) a detention officer; or (b) an escort officer.
    (3) A person designated under this section shall have the powers and duties conferred or imposed on him by the designation.
    (4) A chief officer of police shall not designate a person under this section unless he is satisfied that that person—

    (a) is a suitable person to carry out the functions for the purposes of which he is designated;

    (b) is capable of effectively carrying out those functions; and

    (c) has received adequate training in the carrying out of those functions and in the exercise and performance of the powers and duties to be conferred on him by virtue of the designation.

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    (5) A chief officer of police shall not designate a person under this section unless he is satisfied that the contractor is a fit and proper person to supervise the carrying out of the functions for the purposes of which that person is designated.
    (6) Powers and duties may be conferred or imposed on a designated person by means only of the application to him by his designation of provisions of the applicable Part of Schedule 4 that are to apply to the designated person; and for this purpose the applicable Part of that Schedule is—

    (a) in the case of a person designated as a detention officer, Part 3; and

    (b) in the case of a person designated as an escort officer, Part 4.

    (7) An employee of the contractor authorised or required to do anything by virtue of a designation under this section—

    (a) shall not be authorised or required by virtue of that designation to engage in any conduct otherwise than in the course of that employment; and

    (b) shall be so authorised or required subject to such restrictions and conditions (if any) as may be specified in his designation.

    (8) Where any power exercisable by any person in reliance on his designation under this section is a power which, in the case of its exercise by a constable, includes or is supplemented by a power to use reasonable force, any person exercising that power in reliance on that designation shall have the same entitlement as a constable to use reasonable force.
    (9) The Secretary of State may by regulations make provision for the handling of complaints relating to, or other instances of misconduct involving, the carrying out by any person designated under this section of the functions for the purposes of which any power or duty is conferred or imposed by his designation.
    (10) Regulations under subsection (9) may, in particular, provide that any provision made by Part 2 of this Act with respect to complaints against persons serving with the police is to apply, with such modifications as may be prescribed by them, with respect to complaints against persons designated under this section.
    (11) Before making regulations under this section, the Secretary of State shall consult with—

    (a) persons whom he considers to represent the interests of police authorities;

    (b) persons whom he considers to represent the interests of chief officers of police;

    (c) the Independent Police Complaints Commission; and

    (d) such other persons as he thinks fit.

    (12) A designation under this section, unless it is previously withdrawn or ceases to have effect in accordance with subsection (13), shall remain in force for such period as may be specified in the designation; but it may be renewed at any time with effect from the time when it would otherwise expire.
    (13) A designation under this section shall cease to have effect—

    (a) if the designated person ceases to be an employee of the contractor; or

    (b) if the contract between the police authority and the contractor is terminated or expires."

    17 Clause 36, page 35, line 29, leave out from "scheme") to "police", in line 30, and insert".
    (1A) A community safety accreditation scheme is a scheme for the exercise in the chief officer's"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 15 to 17.
    Moved, That the House do agree with the Commons in their Amendments Nos. 15 to 17.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    18 Page 35, line 37, after "force" insert "(other than the Commissioner of Police of the Metropolis)"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18. These amendments all relate to consultation in respect of various matters covered in Chapter 1 of Part 4 to the Bill. On Third Reading, your Lordships' House agreed a Liberal Democrat amendment that required a chief officer to consult the "principal local authority" before establishing a community safety accreditation scheme. We had no difficulty with the spirit of that amendment. It was always our intention that there should be such consultation. However, it has been necessary to tidy up the amendment, as it did not define the term, "principal local authority".
    Amendment No. 19 clarifies the nature of the duty on chief officers. In England, they will be required to consult with every district council or London borough in the force area. In Wales, consultation will be with the county councils or borough councils in the force area.
    This group of amendments also provides for consultation with the Mayor of London before the Metropolitan Police Commissioner establishes a community safety accreditation scheme, and before the Home Secretary issues a code of practice under Clause 40 of the Bill. These new consultation requirements recognise the Mayor's London-wide responsibilities for transport, economic development, and the environment, all of which impact on the provisions in this part of the Bill. For example, Transport for London will be funding the commissioner's plans for transport community support officers to work on policing bus routes in the capital.
    Moved, That the House do agree with the Commons in their Amendment No. 18.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENTS
    19 Clause 36, page 35, line 38, leave out "and the principal local authority for that area" and insert "and
    (b) every local authority any part of whose area lies within the police area.
    (3A) Before establishing a community safety accreditation scheme for the metropolitan police district, the Commissioner of Police of the Metropolis must consult with—

    (a) the Metropolitan Police Authority;

    (b) the Mayor of London; and

    (c) every local authority any part of whose area lies within the metropolitan police district.

    (3B) In subsections (3)(b) and (3A)(c) "local authority" means—

    (a) in relation to England, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly, and

    (b) in relation to Wales, a county council or a county borough council"

    20 Clause 38, page 37, line 23, leave out "or accreditation under section 35 or" and insert "under section 35 or (Police powers for contracted-out staff or his accreditation under section"
    21 Page 37, line 27, after "35" insert "or (Police powers for contracted-out staff"
    22 Page 37, line 37, after "35" insert "(Police powers for contracted-out staff"
    23 Page 37, line 40, at end insert—
    "(4A) Where any person's designation under section (Police powers for contracted-out staff) is modified or withdrawn, the chief officer giving notice of the modification or withdrawal shall send a copy of the notice to the contractor responsible for supervising that person in the carrying out of the functions for the purposes of which the designation was granted."
    24 Page 37, line 46, leave out subsection (6) and insert—
    "(6) For the purposes of determining liability for the unlawful conduct of employees of a police authority, conduct by such an employee in reliance or purported reliance on a designation under section 35 shall be taken to be conduct in the course of his employment by the police authority; and, in the case of a tort, that authority shall fall to be treated as a joint tortfeasor accordingly."
    25 Page 38, line 10, leave out "an employee" and insert "employees"
    26 Page 38, line 11 leave out "member" and insert "employee"
    27 Page 38, line 14, at end insert—
    "(8) For the purposes of determining liability for the unlawful conduct of employees of a contractor (within the meaning of section (Police powers for contracted-out staff)), conduct by such an employee in reliance or purported reliance on a designation under that section shall be taken to be conduct in the course of his employment by that contractor; and, in the case of a tort, that contractor shall fall to be treated as a joint tortfeasor accordingly.
    (9) For the purposes of determining liability for the unlawful conduct of employees of a person with whom a chief officer of police has entered into any arrangements for the purposes of a community safety accreditation scheme, conduct by such an employee in reliance or purported reliance on an accreditation under section 37 shall be taken to be conduct in the course of his employment by that employer, and, in the case of a tort, that employer shall fall to be treated as a joint tortfeasor accordingly."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 19 to 27.
    Moved, That the House do agree with the Commons in their Amendments Nos. 19 to 27.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    28 After Clause 38, insert the following new clause—
    "Railway safety accreditation scheme

    (1) The Secretary of State may make regulations for the purpose of enabling the chief constable of the British Transport Police Force to establish and maintain a scheme ("a railway safety accreditation scheme").

    (2) A railway safety accreditation scheme is a scheme for the exercise in, on or in the vicinity of policed premises in England and Wales, by persons accredited by the chief constable of the British Transport Police Force under the scheme, of the powers conferred on those persons by their accreditation under that scheme.

    (3) The regulations may make provision—

    (a) as to the purposes for which a railway safety accreditation scheme may be established;

    (b) as to the procedure to be followed in the establishment of such a scheme; and

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    (c) as to matters for which such a scheme must contain provision.

    (4) The regulations may make provision as to the descriptions of persons who may be accredited under a railway safety accreditation scheme and as to the procedure and criteria to be applied for the grant of any accreditation under such a scheme.

    (5) The regulations may make provision as to the powers which may be conferred on a person by an accreditation under such a scheme.

    (6) Subject to subsection (7), no regulations made by virtue of subsection (5) shall permit a power to be conferred on a person accredited under a railway safety accreditation scheme which could not be conferred on an accredited person under a community safety accreditation scheme.

    (7) The regulations may provide that the powers which may be conferred on a person by an accreditation under a railway safety accreditation scheme include the powers of a constable in uniform and of an authorised constable to give a penalty notice under Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (fixed penalty notices) in respect of the following offences—

    (a) an offence under section 55 of the British Transport Commission Act 1949 (c. xxix) (trespassing on a railway);

    (b) an offence under section 56 of that Act (throwing stones etc. at trains or other things on railways).

    (8) In relation to a person accredited under a railway safety accreditation scheme, the regulations may apply, with such modifications as may be prescribed by them, any provision of this Chapter which applies in relation to an accredited person.

    (9) Before making regulations under this section the Secretary of State shall consult with—

    (a) persons whom he considers to represent the interests of chief officers of police;

    (b) the chief constable of the British Transport Police Force;

    (c) persons whom he considers to represent the interests of police authorities;

    (d) the British Transport Police Committee;

    (e) persons whom he considers to represent the interests of local authorities;

    (f) the Mayor of London; and

    (g) such other persons as he thinks fit.

    (10) In this section - "local authorities" means district councils, London borough councils, county councils in Wales, county borough councils and the Common Council of the City of London; and "policed premises" has the meaning given by section 53(3) of the British Transport Commission Act 1949 (c. xxix)."

    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28.
    This new clause will allow the British Transport Police to set up a railway safety accreditation scheme. The scheme will be closely modelled on our proposals for community safety accreditation schemes. It will allow the British Transport Police to benefit from the provisions in the Bill concerning community safety accreditation schemes. The clause creates two additional powers specific to the problems of safety on or near railways available to be conferred on persons accredited under a railway safety accreditation scheme. They are the powers to issue on-the-spot fixed penalty notices for the offences of trespassing on a railway and throwing stones at trains.
    In Committee, my noble friend Lord Faulkner of Worcester moved an amendment designed to bring the British Transport Police within the provisions in Part 4 of the Bill. I trust that my noble friend will welcome
    94
    the amendment—sadly, he is not in his place—and that it will be welcomed by other noble Lords who spoke in support of his amendment in March.
    Moved, That the House do agree with the Commons in their Amendment No. 28.(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    29 Clause 39, page 38, line 16, leave out from beginning to end of line and insert—
    "(1) Section 96 of the Road Traffic Regulation Act 1984 (c. 27) (additional powers of traffic wardens) shall be amended as follows.
    (2) In subsection (2)(c)(powers under the Road Traffic Act 1988 (c. 52) which may be conferred on traffic wardens), after sub-paragraph (i) there shall be inserted—
    "(ia) section 67(3)(which relates to the power of a constable in uniform to stop vehicles for testing);".
    (3) In subsection (3)"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 29. The amendment covers the changes made in another place to the powers available to designated and accredited persons under Schedules 4 and 5. It also further tweaks the powers available to traffic wardens.
    The last time the Bill was in this House, there was extensive consideration of the enforcement powers that we proposed to extend to community support officers and accredited community safety officers. That consideration led, ultimately, to the removal by your Lordships' House of the powers of detention in Schedules 4 and 5. We debated long and hard the issues concerning the detention powers that would be exercised by community support officers—police authority employees—with the right to use reasonable force and by the wider police family—accredited organisations—without the use of reasonable force.
    The issue is how we give such people's enforcement powers appropriate teeth. Without the ability to identify the suspected offender, it will be difficult to enforce, say, a fixed penalty notice or to gather evidence for an anti-social behaviour order. What offender will identify himself to a CSO if he knows that failure to do so is unlikely to lead to further action? It is important to give those who will deal with even seemingly low-level offences the ability to identify offenders. The Met believes that it is essential to the effectiveness of CSOs.
    We accept that there is concern about making available a power to detain suspects to those who are not sworn constables. We weighed those concerns, expressed in both Houses, against the need for CSOs and accredited individuals to be effective. Consequently, in another place we restored to the Bill the power for accredited persons to request the name and address of someone who commits an offence. That was part of the power of detention that was lost from Schedule 5. As a result of those concerns, we have not sought to restore the power of detention to accredited individuals.

    95
    It remains the case that failure to give a true name and address will be an offence that could be handled by the police. Noble Lords opposite accept that accredited persons should have powers to issue fixed penalty notices for dog fouling and dropping litter. If an accredited person is to issue such a notice, he must be able to require the offending dog owner or litter lout to give his name and address. We cannot sensibly confer one power without the other. It is important that CSOs have the ability to detain an offender until the arrival of a constable. The Metropolitan Police, in particular, have made it clear to us that they see the power of detention to be an essential part of the CSO scheme in London. We have therefore reintroduced the detention power for CSOs.
    At the same time, the Government are keen to allay any remaining concerns about conferring the power of detention on non-police officers. We have therefore set on record our commitment to pilot the power before it is made available to all forces. Sir Keith Povey, Her Majesty's Chief Inspector of Constabulary, has agreed to report on the evaluation of the pilots, and a copy of his report will be laid before Parliament. The pilots will run for two years in up to six forces, including the Met. I am confident that the detention power is appropriate, proportionate and workable, and the Met are confident that it is workable and necessary. The report of the pilots will, I anticipate, bear those views out.
    I turn to Amendments Nos. 29, 73, 109 and 142. At present, only the police have a general power to stop vehicles and only the police and traffic wardens have a power to direct traffic. That means that police officers must be employed to stop vehicles even though their only function is to flag vehicles down. The amendments will free up police officers to concentrate on their core activities.
    The Bill already removes restrictions on traffic wardens' power to stop. As traffic wardens already have a power to direct traffic, they will therefore now be able to undertake escorting duties. The amendments make it clear that their power to stop includes a power to stop vehicles for tests of their roadworthiness and compliance with construction and use regulations. That will benefit the other agencies and hauliers, as they will have a more guaranteed service. The amendments will also give community support officers and accredited persons a limited power to stop vehicles and direct traffic. The power will be solely for the same escorting and testing purposes.
    The amendments will allow for local authority parking attendants to be given the power to stop traffic for those specific purposes. It would not be necessary to confer on such local authority traffic personnel any of the other powers that may or may not be conferred on other accredited persons within the force area. They can be accredited and trained for the use of the power to stop traffic only. The amendments will free up police time for crime reduction, facilitate the enforcement of other legislation, promote road safety and provide a better service to other interests. I commend them to the House.
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    I confess to being somewhat surprised by the opposition from the Liberal Democrat Benches to Amendment No. 142. When it was debated on Report in another place, along with the parallel amendment to Schedule 4, the Liberal Democrat Front Bench home affairs spokesman, the honourable Member for Lewes, Mr Norman Baker, said:
    "The Government amendments seem eminently sensible. I have no problem with them. I am happy to support them".—[Official Report, Commons, 9/7/02; col. 816.]
    The other amendments in the group tidy up the powers of investigating officers, detention officers and escort officers.
    Moved, That the House do agree with the Commons in their Amendment No. 29.—(Lord Falconer of Thoroton.)
    Lord Dholakia: My Lords, the amendment is grouped with Amendment Nos. 140A and 142A, to which I shall speak.
    We opposed this aspect of the Bill on Report. Despite our efforts in the House of Commons, the issue remains unresolved. The noble Baroness, Lady Anelay of St Johns, has indicated that she is unable to support us on the amendment. However, I note that she still has concerns about the issue.
    Plans for accredited officers employed by a range of organisations are wrong in principle and practice. The public may welcome having extra eyes on policing matters, but the scheme is bound to cause muddle in practice. There is also a serious concern that there is no independent oversight of complaints against such officers. It is of paramount importance that anybody employed by the police or supporting the police should be subject to an independent complaints procedure, just like the police themselves.
    The amendment would improve the Bill. We do not oppose the proposals to have community support officers. That was shown in the quotation that the Minister used. We suggested such a scheme in our manifesto and have always supported the principle. Almost all research points to the fact that fear of crime is greater than crime itself. Society is entitled to protection, and there must be no ambiguity. That would be more meaningful if the vision were based on simplicity, accountability, efficiency and effectiveness. We all recognise that crime is not simply a matter for the police. All of us are involved, and we are entitled to every available help to tackle it.
    The starting point of my argument is that our police are probably the best in the world and that we continue to train them to be even better. Training is an essential element. The police have far-reaching powers that could oppress citizens if wrongly used. Yet we will have community support officers with substantial powers but little training.
    Any arrangement should be simple and effective. It should encompass all officers who are not police officers, and it should include traffic wardens. In the House of Commons, the Minister said that we might get to that position in the long run. Surely, we should get it right in the first place. The danger of the

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    Government's proposal is that it will not offer simplicity. People will have different powers according to where in the country they operate. Borough or district boundaries may cross, and the powers could be different on either side of the road.
    The question uppermost in my mind is that of accountability, especially of accredited officers who are not even employed by a public authority. How do we measure efficiency and effectiveness—the Government's key indicators—if the public is not sure what powers they have? The questions will arise as to who employs whom and where one lodges a complaint, if need be.
    We attempted to ensure that CSOs, as well as being employed by the police, could also be employed by local authorities. Therein lies the democratic accountability which is lacking in the Government's proposals. It would also help to cement the Government's initiative on crime and disorder partnerships. This would be welcomed by such partnerships. That would be a good way to proceed since crime and disorder partnerships form an essential element of the crime reduction programme.
    The emphasis we place has three main ingredients: they are simpler, they are understandable and they are closer to the community. Let us look at the powers of traffic wardens. Those have been exercised locally. If they apply to traffic wardens, surely the analogy with CSOs is important. Local authorities need a clear role in the kinds of powers that they wish to give to CSOs. We do not dispute that CSOs will have to be approved by the local chief constable and that they would have to be properly trained. Thus police involvement is not ruled out.
    Perhaps I may turn to accredited officers, which is where the problem starts. There is a whole range of bodies with police forces. Does that mean that companies both good and not so good could have employees with police powers? The Government have introduced amendments to include the fragmented railway industry. Does not that sound like the part privatisation of the police? That is for the Government to defend. The question I must pose is that those who employ accredited officers will wish to have them act in the interests of their companies. Where does the general public fit in?
    We will have private companies undertaking public functions without being subject to the independent Police Complaints Commission, which we all approved in the Bill. The IPCA will deal with police officers and CSOs, but it will have no locus on accredited officers employed by the private sector. That must be a recipe for disaster. It is no good for the Government to try to convince us that these are low-level police powers. We do not disagree, but will the general public understand it?
    So there is the scenario: members of the public being confronted by a private sector employee with some police powers. That is unlikely to build the confidence that has stood the test of our policing methods. People are bound to resist enforcement measures which they do not see as coming from a police officer. We do not
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    object to private sector bodies which have trained their staff to be police officers, because there is evidence that some of them have been sworn in as special constables. The authority comes from training. Why are the Government silent on this?
    What we are doing here is giving private sector employees police powers. That is at the heart of our objections. The Government have not thought through this proposal and I trust that, even at this late stage, the Minister will see fit to amend it.
    7.30 p.m.
    Lord Falconer of Thoroton: My Lords, the points put so well by the noble Lord, Lord Dholakia, have been raised and debated fully in the course of the passage of the Bill both through this House and the other place. I understand that what lies at the heart of the noble Lord's objections is the question of accountability and being able to hold those acquiring police powers to account. I wish to make it clear, as it has been made clear on a number of occasions, that before designating or accrediting any person, a chief officer must be satisfied that he is suitable to carry out the functions in respect of which he has been designated or accredited. He must be capable of exercising effectively the powers conferred on him and he must have been adequately trained. Furthermore, a chief officer may modify or withdraw a designation or accreditation at any time.
    CSOs will be accountable in the same way as police officers. In particular, they will be under the direction and control of the chief officer and subject to the new independent police complaints system when it comes into force. Any use of these powers by accredited persons will be subject to a protocol agreed between the chief officer and the employer—for example, a local authority or vehicle inspectorate—that the powers will be used only in strictly controlled circumstances. Finally, it will be a criminal offence to impersonate a designated or accredited person.
    I know that that does not go as far as the noble Lord, Lord Dholakia, would wish, but it provides levels both of protection and accountability. I hope that, in the light of my remarks, the noble Lord will feel able to withdraw his amendment.
    On Question, Motion agreed to
    COMMONS AMENDMENTS
    30 Clause 40, page 38, line 40, after "police;" insert—
    "(fa) persons whom he considers to represent the interests of local authorities;
    (fb) the Mayor of London,"
    31 Page 38, line 46, at end insert—
    "(6) For the purposes of subsection (3)(fa), local authorities" means district councils, London borough councils, county councils in Wales, county borough councils, the Common Council of the City of London and the Council of the Isles of Scilly."
    32 Clause 42, page 39, line 40, after "35" insert "or (Police powers for contracted-out staff)
    33 Page 39, line 40, at end insert";
    "Director General" means—

    (a) the Director General of the National Criminal Intelligence Service; or

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    (b) the Director General of the National Crime Squad,

    "Service Authority" means—

    (a)in relation to employment with the National Criminal Intelligence Service or to its Director General, the Service Authority for the National Criminal Intelligence Service, and

    (b)in relation to employment with the National Crime Squad or to its Director General, the Service Authority for the National Crime Squad."

    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 30 to 33.
    Moved, That the House do agree with the Commons in their Amendments Nos. 30 to 33.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    34 Before Clause 49, insert the following new clause—
    "Persons authorised to take intimate samples from persons in police detention
    (1) For subsection (9) of section 62 of the 1984 Act (persons who may take intimate samples) there shall be substituted
    "(9) In the case of an intimate sample which is a dental impression, the sample may be taken from a person only by a registered dentist.
    (9A) In the case of any other form of intimate sample, except in the case of a sample of urine, the sample may be taken from a person only by—

    (a) a registered medical practitioner, or

    (b) a registered health care professional."

    (2) In section 65 of the 1984 Act (interpretation of Part 5 of that Act), in subsection (1) after the definition of "registered dentist" there shall be inserted—
    "'registered health care professional' means a person (other than a medical practitioner) who is

    (a) a registered nurse; or

    (b) a registered member of a health care profession which is designated for the purposes of this paragraph by an order made by the Secretary of State;".

    (3) After that subsection, there shall be inserted—
    "(1A) A health care profession is any profession mentioned in section 60(2) of the Health Act 1999(c.8) other than the profession of practising medicine and the profession of nursing.
    (1B) An order under subsection (1) shall be made by statutory instrument and shall be subject to annulment in pursuance of a resolution of either House of Parliament."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 34. This amendment and those grouped with it extend to registered healthcare professionals the provision in the Bill for registered nurses to deal with the taking of blood specimens with consent in drink-driving cases. The group of registered healthcare professionals includes registered nurses but goes wider and includes, for example, registered paramedics.
    The new clause, inserted by Amendment No. 34, similarly amends PACE to cover non-drink-drive cases. It allows the full range of registered healthcare professionals to take blood and other intimate samples from suspects at police stations. Making it possible to
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    use the broad range of registered healthcare professionals rather than solely registered nurses is a practical measure that extends the benefits of the new provision already agreed without compromising standards.
    The amendments and the new clause will remove the need to call on the services of a police surgeon in police custody areas and so avoid delays and promote better value for money.
    Moved, That the House do agree with the Commons in their Amendment No. 34.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENTS
    35 Clause 49, page 43, line 26, leave out "nurse" and insert "health care" professional"
    36 Page 43, line 30, at end insert—
    "(2A) In subsection (2) of section II of that Act(interpretation of sections 3A to 10 of that Act), after the definition of "prescribed limit" there shall be inserted—
    "'registered health care professional' means a person (other than a medical practitioner) who is—

    (a) a registered nurse; or

    (b) a registered member of a health care profession which is designated for the purposes of this paragraph by an order made by the Secretary of State.

    (2B) After that subsection there shall be inserted—
    "(2A) A health care profession is any profession mentioned in section 60(2) of the Health Act 1999 (c. 8) other than the profession of practising medicine and the profession of nursing.
    (2B) An order under subsection (2) shall be made by statutory instrument; and any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.""
    37 Page 43, line 31, leave "section 11 of that Act" and insert "that section".
    38 Page 43, line 36, leave out "nurse" and insert "health care professional".
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 35 to 38.
    Moved, That the House do agree with the Commons in their Amendments Nos. 35 to 38.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    39 Clause 50, page 45, line 1, after "patient" insert "no specimen of blood shall be taken from him under section 7A of this Act and".
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 39. This amendment and those grouped with it seek to protect a person unconscious after an accident by providing that a constable cannot ask for a blood specimen to be taken if the medical practitioner with clinical care of the person objects.
    The Bill already makes it lawful, not compulsory, for a medical practitioner to take a specimen when requested if he thinks fit. Clearly it would not be fitting

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    if the practitioner with clinical care objected or if it were against his own medical judgment. Thus it has never been the intention of the Bill to allow a specimen to be taken without consent where the clinician in charge objects. However, we need to ensure as far as possible the equality of treatment between conscious and unconscious patients at which the measures in the Bill are intended.
    At the moment a clinician can object to and so prevent a conscious patient from being required to provide a specimen. Under the terms of the Bill the clinician can also object to and so prevent an unconscious patient being required to consent to analysis of a specimen, but he cannot object to and so prevent the specimen from being taken in the first place. While this is technically allowed in the Bill as originally drafted, it is unlikely to happen in practice: a medical practitioner would not normally take a specimen if the clinician in charge of the patient objected for reasons of medical ethics and professional etiquette. It remains, however, a theoretical possibility. The amendments would remove that possibility.
    Moved, That the House do agree with the Commons in their Amendment No. 39.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENTS
    40 Page 45, line 3, leave out "section 7A of this Act" and insert "that section".
    41 Page 45, line 5, after "proposal" insert "to take the specimen or".
    42 Page 45, line 12, after "that" insert "the taking of the specimen,".
    43 Clause 51, page 46, line 20, leave out "nurse" and insert "health care professional".
    44 Page 46, line 38, leave out "section 16(1)" and insert "subsection (1) of section 16".
    45 Page 46, line 39, at end insert—
    "(6) In subsection (2) of that section (documentary evidence as to consent), after the words "medical practitioner", in both places where they occur, there shall be inserted "or a registered health care professional.".
    46 Clause 52, page 47, line 8, leave out "nurse" and insert "health care professional".
    47 Page 47, line 12, at end insert—
    "(2A) After subsection (9) of that section there shall be inserted—
    "(9A) In this section 'health care professional' means a person (other than a medical practitioner) who is—

    (a) a registered nurse; or

    (b) a registered member of a health care profession which is designated for the purposes of this paragraph by an order made by the Secretary of State.

    (9B)A health care profession is any profession mentioned in section ") of the Health Act 1999 (c. 8) other than the profession of practising medicine and the profession of nursing.
    (9C)An order under subsection (9A)(b) shall be made by statutory instrument, and any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament."".
    48 Page 48, line 23, after "patient" insert "no specimen of blood shall be taken from him under section 31 A of this Act and".
    49 Page 48, line 25, leave out "section 31 A of this Act" and insert "that section".
    50 Page 48, line 27, after "proposal" insert "to take the specimen or".
    51 Page 48, line 34, after "that" insert "the taking of the specimen".
    52 Page 49, line 6, at end insert—
    "(7A) In section 35(3) of that. Act (documentary evidence as to consent) after the words "medical practitioner", in both places where they occur, there shall be inserted "or a registered health care professional".
    (7B) After subsection (2) of section 38 of that Act (interpretation of Chapter 1 of Part 2 of that Act) there shall be inserted—
    "(2A) In this Chapter 'registered health care professional' means a person (other than a medical practitioner) who is

    (a) a registered nurse; or

    (b) a registered member of a health care profession which is designated for the purposes of this paragraph by an order made by the Secretary of State.

    (2B) A health care profession is any profession mentioned in section 60(2) of the Health Act 1999 (c. 8) other than the profession of practising medicine and the profession of nursing.
    (2C) An order under subsection (2A)(b) shall be made by statutory instrument and any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament."."
    53 Page 49, line 7, leave out "section 38 of that Act" and insert "that section".
    54 Page 49, line 13, leave out "nurse" and insert "health care professional".
    55 Clause 55, page 52, line 24, at end insert—
    "(7A) In subsection (10) of that section (penalty for contravention of order), for "shall be" there shall be substituted "is guilty of an offence and"".
    56 Clause 58, page 54, line 32, after "(6)" insert "for the discharge of an order".
    Moved, That the House do agree with the Commons in their Amendments Nos. 40 to 56.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    57 Clause 59, page 55, line 24, leave out from "appeals)," to end of line 25 and insert "after "an anti-social behaviour order" there shall be inserted ", an order under section ID above,".".
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 57. A sex offender order is a civil preventive order made by a magistrates' court. If the police consider that a sex offender has acted in a way that gives serious cause for concern that he may reoffend, then they can apply for an order. The order places a number of prohibitions on the offender designed to prevent him from engaging in behaviour that might lead him to reoffend. For example, he might be prevented from entering children's playgrounds or

    103
    visiting swimming baths. The breach of any of these prohibitions carries a maximum penalty of five years' imprisonment.
    Sex offender orders were provided for in the Crime and Disorder Act 1998 with respect to England and Wales and Scotland and in the Criminal Justice (Northern Ireland) Order 1998 with respect to Northern Ireland. A number of individual cases have highlighted some weaknesses in the existing legislation. This anecdotal evidence is backed up by recently published Home Office research. We have therefore taken the first opportunity to legislate to increase the effectiveness of sex offender orders by introducing a number of new clauses to the Bill.
    The new clauses give greater flexibility to the police in how they apply for and amend sex offender orders; they introduce interim sex offender orders to England, Wales and Northern Ireland and make breach of an order, whichever jurisdiction created it, an offence in the rest of the UK. In effect, they make sex offender orders enforceable throughout the UK.
    Moved, That the House do agree with the Commons in their Amendment No. 57.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENTS
    58 Clause 60, page 55, line 30, leave out from beginning to end of line 38 and insert—
    "(1) This section applies to—

    (a) applications for an anti-social behaviour order; and

    (b) applications for an order under section IB.

    (2) Before making an application to which this section applies, the council for a local government area shall consult the chief officer of police of the police force maintained for the police area within which that local government area lies.
    (3) Before making an application to which this section applies, a chief officer of police shall consult the council for the local government area in which the person in relation to whom the application is to bemade resides or appears to reside.
    (4) Before making an application to which this section applies, a relevant authority other than a council for a local government area or a chief officer of police shall consult—

    (a) the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside; and

    (b) the chief officer of police of the police force maintained for the police area within which that local government area lies.""

    59 After Clause 60, insert the following new clause—
    "Sex offenders: England and Wales
    (1) Section 2 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders) shall be amended as follows.
    (2) in subsection (1) (application for a sex offender order)—

    (a) for "in his police area" there shall be substituted "who he believes is in, or is intending to come to, his police area",

    (b) for "the public" there shall be substituted "the public in the United Kingdom, or any particular members of that public,".

    (3) in subsection (2) (which identifies the court to which an application must be made)—

    (a) for "the magistrates' court" there shall be substituted (a) any magistrates'court; (b) at the end there shall be inserted ", or

    104

    (b) any magistrates' court whose commission area includes any part of the applicant's police area."

    (4) in subsection (4) (the prohibitions which may be imposed), for "the public" there shall be substituted "the public in the United Kingdom or any particular members of that public,".
    (5) In subsection (6) (variation or discharge of the order)—

    (a) after "the applicant" there shall be inserted, "any other relevant chief officer of police",.

    (b) for "the court which made a sex offender order for it" there shall be substituted "the appropriate court for the sex offender order".

    (6) After that subsection there shall be inserted
    "(6A) In subsection (6) above—
    'the appropriate court' means

    (a) the court which made the sex offender order, or

    (b) any magistrates' court whose commission area includes any part of the police area of the applicant or of any other relevant chief officer of police; 'relevant chief officer of police' means a chief officer of police who believes that the defendant is in, or is intending to come to, his police area."

    (7) In subsection (7) (discharge of orders), after "parties" there shall be inserted "and subject to subsection (7A) below".
    (8) After that subsection there shall be inserted—
    "(7A) Where any magistrates' court makes a sex offender order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order is discharged by the making of the subsequent one."
    (9) In subsection (8) (offence for breach of order), for "shall be" there shall be substituted "is guilty of an offence and".
    (10) Subsections (4) to (6) apply in relation to applications and orders under section 2 of the Crime and Disorder Act 1998 (c. 37), whether made before or after the coming into force of this section."
    60 Insert the following new Clause—
    "Interim orders for sex offenders: England and Wales
    (1) After section 2 of the Crime and Disorder Act 1998 (c. 37) there shall be inserted—
    "2A Interim orders: sex offenders

    (1) This section applies where an application for a sex offender order ("the main application') to a magistrates' court has not been determined.

    (2) The applicant may apply by complaint to the court for an interim order, pending the determination of the main application.

    (3) The court may make an interim order prohibiting the defendant from doing anything described in the order if it considers that it is appropriate to do so.

    (4) An interim order

    (a) shall have effect for the period specified in the order;

    (b) shall (if still in force) cease to have effect on the determination of the main application.

    (5) While an interim order is in force, Part 1 of the Sex Offenders Act 1997 (c. 51) shall have effect as if

    (a) the defendant were subject to the notification requirements of that Part; and

    (b) in relation to him the relevant date (within the meaning of that Part) were the date of service of the order.

    (6) The applicant or the defendant may apply by complaint to the court which made the interim order for it to varied or discharged by a further order.

    (7) If without reasonable excuse a person does anything which he is prohibited from doing by an interim order, he is guilty of an offence.

    105

    (8) A person guilty of an offence under subsection (7) above shall be liable—

    (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximums or to both, or

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

    (9) Where a person is convicted of an offence under subsection (7) above, it shall not be open to the court by or before which he is convicted to make an order under subsection (1)(b) (conditional discharge) of section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) in respect of the offence."

    (2) In section 4(1) of that Act (appeals), for "or sex offender order" there shall be substituted, "a sex offender order or an order under Section 2A above"."
    61 Insert the following new Clause—
    "Sex offender orders made in Scotland or Northern Ireland
    After section 2A of the Crime and Disorder Act 1998 (c. 37) (which is inserted by section (Interim orders: sex offenders) there shall be inserted-"2B Sex offender orders made in Scotland or Northern Ireland
    (1) If without reasonable excuse a person does anything in England and Wales which he is prohibited from doing there by—

    (a) an order under section 20(4) below, or

    (b) an order under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)), he is guilty of an offence.

    (2) A person who is guilty of an offence under subsection (1) above shall be liable—

    (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both. or

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

    (3) Where a person is convicted of an offence under subsection (1) above, it shall not be open to the court by or before which he is convicted to make an order under subsection (1)(b) (conditional discharge) of section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) in respect of the offence.-."
    62 Insert the following new Clause—
    "Sex offenders: Scotland
    (1) The Crime and Disorder Act 1998 (c. 37) shall be amended as follows.
    (2) In section 20(1) (application for a sex offender order in Scotland) for "in the area of his police force" there shall be substituted "who he believes is in, or is intending to come to, the area of his police force".
    (3) In section 20(2) (conditions to be fulfilled), for "the public" there shall be substituted "the public in the United Kingdom or any particular members of that public".
    (4) In section 20(3) (court to which application must be made)—

    (a) after "application to" there shall be inserted"—(a)",.

    (b) at the end there shall be inserted "; or (b) the sheriff whose sheriffdom includes any part of the area of the applicant's police force.".

    (5) In section 20(5) (prohibitions which may be imposed), for "the public" there shall be substituted "the public in the United Kingdom, or any particular members of that public,".
    (6) In Section 21(7) (time limit, variation and revocation of order)—

    (a) in paragraph (b), after "revoked" there shall be inserted (in the case of a sex offender order, by the appropriate court for that order),;

    (b) in paragraph (b)(i), after "the order" there shall be inserted "or, in the case of a sex offender order, any other relevant chief constable".

    106
    (7) After that subsection there shall be inserted—
    (7A) In subsection (7) above—
    'the appropriate court' means

    (a) the sheriff who made the sex offender order; or

    (b) the sheriff whose sheriffdom includes any part of thearea of the applicant's police force or of the police force of any other relevant chief constable;'relevant chief constable' means a chief constable who believes that the accused is in, or is intending to come to, the area of his police force."

    (8) After subsection (7A) (inserted by subsection (7)) there shall be inserted—
    "(7B) Where a sheriff makes a sex offender order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order is discharged by the making of thesubsequent one."
    (9) Subsections (5) to (7) apply in relation to applications and orders under section 20 of the Crime and Disorder Act 1998 (c. 37), whether made before or after the coming into force of this section."
    63 Insert the following new Clause—
    "Sex offender orders made in England and Wales or Northern Ireland
    "After section 21 of the Crime and Disorder Act 1998 (c. 37) there shall be inserted-"21A Sex offender orders made in England and Wales or Northern Ireland
    (1) If without reasonable excuse a person does anything in Scotland which he is prohibited from doing there by—

    (a) an order under section 2(3) or 2A above; or

    (b) an order under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/ 2839 (N.I. 20)),he is guilty of an offence.

    (2) A person who is guilty of an offence under subsection (1) above shall be liable—

    (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both.""

    64 Insert the following new clause
    "Sex offender orders: Northern Ireland
    (1) Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/ 2839 (N.I. 20)) (sex offender orders) shall be amended as follows.
    (2) In paragraph (1) (application for a sex offender order)—

    (a) for in Northern Ireland" there shall be substituted "who he believes is in, or is intending to come to, Northern Ireland".

    (b) for "the public" there shall be substituted "the public in the United Kingdom, or any particular members of that public,".

    (3) In paragraph (2) (which identifies the court to which an application must be made), for the words following "1981 to" there shall be substituted "any court of summary jurisdiction".
    (4) In paragraph (4) (the prohibitions which may be imposed), for "the public" there shall be substituted "the public in the United Kingdom, or any particular members of that public,".
    (5) In paragraph (7) (discharge of orders), after "parties" there shall be inserted "and subject to paragraph (7A)-.
    (6) After that paragraph there shall be inserted—
    "(7A) Where a court makes a sex offender order in relation to a person who is already subject to such an order (whether made by that court or another), the earlier order is discharged by the making of the subsequent one."
    (7) Subsection (4) applies in relation to applications and orders under Article 6 of the Criminal. Justice (Northern Ireland) Order 1998 (S.I. 1998/ 2839 (N.I. 20)), whether made before or after the coming into force of this section."
    65 Insert the following new Clause—
    "Interim orders for sex offenders: Northern Ireland
    (1) After Article 6 of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/ 2839 (N.I. 20)) there shall be inserted—
    "6A Interim orders: sex offenders

    (1) This Article applies where an application for a sex offender order ("the main application") to a court of summary jurisdiction has not been determined.

    (2) The applicant may apply by way of complaint under Part VIII of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I.1981/1675 (N.I.26)) to the court for an interim order, pending the determination of the main application.

    (3) The court nay make an interim order prohibiting the defendant from doing anything described in the order if it considers that it is appropriate to do so.

    (4) An interim order—

    (a) shall have effect for the period specified in the order,

    (b) shall (if still in force) cease to have effect on the determination of the main application.

    (5) While an interim order is in force, Part 1 of the Sex Offenders Act 1997 (c. 51) shall have effect as if—

    (a) the defendant were subject to the notification requirements of that Part; and

    (b) in relation to him the relevant date (within the meaning of that Part) were the date of service of the order.

    (6) The applicant or the defendant may apply for the variation or discharge of the interim order by a further order.

    (7) If without reasonable excuse a person does anything which he is prohibited from doing by an interim order, he is guilty of an offence.

    (8) A person guilty of an offence under paragraph (7) shall be liable—

    (a) on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

    (9) Where a person is convicted of an offence under paragraph (7), it shall not be open to the court by or before which he is convicted to make an order under paragraph (1)(b) (conditional discharge) of Article 4 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) in respect of the offence.—

    (2) In Article 7(7) of that Order (sex offender orders: supplemental)—

    (a) after "a sex offender order" there shall be inserted "or an interim order under Article 6A",.

    (b) after "Article 6(6)" there shall be inserted "or 6A(6)"."

    66 Insert the following new Clause—
    "Sex offender orders made in England and Wales or Scotland
    'After Article 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (which is inserted by section (Interim orders for sex offenders: Northern Ireland) above) there shall be inserted—
    "6B Sex offender orders made in England and Wales or Scotland

    (1) If without reasonable excuse a person does anything in Northern Ireland which he is prohibited from doing there by an order under section 2, 2A or 20 of the Crime and Disorder Act 1998 (c. 37) he is guilty of an offence.

    (2) A person who is guilty of an offence under paragraph (1) shall be liable—

    (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both; or

    (b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

    108

    (3) Where a person is convicted of an offence under paragraph (1), it shall not be open to the court by or before which he is convicted to make an order under paragraph (1)(b) (conditional discharge) of Article 4 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) in respect of the offence.—

    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 58 to 66.
    Moved, That the House do agree with the Commons in their Amendments Nos. 58 to 66.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    67 After Clause 62, insert the following new clause—
    "Application of the Police (Property) Act 1897 to NCS
    (1) After section 2 of the Police (Property) Act 1897 (c. 30) there shall be inserted—
    "2A Application to NCS

    (1) This Act applies to property which has come into the possession of the National Crime Squad as it applies to property that has come into the possession of the police.

    (2) In relation to property that has come into the possession of the National Crime Squad—

    (a) the reference in section 1(1) to an officer of police is a reference to a member of that Squad, and

    (b) references in section 2 to the property remaining in the possession of the police are references to its remaining in the possession of that Squad.

    (3) The power to make regulations under section 2 has effect in relation to property that has come into the possession of the National Crime Squad as if—

    (a) the relevant authority for the purposes of subsection (2A) of that section were the Service Authority for that Squad, and

    (b) the reference in subsection (2A)(c) of that section to police purposes were a reference to the purposes of that Squad."

    (2) In section (2) of that Act (regulations), for subsection (2B) there shall be substituted-"
    (2B) The relevant authority for the purposes of subsection (2A) is the police authority."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 67. The new clause was introduced in another place by the Government to give effect to one of the recommendations made by the Home Affairs Committee in its report on the Bill.
    The Police (Property) Act 1897 deals with the disposal of property that comes into police possession during the investigation of a suspected offence. Property may be sold or kept for use by the police. The proceeds of the sale are paid to the police authority. The clause extends the 1897 Act to cover the National Crime Squad. I commend the amendment to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 67.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    68 Clause 67, page 62, line 47, at end insert
    "and, in a case where the power to make provision with respect to qualification for appointment as a constable or as a special constable, or for membership of a force, Service or Squad, is exercisable by any such regulations as are mentioned in that subsection, the regulations made must impose requirements with respect to all the matters mentioned in paragraphs (a) and (b)."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 68. The purpose of Clause 67 is to remove unnecessary barriers to recruitment and allow police forces to select people on merit rather than on irrelevant factors that have no bearing on their ability to do the job. The clause also addresses the current anomaly whereby Irish citizens can become police officers while other EC nationals are barred.
    The effect will be to open up the police service to British citizens, EC nationals and to Commonwealth citizens and foreign nationals who are living here free of restrictions. It will widen the pool of potential recruits, helping the Police Service to improve its diversity and reflect better our society.
    In earlier debates, several noble Lords, among them the noble Lords, Lord Renton and Lord Monson, expressed concern that Britain could be policed by people who did not have sufficient command of the English language or had little knowledge of this country. It had also been suggested that we should set a minimum residence period for foreign applicants before they could apply. Three and seven years were mentioned.
    Our response was that setting a minimum period of residency is rather arbitrary and very difficult to monitor. The same effect can be achieved by requiring foreign nationals and Commonwealth citizens to be resident here free of restrictions. Normally, residence is not attracted until people have lived here for a minimum of 12 months—often considerably longer.
    While we think that noble Lords' fears are misplaced, nevertheless, in response to those concerns we have now provided for regulations to be made which must impose requirements as to competence in English and immigration status. It is our intention that the regulations will include a requirement for applicants to be lawfully settled in the UK free of restrictions and able to communicate effectively in oral and written English.
    We also need the ability to reserve particular posts in the interests of national security. However, it would not be appropriate to make this provision mandatory as it would not be needed by all the police forces which this clause covers. The provision should be retained to reserve specific posts only as necessary. I commend the amendment to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 68.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENT
    69 After Clause 79, insert the following new clause—
    "Duties under the Health and Safety at Work etc. Act 1974
    (1) The following enactments shall be amended in accordance with subsections (2) and (3)—

    (a) section 51A of the Health and Safety at Work etc. Act 1974 (c. 37) (application of Part 1 of that Act to the police);

    (b)section 49A of the Employment Rights Act 1996 (c. 18) (right of police officers not to suffer a detriment in relation to health and safety at work issues); and

    (c)section 134A of that Act (right of police officers not to be unfairly dismissed in relation to health and safety at work issues).

    (2) In subsection (1 of each of those sections, for "officer" there shall be substituted "authority".
    (3) For subsection (2) of each of those sections, there shall be substituted-"
    (2) In this section 'the relevant authority' means—

    (a) in relation to a member of a police force, a special constable appointed for a police area or a police cadet appointed by a chief officer of police, the police authority or, in the case of a combined area in Scotland, the police board (within the meaning of the Police (Scotland) Act 1967 (c. 77));

    (b) in relation to a person appointed as a police member of the National Criminal Intelligence Service, the Service Authority for that service;

    (c) in relation to a person appointed as a police member of the National Crime Squad, the Service Authority for that squad;

    (d) in relation to any other person holding the office of constable or an appointment as police cadet the person responsible for maintaining the body of constables or police cadets in question.

    (2A) The Commissioner of Police for the City of London shall be treated for the purposes of this section as if he were a member of the City of London police force."
    (4) After subsection (2A) of section 51A of the Health and Safety at Work etc. Act 1974 (c. 37) (which is inserted by subsection (3)) there shall be inserted—
    "(2B) The following provisions (which impose the same liability for unlawful conduct of constables on persons with their direction and control as would arise if the constables were the employees of those persons) do not apply in relation to any liability arising in respect of a contravention of this Act—

    (a) section 88(1) of the Police Act 1996 (c. 16);

    (b) section 97(9) of that Act;

    (c) section 42(1) of the Police Act 1997 (c. 50);

    (d) section 86(1) of that Act;

    (e) paragraph 7(1) of Schedule 8 to that Act;

    (f) section 39 of the Police (Scotland) Act 1967 (c. 77), and

    (g) paragraph 14(1) of Schedule 3 to the Criminal Justice and Police Act 2001 (c. 16).

    (2C) The provision which may be made by health and safety regulations includes in particular—

    (a) provision which, for the purposes of this Part specified in the regulations, treats the acts or omissions of a chief officer as if they were acts or omissions of the relevant authority in relation to the constables or police cadets under that officer's direction and control.

    (b) provision which treats premises under the control of a chief officer as premises under the control of the relevant authority in relation to that officer.

    (2D) In subsection (2C) 'chief officer' means—

    (a) chief officer of police;

    (b) the Director General of the National Criminal intelligence Service,

    (c) the Director General of the National Crime Squad; or

    111

    (d) any other person having direction and control of a body of constables or police cadets."

    (5) In each of paragraphs (a), (b) and (c) of subsection (3) of that section, for "chief officer of police there shall be substituted "police authority".
    (6) In subsection (4) of that section, for "or (c)" there shall be substituted "(c) or (d)".
    (7) Section 5 of the Police (Health and Safety) Act 1997 (c. 42) (payments by police authorities etc. out of relevant funds in relation to contraventions of health and safety legislation) shall cease to have effect.
    (8) An order bringing this section into force may make such savings and transitional provisions as the Secretary of State thinks fit."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 69. The amendment, which received cross-party support when introduced at the Report stage in another place, has the effect of deeming police authorities and, in Scotland, police boards, to be employers of police officers for the purposes of health and safety legislation. Equivalent provision is made for the National Criminal Intelligence Service and the National Crime Squad, where the service authority for each body will be deemed to be the employer of police officers for this purpose.
    Health and safety legislation, as it currently applies to the police, treats chief officers as the employers of police officers. This has created an anomaly whereby the chief officers of forces are personally liable where they are prosecuted as employers for alleged breaches of health and safety legislation. This situation arises because forces are not bodies corporate and consequently are not legal entitles in their own right.
    As a result, the chief officer may end up in the dock in a personal capacity rather than as the representative of his or her own force. If convicted, the chief officer would incur a criminal record. That is an invidious position in which to put a chief officer. What is more, it can damage the image of policing to no useful purpose.
    Following extensive consultation with the Association of Chief Police Officers, the Association of Police Authorities and the Health and Safety Executive, we are, by these amendments, transferring the employers' liability for health and safety to the police authority. That will bring the position in respect of police officers into line with that which already exists for police support staff where police authorities are the employer.
    We will negotiate with ACPO, the APA and the Health and Safety Executive detailed arrangements, setting out the respective responsibilities of chief officers and police authorities for health and safety matters within the framework of police authority responsibilities and powers under the Police Act 1996.
    We will enshrine these arrangements in a statutory code of practice. The code will make clear that police authorities are responsible for ensuring that chief officers have in place suitable arrangements for dealing with health and safety issues, and that police authorities can call for reports if not satisfied that chief officers are carrying out their responsibilities in this area. The code will further provide that chief officers,
    112
    rather than police authorities, will be responsible as now for carrying out health and safety risk assessments. I commend the amendment to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 69.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    COMMONS AMENDMENTS
    70 Clause 89, page 85, line 30, leave out "40(7)"
    71 Clause 92, page 86, line 25, leave out "sections 84," and insert
    (a) section 84, the entries in Schedule 8 relating to the Housing Act 1985 (c. 68), the Housing Act 1988 (c. 50), paragraphs 51 and 59 of Schedule 27 to the Greater London Authority Act 1999 (c. 29) and paragraph 74 of Schedule 6 to the Criminal Justice and Police Act 2001 (c. 16) and section 91(2) (so far as relating to those entries); and (b) sections"
    72 Page 86, line 31, at beginning insert "Sections (Sex offender orders: Scotland) and (Sex offender orders made in England and Wales or Northern Ireland"
    73 Page 87, line 6, leave out "96(3)" and insert "96
    74 Page 87, line 12 leave out subsection (11)
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 70 to 74.
    Moved, That the House do agree with the Commons in their Amendments Nos. 70 to 74.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.
    7.45 p.m.
    The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, I am advised that Amendments Nos. 75 to 75D should be taken en bloc.
    COMMONS AMENDMENTS
    75 Schedule 1, page 91, line 41, at end insert—
    "Directions as to action plans
    3A (1) After section 31 there shall be inserted
    "31A Power to give directions as to action plans

    (1) This section applies where an inspection report made to the Secretary of State states -

    (a) that, in the opinion of the person making the report, the whole or any part of NCIS is, whether generally or in particular respects, not efficient or not effective; or

    (b) that, in that person's opinion, the whole or a part of NCIS will cease to be efficient or effective, whether generally or in particular respects, unless remedial measures are taken.

    (2) The Secretary of State may, after consultation with the Scottish Ministers, direct the NCIS Service Authority to submit to the Secretary of State a plan ('an action plan') for taking remedial measures in relation to anything that the Secretary of State considers relevant to the matters as to which he is satisfied as mentioned in subsection (1).

    (3) If the NCIS Service Authority is directed to submit an action plan, that authority shall direct the Director General of NCIS to prepare a draft of it and to submit it to the NCIS Service Authority for that authority to consider.

    (4) The NCIS Service Authority, on considering a draft action plan submitted to it under subsection (3) may submit the plan to the Secretary of State, with or without modifications.

    113

    (5) If the NCIS Service Authority proposes to make modifications to the draft of the action plan submitted under subsection (3), it must consult with the Director General of NCIS.

    (6) On considering an action plan submitted to him in accordance with a direction under this section, the Secretary of State may, if he is of the opinion that the remedial measures contained in the action plan submitted to him are inadequate, notify the NCIS Service Authority and the Director General of NCIS of that opinion and of his reasons for it.

    (7) In forming an opinion for the purposes of subsection (6), the Secretary of State must consult with the Scottish Ministers.

    (8) If the NCIS Service Authority is notified under subsection (6) -

    (a) it shall consider, after consultation with the Director General of NCIS about the matters notified, whether to revise the action plan in the light of those matters; and

    (b) if it does revise that plan, it shall send a copy of the revised plan to the Secretary of State.

    (9) On giving a direction under this section to the NCIS Service Authority, the Secretary of State shall notify the Director General of NCIS that he has given that direction.

    (10) The period within which a direction to submit an action plan must be complied with is such period of not less than four weeks and not more than twelve weeks after it is given as may be specified in the direction.

    (11) The provision that a direction under this section may require to be included in an action plan to be submitted to the Secretary of State includes -

    (a) provision setting out the steps that the NCIS Service Authority proposes should be taken in respect of the matters to which the direction relates and the performance targets the authority proposes should be met,

    (b) provision setting out that Authority's proposals as to the times within which those steps are to be taken and those standards to be met and the means by which the success of the plan's implementation is to be measured;

    (c) provision for the making of progress reports to the Secretary of State about the implementation of the action plan;

    (d) provision as to the times at which, and the manner in which, any progress report is to be made; and

    (e), provision for the duration of the plan and for it to cease to apply in the circumstances determined by the Secretary of State.

    (12) Nothing in this section shall authorise the Secretary of State or the NCIS Service Authority to direct the inclusion in an action plan or draft action plan of any requirement to do or not to do anything in a particular case identified for the purposes of the requirement, or in relation to a particular person so identified.

    (13) In this section references, in relation to a case in which there is already an action plan in force, to the submission of a plan to the Secretary of State include references to the submission of revisions of the existing plan; and the preceding provisions of this section shall have effect accordingly.

    (14) The NCIS Service Authority shall comply with any direction given to it under this section.

    (15) The Director General of NCIS shall comply with any direction given to him under this section.

    (16) If the Secretary of State exercises his power to give a direction under this section -

    (a) he shall prepare a report on his exercise of that power,

    (b) he shall lay a copy of that report before Parliament; and

    (c) he shall send a copy of that report to the Scottish Ministers.

    (17) The Scottish Ministers shall lay any copy of a report sent to them under subsection (16) before the Scottish Parliament.

    (18) A report under subsection (16) -

    (a) shall be prepared at such time as the Secretary of State considers appropriate; and

    114

    (b) may relate to more than one exercise of the power mentioned in that subsection.

    (19) In this section 'an inspection report' means a report under section 54 of the Police Act 1996 (c. 16), section 33 of the Police (Scotland) Act 1W (c. 77) or section 41 of the Police (Northern Ireland) Act 1998 (c. 32).

    (20) Nothing in this section or in section 30 prevents the Secretary of State in the case of the same inspection report from exercising (whether in relation to the same matter or different matters or at the same time or at different times) both his powers under this section and his powers under that section."

    (2) After section 76 there shall be inserted -
    "76A Power to give directions as to action plans

    (1) This section applies where a report made to the Secretary of State on an inspection under section on 54 of the Police Act 1996 (c. 16) states

    (a) that, in the opinion of the person making the report, the whole or any part of the National Crime Squad is, whether generally or in particular respects, not efficient or not effective; or

    (b) that, in that person's opinion, the whole or a part of the National Crime Squad will cease to be efficient or effective, whether generally or in particular respects, unless remedial measures are taken.

    (2) The Secretary of State may direct the NCS Service Authority to submit to the Secretary of State a plan ('an action plan') for taking remedial measures in relation to anything that the Secretary of State considers relevant to the matters as to which he is satisfied as mentioned in subsection (1).

    (3) If the NCS Service Authority is directed to submit an action plan, that authority shall direct the Director General of the National Crime Squad to prepare a draft of it and to submit it to the NCS Service Authority for that authority to consider.

    (4) The NCS Service Authority, on considering a draft action plan submitted to it under subsection (3) may submit the plan to the Secretary of State, with or without modifications.

    (5) If the NCS Service Authority proposes to make modifications to the draft of the action plan submitted under subsection (3), it must consult with the Director General of the National Crime Squad.

    (6) On considering an action plan submitted to him in accordance with a direction under this section, the Secretary of State may, if he is of the opinion that the remedial measures contained in the action plan submitted to him are inadequate, notify the NCS Service Authority and the Director General of the National Crime Squad of that opinion and of his reasons for it.

    (7) If the NCS Service Authority is notified under subsection (6) -

    (a) it shall consider, after consultation with the Director General of the National Crime Squad about the matters notified, whether to revise the action plan in the light of those matters; and

    (b) if it does revise that plan, it shall send a copy of the revised plan to the Secretary of State.

    (8) On giving a direction under this section to the NCS Service Authority, the Secretary of State shall notify the Director General of the National Crime Squad that he has given that direction.

    (9) The period within which a direction to submit an action plan must be complied with is such period of not less than four weeks and not more than twelve weeks after it is given as may be specified in the direction.

    (10) The provision that a direction under this section may require to be included in an action plan to be submitted to the Secretary of State includes -

    (a) provision setting out the steps that the NCS Service Authority proposes should be taken in respect of the matters to which the direction relates and the performance targets the authority proposes should be met;

    115

    (b) provision setting out that Authority's proposals as to the times within which those steps are to be taken and those standards to be met and the means by which the success of the plan's implementation is to be measured;

    (c) provision for the making of progress reports to the Secretary of State about the implementation of the action plan;

    (d) provision as to the times at which, and the manner in which, any progress report is to be made; and

    (e) provision for the duration of the plan and for it to cease to apply in the circumstances determined by the Secretary of State.

    (11) Nothing in this section shall authorise the Secretary of State or the NCS Service Authority to direct the inclusion in m action plan or draft action plan of any requirement to do or not to do anything in a particular case identified for the purposes of the requirement, or in relation to a particular person so identified.

    (12) In this section references, in relation to a case in which there is already an action plan in force, to the submission of a plan to the Secretary of State include references to the submission of revisions of the existing plan; and the preceding provisions of this section shall have effect accordingly.

    (13) The NCS Service Authority shall comply with any direction given to it under this section.

    (14) The Director General of the National Crime Squad shall comply with any direction given to him under this section.

    (15) If the Secretary of State exercises his power to give a direction under this section—

    (a) he shall prepare a report on his exercise of that power; and

    (b) he shall lay that report before Parliament.

    (16) A report under subsection (15) -

    (a) shall be prepared at such time as the Secretary of State considers appropriate; and

    (b) may relate to more than one exercise of the power mentioned in that subsection.

    (17) Nothing in this section or in section 75 prevents the Secretary of State in the case of the same report under section 54 of the Police Act 1996 (c. 16) from exercising (whether in relation to the same matter or different matters or at the same time or at different times) both his powers under this section and his powers under section 75.

    Procedure for giving directions.
    3B (1) After section 31A (which is inserted by paragraph 3A(I)) there shall be inserted—
    "31B Procedure for giving directions by the Secretary of State

    (1) The Secretary of State shall not give a direction under section 30 or 31 A unless—

    (a) the NCIS Service Authority and the Director General of NCIS have each been given such information about the Secretary of State's grounds for proposing to give that direction as he considers appropriate for enabling them to make representations or proposals under the following paragraphs of this subsection;

    (b) the NCIS Service Authority and the Director General of NCIS have each been given an opportunity of making representations about those grounds;

    (c) the NCIS Service Authority has had an opportunity of making proposals for the taking of remedial measures that would make the giving of the direction unnecessary; and

    (d) the Secretary of State has considered any such representations and any such proposals.

    (2) The Secretary of State may by regulations make further provision as to the procedure to be followed in cases where a proposal is made for the giving of a direction by him under section 30 or 31A.

    (3) Before making any regulations under this section, the Secretary of State shall consult with -

    (a) the Scottish Ministers;

    116

    (a) the NCIS Service Authority,

    (c) the Director General of NCIS;

    (d) persons whom he considers to represent the interests of police authorities in England and Wales;

    (e) persons whom he considers to represent the interests of chief officers of police of police forces in England and Wales; and

    (f) such other persons as he thinks fit.

    (4) Regulations under this section may make different provision for different cases and circumstances.

    (5) A statutory instrument containing regulations under this section shall not be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House.

    31C Procedure for giving directions by the Scottish Ministers

    (1) The Scottish Ministers shall not give a direction under section 30 unless-

    (a) the NCIS Service Authority and the Director General of NCIS have each been given such information about the Scottish Ministers' grounds for proposing to give that direction as they consider appropriate for enabling them to make representations or proposals under the following paragraphs of this subsection;

    (b) the NCIS Service Authority and the Director General of NCIS have each been given an opportunity of making representations about those grounds;

    (c) the NCIS Service Authority has had an opportunity of making proposals for the taking of remedial measures that would make the giving of the direction unnecessary; and

    (d) the Scottish Ministers have considered any such representations and any such proposals.

    (2) The Scottish Ministers may by regulations make further provision as to the procedure to be followed in cases where a proposal is made for the giving of a direction by them under section 30.

    (3) Before making any regulations under this section, the Scottish Ministers shall consult with-

    (a) the Secretary of State;

    (b) the NCIS Service Authority;

    (c) the Director General of NCIS;

    (d) persons whom they consider to represent the interests of police authorities in Scotland;

    (e) persons whom they consider to represent the interests of chief constables of police forces in Scotland; and

    (f) such other persons as they think fit.

    (4) Regulations under this section may make different provision for different cases and circumstances.

    (5) A statutory instrument containing regulations under this section shall not be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Scottish Parliament."

    (2) In section 45 (orders and regulations under Part 1), after "Part" there shall be inserted "or of the Scottish Ministers to make regulations under this Part".
    (3) After section 76A (which is inserted by paragraph 3A(2)), there shall be inserted —
    "76B Procedure for giving directions under sections 75 and 76A

    (1) The Secretary of State shall not give a direction under section 75 or 76A unless-

    (a) the NCS Service Authority and the Director General of the National Crime Squad have each been given such information about the Secretary of State's grounds for proposing to give that direction as he considers appropriate for enabling them to make representations or proposals under the following paragraphs of this subsection;

    117

    (b) the NCS Service Authority and the Director General of the National Crime Squad have each been given an opportunity of making representations about those grounds,

    (c) the NCS Service Authority has had an opportunity of making proposals for the taking of remedial measures that would make the giving of the direction unnecessary; and

    (d) the Secretary of State has considered any such representations and any such proposals.

    (2) The Secretary of State may by regulations make further provision as to the procedure to be followed in cases where a proposal is made for the giving of a direction by him under section 75 or 76A.

    (3) Before making any regulations under this section, the Secretary of State shall consult with -

    (a) the NCS Service Authority;

    (b) the Director General of the National Crime Squad;

    (c) persons whom he considers to represent the interests of police authorities;

    (d) persons whom he considers to represent the interests of chief officers of police, and

    (e) such other persons as he thinks fit.

    (4) Regulations under this section may make different provision for different cases and circumstances.

    (5) A statutory instrument containing regulations under this section shall not be made unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House."."

    75A Line 14, leave out from beginning to end of line 19 and insert -
    "(2) If the Secretary of State considers that remedial measures are required in relation to any matter identified by the report, he may, after consultation with the Scottish Ministers, direct the NCIS Service Authority to submit an action plan to him.
    (2A) An action plan is a plan setting out the remedial measures which the NC IS Service Authority proposes to take in relation to the matters in respect of which the direction is given."
    75B Line 61, leave out "standards" and insert "targets"
    75C Line 120, leave out from beginning to end of line 124 and insert -
    "(2) If the Secretary of State considers that remedial measures are required in relation to any matter identified by the report, he may direct the NCS Service Authority to submit an action plan to him.
    (2A) An action plan is a plan setting out the remedial measures which the NCS Service Authority proposes to take in relation to the matters in respect of which the direction is given."
    75D Line 166, leave out "standards" and insert "targets"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 75 and to Amendments Nos. 75A to 75D thereto standing in my name. I have already spoken to these amendments and I commend them to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 75 and to Amendments Nos. 75A to 75D thereto.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENTS
    76 Clause 91, page 91, line 43, leave out "of the 1997 Act"
    77 Page 92, line 45, leave out "4 the 1997 Act"
    78 Schedule 3, page 115, line 40, after "authority;" insert -
    "(aa) to every person entitled to be kept properly informed in relation to the subject matter of the investigation under section (Duty to provide information for other persons);"
    79 Page 117, line 5, have out sub-paragraph (4) and insert -
    "(4) It shall be the duty of the Commission to notify the persons mentioned in sub-paragraph (4A) if criminal proceedings are brought against any person by the Director of Public Prosecutions in respect of any matters dealt with in a report copied to him under sub-paragraph (2)(c).
    (4A) Those persons are-

    (a) in the case of a complaint the complainant and every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons); and

    (b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that section."

    80 Page 117, line 46, leave out from "(7)(b)" to "setting". in line 48, and insert "the Commission shall give a notification to -

    (a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons); and

    (b) in the case of a recordable conduct matter, to every person entitled to be kept properly Informed in relation to that matter under that section.

    (8A) The notification required by sub-paragraph (8) is one.
    81 Page 117, line 50, leave out "that determination"
    82 Page 118, line 10, leave out from "duty.' to "a" in line 11, and insert " to give a person mentioned in sub-paragraph (8) notification of the findings of the report by sending that person"
    83 Page 118, line 31, leave out sub-paragraph (4) and insert -
    "(4) It shall be the duty of the appropriate authority to notify the persons mentioned in sub-paragraph (4A) if criminal proceedings are brought against any person by Director of Public Prosecutions in respect of any matters dealt with in a report copied to him under sub-paragraph (2)(b).
    (4A) Those persons are-

    (a) in the case of a complaint the complainant and every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons); and

    (b) in the case of a recordable conduct matter, every person entitled to be kept properly informed in relation to that matter under that section."

    84 Page 119, line 3, leave out from "(5)" to "setting", in line 5, and insert "the appropriate authority shall give a notification to-

    (a) in the case of a complaint, to the complainant and to every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons); and

    (b) in the case of a recordable conduct matter, to every person entitled to be kept properly informed in relation to that matter under that section. (6A) The notification required

    85 Page 119, line 7, leave out "that sub-paragraph" and insert- sub-paragraph (5)"
    86 Page 119, line 18, leave out from "duty" to "a" in line 19, and insert " to give a person mentioned in sub-paragraph (6) notification of the findings of the report by sending that person"
    87 Page 119, line 36, after "authority" insert, "every person entitled to be kept properly informed in relation to the complaint under section
    88 Page 120, line 39, after "complainant;" insert -
    "(bb) to every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons);"
    89 Page 120, line 45, after "complainant;" insert -
    "(aa) to every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons);
    90 Page 121, line 35, after "complainant;" insert-
    "(bb) to every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons);"
    91 Page 121, line 41, after -complainant; insert -
    "(aa) to every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons);"
    92 Page 123, line 14, after "complainant" insert "and every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons);
    93 Page 123, line 24, after "complainant" insert "and every person entitled to be kept properly informed in relation to the complaint under section (Duty to provide information for other persons);
    94 Schedule 4, page 123, line 34, leave out "under section 35"
    95 Page 124, line 20, at end insert-
    "Power to detain etc.
    1A (1) This paragraph applies if a designation applies it to any person.
    (2) Where that person has reason to believe that another person has committed a relevant offence in the relevant police area, he may require that other person to give him his name and address.
    (3) Where, in a case a which a requirement under sub-paragraph (2) has been imposed on another person -

    (a) that other person fails to comply with the requirement, or

    (b) the person who imposed the requirement has reasonable grounds for suspecting that the other person has given him a name or address that is false or inaccurate, the person who imposed the requirement may require the other person to wait with him, for a period not exceeding thirty minutes, for the arrival of a constable.

    (4) A person who has been required under sub-paragraph (3) to wait with a person to whom this Part of this Schedule applies may, if requested to do so, elect that (instead of waiting) he will accompany the person imposing the requirement to a police station in the relevant police area.
    (5) A person who-

    (a) fails to comply with a requirement under sub-paragraph (2),

    (b) makes off while subject to a requirement under sub-paragraph (3), or

    (c) makes off while accompanying a person to a police station in accordance with an election under sub-paragraph (4), is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

    (6) In this paragraph "relevant offence", in relation to a person to whom this paragraph applies, means any offence which is -

    (a) a relevant fixed penalty offence for the purposes of the application of paragraph 1 to that person; or

    (b) an offence the commission of which appears to that person to have caused -

    (i) injury, alarm or distress to any other person; or

    (ii) the loss of, or any damage to, any other person's property; but a designation applying this paragraph to any person may provide that an offence is not to be treated as a relevant offence by virtue of paragraph (b) unless it satisfies such other conditions as may be specified in the designation."

    96 Page 124, line 22, leave out "under section 35"
    97 Page 124, line 28, leave out "2" and insert "1A"
    98 Page 124, line 32, after "where" insert "a designation"
    99 Page 124, line 33, leave out "a designation under section 35"
    100 Page 124, line 43, leave out"
    101 Page 125, line 2, leave out "2(2)" and insert "1A(2)"2" and insert "1A"
    102 Page 125, line 7, leave out "2" and insert "1A"
    103 Page 125, line 12, leave out "under section 35"
    104 Page 125, line 23, leave out "under section 35"
    105 Page 125, line 35, leave out "under section 35"
    106 Page 126, line 2, leave out "under section 35"
    107 Page 126, line 7, leave out "under section 35"
    108 Page 126, line 18, leave out "under section 35"
    109 Page 126, line 22, at end insert-
    "Power to stop vehicle for testing
    9A Where a designation applies this paragraph to any person, that person shall, within the relevant police area, nave the power of a constable in uniform to stop a vehicle under subsection (3) of section 67 of the Road Traffic Act 1988 for the purposes of a test under subsection (1) of that section.
    Power to control traffic for purposes of escorting a load of exceptional dimensions
    9B (1) Where a designation applies this paragraph to any person, that person shall have, for the purpose of escorting a vehicle or trailer carrying a load of exceptional dimensions either to or from the relevant police area, the. power of a constable engaged in the regulation of traffic in a road -

    (a) to direct a vehicle to stop;

    (b) to make a vehicle proceed in, or keep to, a particular line of traffic; and

    (c) to direct pedestrians to stop.

    (2) Sections 35 and 37 of the Road Traffic Act 1988 (offences of failing to comply with directions of constable engaged in regulation of traffic in a road) shall have effect in relation to the exercise of those powers for the purpose mentioned in sub-paragraph (1) by a person whose designation applies this paragraph to him as if the references to a constable engaged in regulation of traffic in a road were references to that person.
    (3) The powers conferred by virtue of this paragraph may be exercised in any police area in England and Wales.
    (4) In this paragraph "vehicle or trailer carrying a load of exceptional dimensions" means a vehicle or trailer the use of which is authorised by an order made by the Secretary of State under section 44(1)(d) of the Road Traffic Act 1988."
    110 Page 12& line 24, leave out "under section 35"
    111 Page 126, line 33, leave out "under section 35"
    112 Page 126, line 39, leave out "under section 35"
    113 Page 127, line 21, leave out "under section 35"
    114 Page 128, line 18, leave out "under section 35"
    115 Page 129, line 13, leave out "under section 35"
    116 Page 130, line 2, leave out "under section 35"
    117 Page 130, line 32, leave out "under section 35"
    118 Page 130, line 37, at end insert -
    "Arrest at a police station for another offence
    17A (1) Where a designation applies this paragraph to any person, he shall have the power to make an arrest at any police station in the relevant police area in any case where an arrest -

    (a) is required to be made under section 31 of the 1984 Act (arrest for a further offence of a person already at a police station); or

    (b) would be so required if the reference in that section to a constable included a reference to a person to whom this paragraph applies.

    121
    (2) Section 36 of the Criminal Justice and Public Order Act 1994 (c. 33) (consequences of failure by arrested person to account for objects etc.) shall apply (without prejudice to the effect of any designation applying paragraph 20) in the case of a person arrested in exercise of the power exercisable by virtue of this paragraph as it applies in the case of a person arrested by a constable.
    Power to transfer persons into custody of investigating officers
    17B (1) Where a designation applies this paragraph to any person, the custody officer for a designated police station in the relevant police area may transfer or permit the transfer to him of a person in police detention for an offence which is being investigated by the person to whom this paragraph applies.
    (2) A person into whose custody another person is transferred under subparagraph (1)-

    (a) shall be treated for all purposes as having that person in his lawful custody;

    (b) shall be under a duty to prevent his escape; and

    (c) shall be entitled to use reasonable force to keep that person in his custody.

    (3) Where a person is transferred into the custody of a person to whom this paragraph applies, in accordance with sub-paragraph (1), subsections (2) and (3) of section 39 of the 1984 Act shall have effect as if -

    (a) references to the tranfer of a person in police detention into the custody of a police officer investigating an offence for which that person is in police detention were references to that person's transfer into the custody of the person to whom this paragraph applies; and

    (b) references to the officer to whom the transfer is made and to the officer investigating the offence were references to the person to whom this paragraph applies.

    Power to require arrested person to account for certain matters
    17C Where a designation applies this paragraph to any person -

    (a) he shall have the powers of a constable under sections 36(1)(c) and 37(1)(c) of the Criminal Justice and Public Order Act 1994 (c. 33) to request a person who -

    (i) has been arrested by a constable, or by any person to whom paragraph 20 applies, and

    (ii) is detained at any place in the relevant police area, to account for the presence of an object, substance or mark or for the presence of the arrested person at a particular place; and

    (b) the references to a constable in sections 36(1)(b) and (c) and (4) and 37(1)(b) and (c) and (3) of that Act shall have effect accordingly as including references to the person to whom this paragraph is applied."

    119 Page 130, line 39, leave out "under section 35"
    120 Page 131, line 8, leave out "under 35"
    121 Page 131, line 1, leave out "paragraph 20"
    122 Page 131, line 28, leave out "under section 35"
    123 Page 132, line 2, leave out "under section 35"
    124 Page 132, line 10, leave out "under section 35"
    125 Page 132, line 20, leave out "under section 35"
    126 Page 132, line 31, leave out "under section 35"
    127 Page 132, line 39, leave out "under section 35"
    128 Page 133, line 14, leave out "under section 35"
    129 Page 133, line 20, leave out "under section 35"
    130 Page 133, line 25, leave out paragraph 29
    131 Page 133, line 42, leave out "under section 35"
    132 Page 134, line 33, leave out "under section 35"
    133 Page 134, line 37, after second "that" insert "or any other police"
    134 Page 134, line 38, leave out "a place in that area that is" and insert "any other place"
    135 Page 134, line 40, after "area" insert "or in another police
    122
    area"
    136 Page 134, line 40, at end insert -
    "(1A) Where a designation applies this paragraph to any person, that person may be authorised by the custody officer for any designated police station outside the relevant police area to escort a person in police detention

    (a) from that police station to 4 designated police station in that area; or,

    (b) from that police station to any place in that arm specified by the custody officer and either back to that police station or on to another police station (whether in that area or elsewhere)."

    137 Page 134, line 42, after "(1)" insert "or (1A)"
    138 Page 135, line 25, after "35" insert "or (Police powers "for contracted-out staff"
    139 Page 135, line 29, at end Insert -
    "(1A) In this Schedule "a designation" means a designation under section 35.
    (1B) In Parts 3 and 4 of this Schedule "designation" also includes a designation under section (Police powers for contracted-out staff)."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 76 to 139. I commend them to the House.
    Moved, That the House do agree with the Commons in their Amendments Nos. 76 to 139.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    140 Schedule 5, page 136, line 16, at end insert -
    "Power to require giving of name and address
    1A (1) Where an accredited person whose accreditation specifies that this paragraph applies to him has reason to believe that another person has committed a relevant offence in the relevant police area, he may require that other person to give him his name and address.
    (2) A person who fails to comply with a requirement under sub-paragraph (1) is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
    (3) In this paragraph "relevant offence", in relation to any accredited person, means any offence which is-

    (a) a relevant fixed penalty offence for the purposes of any powers exercisable by the accredited person by virtue of paragraph 1; or

    (b) an offence the commission of which appears to the accredited person to have caused-

    (i) injury, alarm or distress to any other person; or

    (ii) the loss of, or any damage to, any other person's property;but the accreditation of an accredited person may provide that an offence is not to be treated as a relevant offence by virtue of paragraph (b) unless it satisfies such other conditions as may be specified in the accreditation."

    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 140. I spoke to this amendment with Amendment No. 29. I commend it to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 140.—(Lord Falconer of Thoroton.)
    [Amendment No. 140A not moved.]
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    141 Page 136, line 24, leave out sub-paragraph (2)
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 141.
    Moved, That the House do agree with the Commons in their Amendment No. 141.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

    COMMONS AMENDMENT
    142 Page 137, line 23, at end insert—
    "Power to stop vehicle for testing
    7A A person whose accreditation specifies that this paragraph applies to him shall, within the relevant police area, have the power of a constable in uniform to stop a vehicle under subsection (3) of section 67 of the Road Traffic Act 1988 for the purposes of a test under subsection (1) of that section.
    Power to control traffic for purposes of escorting a load of exceptional dimensions
    7B (1) A person whose accreditation specifies that this paragraph applies to him shall have, for the purpose of escorting a vehicle or trailer carrying a load of exceptional dimensions either to or from the relevant police area, the power of a constable engaged in the regulation of traffic in a road-

    (a) to direct a vehicle to stop;

    (b) to make a vehicle proceed in, or keep to, a particular line of traffic; and

    (c) to direct pedestrians to stop.

    (2) Sections 35 and 37 of the Road Traffic Act 1988 (offences of fading to comply with directions of constable engaged in regulation of traffic in a road) shall have effect in relation to the exercise of those powers for the purpose mentioned in sub-paragraph (1) by a person whose accreditation specifies that this paragraph applies to him as if the references to a constable engaged in regulation of traffic in a road were references to that person.
    (3) The powers conferred by virtue of this paragraph may be exercised in any police area in England and Wales.
    (4) In this paragraph "vehicle or trailer carrying a load of exceptional dimensions" means a vehicle or trailer the use of which is authorised by an order made by the Secretary of State under section 44(1)(d) of the Road Traffic Act 1988."
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 142. I have already spoken to this amendment with Amendment No. 29. I commend it to the House.
    Moved, That the House do agree with the Commons in their Amendment No. 142.—(Lord Falconer of Thoroton.)
    [Amendment No. 142A not moved.]
    On Question, Motion agreed to.

    COMMONS AMENDMENTS
    143 Schedule 7, page 41, line 27,at end insert—
    "Rehabilitation of Offenders Act 1974
    3A In section 7(2)(bb) of the Rehabilitation of Offenders Act 1974 (c. 53) limitations on rehabilitations under Act etc.), for "a sex offender order under section 2 or, as the case may be, 20" there shall be substituted "an order under section 2, 2A or 20"."
    144 Page 142, line 26, at end insert-
    "Rehabilitation of Offenders (Northern Ireland) Order 1978
    6A In Article 8(2) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/ 1908 (N.I. 27)) (limitations on rehabilitation underOrder etc.), after sub-paragraph (b) there shall be inserted -
    (bb) in any proceedings on an application for an order under Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) or in any appeal against the making of such an order."."
    145 Page 143, line 6, after "35" insert "or (Police Powers for contracted-out staff)"
    146 Page 143, line 17, leave out "or accredited under section 35 or" and insert "under section 35 or (Police powers for contracted-out staff) or accredited under section"
    147 Page 143, line 26, leave out "31(1) or 32(2)" and insert "17B, 30(1) or 31(2)"
    148 Page 143, line 27, leave out from "detention" to end of line 30
    149 Schedule 8, page 147, line 36, at end insert -
    "Criminal Justice and Public Order Act 1994 (c. 33) Section 54(5)
    150 Page 148, line 4, at end insert -
    "Employment Rights Act 1996 (c. 18) In section 200(1), the words "Part IVA," and 47B."
    151 Page 148, line 6, at end insert -
    "Police (Health and Safety) Act 1997 (c. 42) Section 5"
    152 Page 148, line 15, at end insert -
    "Public Interest Disclosure Act 1998 (c. 23) Section 13"
    153 Page 148, line 16, column 2, leave out "7" and insert "4"
    154 Page 148, line 39, column 2, leave out "51" and insert "151"
    155 Page 148, line 43, column 2, at end insert "Section 80(2)".
    156 In the Title, line 5, after "orders;" insert "to amend the law relating to sex offender orders;"
    Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 143 to 156. I have already spoken to these amendments and I commend them to the House.
    Moved, That the House do agree with the Commons in their Amendments Nos. 143 to 156.—(Lord Falconer of Thoroton.)
    On Question, Motion agreed to.

Business of the House: Enterprise Bill
7.48 p.m.
Lord McIntosh of Haringey: My Lords, the House has resolved that, notwithstanding the terms of Standing Order 39, business may be postponed without notice with the unanimous leave of the House until later in the same day. Unless therefore any noble Lord objects, I beg to move that consideration in Committee of the Enterprise Bill be postponed until

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after the orders and regulations have been dealt with. In doing so, I suggest that the Committee stage of the Enterprise Bill begins not earlier than 8.49 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Terrorism Act 2000 (Cessation of Effect of Section 76) Order 2002
7.50 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft order laid before the House on 27th June be approved [34th Report from the Joint Committee].
The noble Baroness said: My Lords, the order will repeal Section 76 of the Terrorism Act 2000. Section 76 sets the standard for the admissibility of confession evidence in cases before the Diplock courts. In repealing Section 76, the standard set by the Police and Criminal Evidence (Northern Ireland) Order 1989 will apply.
Noble Lords will be aware that Section 76 featured in the first report of the noble Lord, Lord Carlile of Berriew, the independent reviewer of the Terrorism Act. The noble Lord recommended that consideration be given to the need for Section 76 and a consultation exercise was undertaken to gauge views on whether Section 76 should be retained. As a result of that consultation exercise, we are satisfied that Section 76 can and should be repealed.
Noble Lords may wish to raise points and I shall be happy to deal with them. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 27th June be approved [34th Report front the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Glentoran: My Lords, I thank the Minister for bringing the order to the House. The matter was well debated in another place. The Minister, Jane Kennedy, responded fully to questions put by my honourable friend Crispin Blunt and others, except in one area—that is, in regard to the formal advice that the Minister received from the Police Service of Northern Ireland. When my honourable friend pressed the Minister she replied:
"The hon. gentleman makes a fair point. Of course we have had formal advice from the police along the lines that he suggests. Indeed, I received a letter from the PSNI that confirms that. I was satisfied with that letter, but I also wished to test the matter for myself. I have had several conversations with those who take a close interest in the operation of the Act".—[Official Report, Delegated Legislation Standing Committee, Commons, 16/7/02; col. 10.]
Will the Minister place a copy of that letter in the Library of both Houses. Apart from that, I support the order.
Lord Kilclooney: My Lords, the order follows the recommendation of the independent reviewer of the Terrorism Act 2000 that Section 76 should be repealed to conform with the message contained in the Belfast agreement 1998 that emergency powers should be
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removed and that there should be a return to normal security arrangements as early as possible, consistent with the level of threat. In other words, this judgment should be made by Her Majesty's Government consistent with the level of threat. As there are now street riots every night in Belfast, as there was a bomb attack on the Police Service of Northern Ireland last week, a terrorist murder and several other armed terrorist attacks in Belfast last night, is the noble Baroness satisfied that this is consistent with the present level of peace in Northern Ireland?
Baroness Farrington of Ribbleton: My Lords, I should restate to the noble Lord, Lord Kilclooney, the point made by my right honourable friend the Secretary of State for Northern Ireland that no level of violence is acceptable. The underlying point of the noble Lord's question is whether the current level of violence would allow us to pass the order with safety and confidence. The small step that we are taking with the order has been given extremely careful consideration. We have consulted on it and the Police Service of Northern Ireland is of the view that the repeal of Section 76 would have no adverse impact on future prosecutions.
While the security situation has improved dramatically we accept that it is not perfect. The issue before us is whether we can safely repeal Section 76 in those circumstances. We believe that that is possible at this stage.
The noble Lord, Lord Glentoran, raised the issue of the advice that we get in regard to the current situation. We constantly take advice from security advisers, and the Police Service of Northern Ireland are content with the repeal of Section 76.
The noble Lord asked whether a copy of the letter from the Police Service of Northern Ireland, which was referred to in another place, could be placed in the Library. I hope that it will be possible to do that. Perhaps I may write to the noble Lords, Lord Glentoran and Lord Kilclooney, to confirm whether it will be possible to place a copy of the entire letter in the Library. I hope that that answers the points that have been raised.
On Question, Motion agreed to.

Representation of the People (Northern Ireland) (Amendment) Regulations 2002
7.56 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft regulations laid before the House on 26th June be approved [34th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move. In moving the regulations, I wish to speak also to the Northern Ireland Assembly (Elections) Amendment Order 2002. These two pieces of legislation arise from the Electoral Fraud (Northern Ireland) Act 2002 and the Representation of the People Act 2000. I should like to deal, first, with the Assembly elections Order.

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This simply brings the relevant rules for elections to the Northern Ireland Assembly into line with those made for parliamentary elections by the Electoral Fraud (Northern Ireland) Act 2002.
The order is compatible with the European Convention on Human Rights and is being made in exercise of the powers conferred by Section 34(4) of the Northern Ireland Act 1998. The amendments to the rules for elections to the Northern Ireland Assembly will ensure that the returning officer will be satisfied that the date of birth and signature on the declaration of identity that is returned with a postal ballot paper matches the details supplied on registration.
There are two parts to the Representation of the People (Northern Ireland) (Amendment) Regulations. First, they amend the 2001 regulations for Northern Ireland and prescribe the annual canvass form so as to comply with the registration requirements of the Electoral Fraud (Northern Ireland) Act 2002. This requires individuals to provide their date of birth, their signature and their national insurance number, or a statement saying that they do not have one.
The remainder of the regulations implement Section 9 of the Representation of the People Act 2000 in respect of the sale of the electoral register. These mirror the regulations for England, Wales and Scotland. There is no difference, in principle or effect, from the remainder of the United Kingdom. They do, however, differ for organisational reasons, such as where it is necessary to refer to the Chief Electoral Officer, a position particular to Northern Ireland.
Noble Lords will be aware that this section provides for two versions of the electoral registers to be compiled. One will be a full register containing, as now, the names and addresses of every elector. The second will be an edited version containing the details only of those electors who have not indicated on their registration form that they object to their details appearing on the version of the register which is available for commercial purposes.
I should like to draw your Lordships' attention to some of the more important provisions in the regulations.
Regulation 4 prescribes the annual canvass form taking into account the requirements of the Electoral Fraud (Northern Ireland) Act 2002 and will so provide the Chief Electoral Officer with a database of dates of birth, signatures and national insurance numbers.
Regulation 9 amends the parliamentary elections rules by adding the senior smartpass, issued under the Northern Ireland concessionary fares scheme, to the list of documents that may be presented in order to receive a ballot paper.
Regulation 8 provides for the description of those that may apply for an electoral identity card, and Regulation 11 provides for the disclosure of national insurance numbers to the Chief Electoral Officer by the Department for Work and Pensions.
Regulation 21 inserts new regulations to the 2001 regulations—"Part VI Supply of Register etc.". These new regulations deal with the free supply and sale of
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the register of electors. As I have mentioned, they mirror provisions made for England, Wales and Scotland.
These regulations are compatible with the European Convention on Human Rights and are being made in exercise of the powers conferred by the provisions specified in Schedule 1 to these regulations.
In conclusion, I hope that the House can agree that the Northern Ireland Assembly (Elections) (Amendment) Order and the Representation of the People (Northern Ireland) (Amendment) Regulations, in conjunction with the Electoral Fraud Act will play an important part in combating fraud in Northern Ireland and that the provisions on the sale of the register strike the right balance between public and private interest. I commend the order and the regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 26th June be approved [34th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Glentoran: My Lords, I thank the Minister for bringing these two statutory instruments before the House. They largely put in place the Act that we passed some little time ago. I am certain that the regulations and the order will play a considerable part in getting rid of electoral fraud in Northern Ireland. I am sure that they will not achieve that completely, but they will certainly improve the situation significantly.
However, there are one or two small areas of concern. I know that Her Majesty's Government probably share with me the concern about security problems, particularly in relation to the publication and availability of the electoral registers. I note that there are to be two different electoral registers: one to be sold and one to be kept for very restricted use—on which I commend the Government.
I note also that Jane Kennedy in another place said that she understood Members' concerns. I understood from reading her words in Hansard that she would keep the use of the registers under some kind of continuous monitoring. Presumably, if the registers are found to be drifting into the wrong hands, the Government will come forward with another order.
Turning to the draft Northern Ireland Assembly (Elections) (Amendment) Order, I have only one concern. It relates to national insurance numbers. They are clearly covered in the Act. I should merely like to be reassured that the order will in no way weaken their role as it was when the Bill left this House. That was in no small way thanks to the efforts of the noble and learned Lord the Lord Privy Seal in working with various departments to ensure that we were able to achieve this.
I have no hesitation in supporting these statutory instruments.
Lord Smith of Clifton: My Lords, we on these Benches welcome the regulations and the order. We are grateful that the Government accepted the use of national insurance numbers as part of an attempt to

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eliminate or reduce fraud. I endorse much of what the noble Lord, Lord Glentoran, has said. We broadly welcome these statutory instruments and commend their passage.
Lord Rogan: My Lords, I should like to raise two points on which I hope that the Minister will be able to offer some comfort. First, Part 1 of Schedule 2 to the regulations includes a copy of the proposed electoral registration form.
The Government's recent decision to listen to advice and to introduce an electoral identity card was rightly commended by noble Lords. It was also given a widespread welcome in another place. However, the only reference in the draft registration form to the availability of electoral identity cards is by way of a tiny box beside a statement in even smaller print at the bottom of the document. For the benefit of noble Lords who do not have a copy of the regulations, perhaps I may read out the words in small print:
"Voters will be required to produce specified photographic ID…from May 2003. If you do not possess the specified photographic ID and will require an elector identity card which will be issued free of charge please tick this box".
As a businessman all my life, I have always had to read the small print. However, unfortunately, many people do not always take that trouble. Furthermore, the print is so small that it is likely that many elderly voters and those of us who are now 60 years of age or over—who often make the greatest effort to turn out and vote, but who are possibly least likely to have photographic identification—might find it very difficult to read.
In order to maximise the impact of the decision to introduce photographic ID, the Government should now agree to move this statement to the top of the electoral registration form, to ensure that everyone is aware of its existence. Given the tight schedule to which we are now working, I suggest that the Government should move quickly on this matter and rectify what I hope is simply an oversight.
Secondly, following the break-in at Castlereagh police station and the continuing suspicion that Republicans were involved in that incident, there is obvious unease among officers in the Police Service of Northern Ireland about their own personal identity being made known. Indeed, it has been brought to my attention that a number of officers are keen for the Government to consider whether the new legislation ought to require police officers in Northern Ireland to disclose their names and addresses for the purposes of the electoral register, which will be available for public inspection.
This problem has been with us for some time and has been debated previously in this House and elsewhere. However, given that, following Patten, police officers in Northern Ireland may be required to wear name badges on their uniforms, I suggest that the matter has become more pressing than ever.
I go further, and request that the Government consider granting Police Service of Northern Ireland officers and other members of the security forces living
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in Northern Ireland an opt-out clause so that their names need not appear on the electoral register if they so desire. At worst, they should be required to register only at a police station. The same should apply to members of the Royal Irish Regiment. I suggest that any other outcome could leave the Government open to the charge of acting irresponsibly.
Lord Kilclooney: My Lords, I should like first to support the comments of the noble Lord, Lord Rogan. I am surprised that the reference to the electoral identity card is in such small print at the bottom of the registration form. This electoral card is an innovation, and I am surprised that it is being treated in such a flimsy manner at the bottom of the form.
I have two short questions for the Minister. First, sometimes in Northern Ireland, certain deputy electoral officers are hesitant to hand out electoral registers. It is therefore important to have on the record what should happen on particular occasions. When the register is published each year, will that register be made available freely to each Member of the Northern Ireland Assembly?
Secondly, when there is an election to the Northern Ireland Assembly, will the most recent full electoral register be made available to each candidate in the constituency and not just to each party? Sometimes in Northern Irish politics, parties have candidates who do not entirely agree with each other.
Will the Minister also confirm who will receive these full registers if a referendum in Northern Ireland is held not at the same time as an election either to the Assembly or to Parliament?
Lord Fitt: My Lords, I realise that this order and these regulations arc necessary and I reluctantly support them. I believe that the requirement for photographic evidence of identity will cause great hardship for older people living in Northern Ireland. Older people are not known for rushing out to a photographic studio or for having someone come in to take their photograph. Many people have told me that that is so. Who will take older people's photographs? Will they be forced to have photographic identification? Will there be compulsion in the matter? If they refuse to have their photographs taken, will they be hindered in going to the polling stations?
I only reluctantly accept that such a burden has to be placed on the older members of our population in Northern Ireland. However, I recognise the necessity of the provisions. In Northern Ireland, unlike in any other part of the United Kingdom, the overall constitutional position can be changed by electoral fraud. The first past the post system used for elections to this Parliament does not have the same consequences in terms of fraud as the proportional representation system can give rise to in Northern Ireland. Some 20 or 30 votes cast in a certain way could decide who will be eliminated and who will go forward to the next count.
So it is of the utmost importance that this order and these regulations, and the guarantee that they offer, are implemented as effectively as possible in Northern

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Ireland. As I said, however, I question the need to force older people to have their photographs taken as a means of identity.
Baroness Farrington of Ribbleton: My Lords, I shall try to answer all of the questions that noble Lords have asked.
I have every sympathy with the point raised by the noble Lord, Lord Rogan. As one who is in the age group to which he referred when talking about small print—and as someone who has to keep a magnifying glass next to the fridge in order to check the sell-by date of the items inside—I do understand the points he raised. I do not know whether it is possible at this stage to consider putting the item at the top of the form. However, I undertake to raise that issue. Nevertheless, the size of the font has been considered and revised and is now as large as the form will allow. The form is, of course, larger than shown in the schedule to the regulations; it is A4 size. If it will help the noble Lord, I can arrange for a copy of the form to be shown to him. Perhaps we could look at it together, with magnifying glasses if necessary.
Noble Lords, particularly the noble Lord, Lord Fitt, raised the issue of the electoral identity document. The guidance notes accompanying the form clearly state the forms of photographic identification that will be acceptable at the polling station. The question has also been moved to a more prominent position further up the page. The Electoral Commission will be running a publicity campaign to ensure that voters are aware of the changes to the registration process and the move to photographic ID.
I understand the point that the noble Lord, Lord Fitt, made about who will have readily available the sort of information that will enable them to take full advantage of the new proposals. However, I would say to him that there is always a slight tension between tightening up to prevent fraud and ready accessibility for ordinary members of the public who are not interested in fraud at all.
I tell the noble Lords, Lord Glentoran, Lord Kilclooney and Lord Rogan, that the essence of the electoral register is that the names of all those entitled to vote should appear on it. There is no opt-out for police officers or members of the security forces. However, I stress that neither the Secretary of State nor the Chief Electoral Officer have been contacted formally by the Police Service of Northern Ireland about the matter. Should the Police Service of Northern Ireland contact the Government or should a police representative organisation want to raise concerns, the Government would be very happy to consider those representations. I do not think that I can go further than that now. However, I hope that that offers reassurance.
The noble Lord, Lord Glentoran, asked about the detailed implementation of assurances on national insurance provisions. I can assure him that these provisions have not been watered down in any way at all. If he has any remaining concerns and would like, I could write to him with all the details.
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In reply to the noble Lord, Lord Kilclooney, I assure the House that all Members of the Assembly are entitled to a copy of the full register, including copies of the updated register as it changes throughout the year due to rolling registration. Permitted participants will be entitled to receive a copy of the register prior to a referendum.
I hope that that answers noble Lords' questions. I commend the regulations to the House.
On Question, Motion agreed to.

Northern Ireland Assembly (Elections) (Amendment) Order 2002
8.19 p.m.
Baroness Farrington of Ribbleton: My Lords, I beg to move.
Moved, That the draft order laid before the House on 26th June be approved [34th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.49 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended front 8.20 to 8.49 p.m.]

Enterprise Bill
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. In doing so, for the convenience of the House, perhaps I may inform the House that the usual channels have agreed to allocate some extra time to the Committee stage of the Bill. That will be next Monday, 29th July, instead of the Animal Health Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Clause 185 [Cartel offence: penalty and prosecution]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 188:
Page 136, line 12, at end insert—
"() Notwithstanding any other provision of law, no person who enters into a relevant confidential non-disclosure agreement shall commit an offence in relation to entering or putting into effect that agreement.
() In this section—

(a) "relevant confidential non-disclosure agreement" means an agreement entered into by any person to discuss an application for a written notice pursuant to section 183(4) or an application for leniency and to disclose pertinent information subject to obligations of

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confidentiality which prevent the subsequent use or disclosure of such information if no application is subsequently made by a disclosee who would not otherwise have known such information.

(b) "application of leniency" means an application made by any person in relation to an agreement within the meaning of section 2 of the Act or Article 81 of the EC Treaty or any abusive conduct within the meaning of section 9 of the Act or Article 82 of the EC Treaty or any application in any other jurisdiction of similar effect."

The noble Lord said: The purpose of the amendment is to ensure that the no-action leniency regime for individuals under the cartel offence can operate effectively with the leniency regime for companies under the civil infringement of Article 81/ Chapter 1.
It is policy in the European Community and in the United Kingdom to encourage all those involved in cartels to provide information on a cartel under amnesty policies. This policy requires full disclosure of all the relevant facts. Normally the executives are required to give an undertaking to co-operate but an individual who has committed an offence under Clause 181 is unlikely to assist with an application for leniency without obtaining a written notice from the Office of Fair Trading under Clause 185(4).
It may be necessary to assess what has happened in a cartel, for instance, which extends outside the borders of the United Kingdom. In the United States a Supreme Court mandated agreement permits a company or undertaking and individuals who may have personal criminal liability, together with their respective lawyers, to discuss whether any application should be made for amnesty in conditions of confidentiality.
Under the criminal law in the United Kingdom, any information coming into the hands of a defendant may be used at his trial and no agreement not to use it is enforceable. Furthermore, it is a crime of perversion of the course of justice to agree to conceal or do anything which may conceal the fact that a crime of breach of competition law has been committed. For those reasons, I believe that Amendment No. 188 is necessary. I beg to move.
Lord McIntosh of Haringey: I am relieved that the noble Lord, Lord Hunt, referred to Clause 185(4), as the printed amendment says 183(4), which I thought was an error. Subsection (4) provides for the OFT to issue a "no action" letter to an individual who comes forward, whether alone or as part of a corporate application for leniency. The letter will guarantee that the individual will not be prosecuted provided that he meets and abides by certain conditions. The OFT has issued draft guidance, which noble Lords will have received as it was published last week, setting out the terms and including pro forma "no action" letters. The guidance makes it clear that leniency will be granted on the basis of an individual's need for it, and only in so far as it is necessary to gain evidence with which to investigate and prosecute cartels.
The drafting of the amendment does not make its intended effect entirely clear, but having heard the noble Lord, Lord Hunt, I am relieved to know that it
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concerns the position when an individual applies for leniency and the undertaking for which he works is not given an opportunity to make its own leniency application. Normally, the two will run hand in hand, but there are circumstances in which it might be necessary to dissociate them.
For instance, when an individual makes an initial approach to the OFT, some investigation is necessary before it is clear that the activity actually constitutes a cartel. If the OFT were to approach the company at this early stage the employee might be open to reprisals for making the allegation. Or an individual who had minor involvement in a cartel might blow the whistle on senior colleagues who were more deeply implicated. In those circumstances, it would not be a good idea to approach the company. It would tip them oil so that they could destroy evidence, which is not unheard of.
If the undertaking does not stop its involvement in the cartel, or if the undertaking has been a ringleader in the cartel, it will be ineligible for full leniency in any case.
Therefore, it is not appropriate to limit in advance the way in which the OFT can make use of intelligence gained from its leniency programme. But it is required by administrative law to act reasonably in all circumstances. It is also important to bear in mind that the OFT encourages businesses to put in place a compliance programme under which firms would become aware of cartel activity directly, so that a joint approach to the OFT could be made in the first place.
Lord Hunt of Wirral: I am grateful to the Minister for his explanation. In view of his reassurance on the question of reasonableness, in particular, I should like time to reflect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 185 agreed to.
Clause 186 [Extradition]:
Lord Kingsland Lord Kingsland moved Amendment No. 189:
Page 136, line 17, leave out paragraphs (b) and (c).
The noble Lord said: I shall be extremely brief. This is a probing amendment to ask the Government whether they can be specific about the nature of the conspiracy offence and the attempt to commit such an offence. Clause 183 provides for a new offence in statute, the essence of which is a dishonest agreement. Will the Minister say what constitutes conspiracy and attempt, so as to fix criminal liability?
Lord McIntosh of Haringey: The clause is about extradition, but I shall not refer to that as the noble Lord, Lord Kingsland, has not done so. The dishonesty to which he referred is a new offence, which we have discussed, so I shall not go over that ground.
The inchoate offences of conspiracy and attempt are not new. They apply under the Criminal Law Act 1977 and the Criminal Attempts Act 1981 automatically to this offence. UK law recognises that conspiring to commit a crime and an attempt to commit a crime are serious and should not be beyond the reach of the law. Prosecuting such offences is an important aspect of

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deterring criminals and enables investigatory bodies to step in and prevent the crime being implemented and harming potentially millions of customers.
I shall say a word about extradition because there was a misunderstanding about it in the Commons. We are talking about extradition to, not from other countries. The number of countries with whom we have regular extradition is limited. In particular, it is limited to the United States, as those who follow the affairs of Sotheby's and Christies know.
Lord Kingsland: I am most grateful to the Minister for his response. As I said, my main object in moving the amendment was to probe the Minister on the precise nature of the offences of conspiracy and attempt in relation to the substantive offence. I do not know how far the Minister is prepared to speculate about the extent to which individuals would have to be engaged in negotiations on price-fixing before that constituted conspiracy or an attempt.
Lord McIntosh of Haringey: I can best deal with that with an example. Imagine two employees of a single company that is alleged to be part of a cartel and imagine if there were a director and sales manager who were conspiring to fix prices. They would be involved in a conspiracy. That would be an example of a conspiracy if the cartel had taken place; if it were being planned and had not taken place, it would be an attempt. Clearly, it is to the advantage of everyone, including the customers who would suffer if a cartel had effect, if one could proceed against them on that basis. That is why that arrangement has been in law for 25 years.
Lord Kingsland: I am most grateful to the noble Lord for his response, on which I shall reflect. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
On Question, Whether Clause 186 shall stand part of the Bill?
Lord Hunt of Wirral: I turn to the Minister's comments on extradition. We well understand that in this regard we are talking primarily about the United States of America and that we therefore have to tread with a degree of caution because of the double effect about whatever we decide in relation to the Bill. As we extend criminality to cover an offence, a conspiracy to commit such an offence and an attempt to commit such an offence, under the doctrine of dual criminality, a request for extradition, once a country has criminal penalties for an activity, will apply, so far as a country's demands are concerned, where it has equivalent criminal penalties.
Will the Minister please confirm that there is no question of the extradition provisions in the clause applying retrospectively? I imagine that he will be able to confirm that. If so, it would be helpful if he could
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identify exactly what he means when he says that it will not apply retrospectively. Does retrospection apply to a criminal conviction, for example, in the United States in absentia of a United Kingdom subject who is here or to the date of the alleged offence itself?
Following the comments of my noble friend the shadow Lord Chancellor, if we are making criminal a conspiracy or an attempt, it will immediately follow that in the United States there could be an attempt to extradite for a similar category of offence, which goes much wider in the United States than it would here; I refer, for example, to some form of limitation of production. If there was an attempt to limit production, it would be held to be an attempt in the United States although it might not be in this country. As he seeks to balance those two conflicting points, it would be helpful if the Minister would give us some reassurance.
Lord McIntosh of Haringey: On the point of limiting production, limiting a production is already provided for in Clause 183(2)(c). The definition of a cartel is not at issue.
On the issue of retrospection, the answer is that the provisions are not retrospective; the arrangement is determined according to the date of the offence. An offence that was committed before the Act came into force would not be extraditable. I believe that those were the two points on which the noble Lord, Lord Hunt, sought reassurance.
Clause 186 agreed to.
Clause 187 [Investigation of offences under section 183]:
Lord Kingsland Lord Kingsland moved Amendment No. 190:
Page 136, line 27, at end insert "insofar as relevant to the investigation of the offence under section 179 which it is suspected has been committed"
The noble Lord said: This amendment is self-evident. It seeks to focus the power in Clause 187 to the specific circumstances of the alleged offence. In my submission, it does not undermine the clause's intention; it simply makes sure that it has a proper purpose. I beg to move.
Lord Borrie: Is the amendment correct in referring to "section 179" or should it refer to "section 183"?
Lord McIntosh of Haringey: If I can answer for the noble Lord, Lord Kingsland, the amendment is meant to refer to Section 183. The version that went through the Commons referred to "section 179". I make no point of that.
The point I do make is that the noble Lord, Lord Kingsland, is entirely right. The arrangement must be restricted in the way in which he suggests, and it is. Clause 187(2) states that the criminal investigatory powers,
"are exercisable, but only for the purposes of an investigation under subsection (1)".

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Subsection (1) states:
"The OFT may conduct an investigation if there are reasonable grounds for suspecting that an offence under section 183 has been committed".
I hope that that provides what the noble Lord was seeking.
Lord Kingsland: I am most grateful to the noble Lord. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 187 shall stand part of the Bill?
Lord Kingsland: Again, I shall be very brief. I am sure that the noble Lord will recall debate on the last amendment of the second Committee day, when I made a particular reference to Clause 187 and the contrasting use of expressions therein. Clause 187(1) contains the expression,
"if there arc reasonable grounds for suspecting that an offence under section 183 has been committed".
Clause 187(2) contains the expression,
"in any case where it appears to the OFT that there is a good reason to exercise them for the purpose of investigating the affairs".
In short, the discretion exercisable under Clause 187(1) is by way of being an objective discretion, whereas the discretion exercisable under Clause 187(2) is a subjectively exercised discretion.
Perhaps I may ask the Minister whether the following interpretation is what is intended by the Government. Do the Government intend that the decision to make an investigation should be a decision which is predicated on reasonable grounds for suspecting but that thereafter, once those reasonable grounds are present, the means by which the investigation is conducted is based on a subjective view about what appears to be a good reason for exercising a particular power to pursue that investigation? Is that the distinction that the Government seek to make?
Lord McIntosh of Haringey: Nearly. The first part of the proposition is certainly right. The noble Lord, Lord Kingsland, is right in saying that the test for launching an investigation in Clause 187(1) is reasonable grounds for suspecting that an offence has been committed. The test for using powers in Clause 187(2) for the purpose of an investigation under subsection (1) is in any case where it appears to the Office of Fair Trading that there is good reason to exercise them. Therefore, he has described the situation precisely.
The OFT can carry out an investigation if there are reasonable grounds for suspecting that an offence under Clause 183 has been committed. The power of investigation cannot be used unless the threshold has been met. Therefore, the use of the powers is subject to the test in Clause 187(1).
However, whether there are reasonable grounds for suspicion will depend on the information available. Examples of information that could be sources of
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reasonable grounds for suspicion are records of secret meetings or statements from employees or complaints. I do not know that I would call those "subjective", but they will be unearthed only as an investigation under the strict test of Clause 187(1) proceeds. That is why we must have the complication of the succeeding clauses in the Bill. But certainly the noble Lord's principal proposition is entirely correct.
Lord Kingsland: In a sense, subsection (2) of Clause 187 comes before subsection (1). In order to establish whether there are reasonable grounds for suspecting, am I right in thinking that the Government are entitled to move straight to subsection (2) and, on the basis of the subjective test, to probe around?
Lord McIntosh of Haringey: No. As subsection (2) says, that would be the case,
"only for the purposes of an investigation under subsection (1)".
Therefore, subsection (1) is the master, so to speak.
I believe it is being suggested that government could use subsection (2) for fishing expeditions. They cannot because they would have to apply the reasonable suspicion test, and that is subjective. That is why I resisted the word "subjective". Evidence is required.
Lord Kingsland: Subsection (2) can be triggered only by subsection (1)? I am most grateful. In those circumstances, I shall not press the Question whether the clause shall stand part.
Clause 187 agreed to.
Clause 188 [Powers when conducting an investigation]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 191:
Page 136, line 30, leave out from beginning to second ",to" and insert "past and present employees of the business of which the person under investigation is an officer or employee"
The noble Lord said: In Clause 188 we move to the subject of the powers of the Office of Fair Trading when conducting an investigation. Amendment No. 191 would leave out in the second line of subsection (1) the words,
"any other person who it has reason to believe has relevant information",
and insert in their place,
"past and present employees of the business of which the person under investigation is an officer or employee".
In many ways, I simply seek to test the Minister as to why such a wide power of conducting an investigation is necessary. It can cover anyone without limit in deciding whether or not a person may have been involved in the business which is the subject of the investigation. It is a probing amendment and I look forward to hearing the Minister's response. I beg to move.
Lord McIntosh of Haringey: The straightforward answer is that the information relevant to the investigation could be held by undertakings or individuals who are not and never have been formally connected to the business of the person under investigation. One could have difficulty with the

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wording of this amendment. One could ask whether someone was an employee, a former employee, agency staff or a contractor. It could make effective investigations very difficult. But the fundamental answer I give to the noble Lord is that these are not new powers. They are powers comparable to those given to the Serious Fraud Office in the Criminal Justice Act 1987 and to the Office of Fair Trading itself in the Competition Act 1998, and they have not caused any problems.
9.15 p.m.
Lord Peyton of Yeovil: The Minister has used the words, "One could have difficulty". He is referring to the people who will have the powers, if the amendment is passed. I am worried about the people against whom the powers, which seem to be rather sweeping, are exercised. This is not the first time that I have trodden this ground. I did so the other day with as reasonable a man as the noble Lord, the Minister for Science. I had hoped that he might at least recognise some of my anxieties. I felt deeply disappointed and downcast that his reply did not produce a word of comfort.
My anxieties about giving people wide powers to seek information have been greatly increased and enhanced by the recent conduct of the Financial Services Authority, which has stimulated banks, stockbrokers and chartered accountants to check whether clients whom they knew perfectly well may or may not be tempted to engage in money laundering. Many perfectly innocent people are badgered by authority, and people abuse authority—a point that does not really occur to anyone as reasonably minded as the noble Lord who is handling this Bill. It worries me that people in authority, having the power to obtain information, may decide to cast their nets as wide as possible, regardless of how many people that may annoy and irritate.
So far as I am concerned, the Financial Services Authority has been totally unresponsive to complaints, nor does it seem to be aware of the immense irritation that it causes. I cannot believe that those who sent the inquiry forms to me have, as a result of bothering people such as myself, been in any way successful in checking the undesirable habit of money laundering by criminals. The Government should be very careful before granting powers of this kind. They can be quite certain that they will be, and very often are, abused.
Lord McIntosh of Haringey: As the noble Lord well knows, I am instinctively sympathetic to what he says. I have spent all my life complaining about the abuse of authority—of Jacks-in-office, as they may be called. The fact that I am now a Jack-in-office myself has not stopped my objecting to the practice. I regret that I do not know about the FSA case to which the noble Lord has referred; no doubt I should.
My fundamental answer is that which I gave when we discussed the Question of whether Clause 187 should stand part; namely, that any investigation has to be constrained by Clause 187(1), which is that the
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investigatory powers are exercisable only for the purpose of an investigation under that subsection. In other words, there has to be some good reason for it in the first place. I do not know whether the noble Lord, Lord Peyton, is consoled by that, or whether he is consoled by the fact that, as I said in my response to this amendment, these are not new powers at all. They are powers that have been given to the Serious Fraud Office since 1987 and to the Office of Fair Trading since 1998. Although I can never guarantee that they will not be misused, they will not be misused because of any failure of drafting in the Bill.
Lord Peyton of Yeovil: I am much obliged to the noble Lord. It never occurred to me that I should be speaking to someone who would only offer deaf ears to a message. When he says that these are powers which have already been given, that does not set my anxieties at rest at all. They are powers that have been given previously and abused previously.
It would be very satisfactory to me if as a result of this very brief discussion—and I promise not to prolong it—the noble Lord would kindly communicate to the Financial Services Agency the fact that at least a large part of its inquiries have been addressed to people who are very wide of the mark. Therefore, people such as myself with nothing to do with money laundering have been vastly irritated and asked all kinds of absurd questions for no particular reason. As a result, here am I at this hour of the night badgering the Minister to give me an answer. Perhaps he could talk to Sir Howard Davies and tell him that he has personally been inconvenienced by my inquiries and that my inquiries are stimulated by the Financial Services Agency.
Lord Razzall: Before the Minister responds, perhaps he could explain to me what it is that the noble Lord, Lord Peyton, has just said which has any relevance to the Bill?
Lord Peyton of Yeovil: The noble Lord seems to be inquisitive. Perhaps he would kindly read the clause. The Bill is about seeking information. I am merely saying that people who are given powers to seek information occasionally abuse them. I hope that I have got through to the noble Lord's consciousness—difficult as that is.
Lord Razzall: I thank the noble Lord for his polite response to my inquiry. I was not aware at twenty past nine that we were considering the correspondence between the noble Lord and the FSA. I apologise; I have obviously misunderstood the noble Lord's point.
Lord Hunt of Wirral: My noble friend Lord Peyton needs no assistance or even support from me, but there is a great deal in what he says on which I should like to press the Minister a little further.
In supporting the opposition to Amendment No. 191 the Minister said that he cited existing powers as an example of why these powers went no further than the existing powers under the Competition Act and

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those of the Serious Fraud Office. My noble friend Lord Peyton has given an example of where existing powers in his view are being abused. The purpose of the amendment was to try and seek some reassurance from the Minister that here although we are mirroring—and I recognise that—existing powers for the Financial Services Authority, the Serious Fraud Office and so on, we are however dealing with a new cartel offence. That is the importance of the debate.
With the new offence under Clause 183 we shall consider a whole range of powers passing to the Office of Fair Trading in connection with any investigation under Clause 183. I therefore support my noble friend. It is important in the early days of considering these powers to demonstrate that they will be exercised not only under the existing administrative law but also that they will be exercised with considerable discretion in favour of those who are accused.
I rehearse the fact that under Clause 187(1) the investigation can be conducted,
"if there are reasonable grounds for suspecting that an offence may have been committed".
But in Clause 188, which we are now debating, the OFT may by notice in writing require any person who it believes has relevant information.
Lord McIntosh of Haringey: It has reason to believe.
Lord Hunt of Wirral:—whom it has reason to believe has relevant information. My noble friend Lord Peyton is questioning why it is necessary for this extensive power to be worded in such wide terms. Of course, I accept that the Office of Fair Trading will exercise good reason in any step that it may take, but what will be the checks and balances against it? Will there be any objective test; will there be any method by which the person who has received the notice can dispute it on the grounds that he does not have relevant information, or will he have to go to the trouble of responding—as every good citizen should—to the best of his ability, which may involve him in considerable time and trouble? That is the point being made by my noble friend Lord Peyton—not only from the example of his experience with the Financial Services Authority, but also when considering the wide wording that we are being asked to approve. I hope that the Minister will give us further reassurance on that point.
Lord McIntosh of Haringey: Let me refer first to the particular complaint of the noble Lord, Lord Peyton, about the harassment—I think that that is the correct word—to which he was subjected on the issue of money laundering by the Financial Services Authority. I imagine that he had that discussion in the Chamber with my noble friend Lord Sainsbury and that the matter and his views will have already been communicated to the Financial Services Authority. If they have not, I undertake to ensure that they are and that that is investigated. I shall ask to know the outcome, because I need to be satisfied.
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In response to what the noble Lord said before, I said that I could not give an undertaking that that would never happen. These things do happen. What I can give is the undertaking that that cannot happen because it is permitted by the Bill. Not only are the provisions of the Bill not new, they have been in existence for 15 years. I know that that is insufficient consolation to the noble Lord, and, in a sense, I agree with him. But the provisions are quite precise.
In the House of Commons, in response to such concern, we added Clause 188(5). In other words, we made clear that any notice given to someone to answer questions must make clear the subject matter and purpose of the investigation and the nature of the offences created by Section 196. I do not know whether that happened to the noble Lord or whether the Financial Services and Markets Act 2000 gives the same assurance. But we took account of that particular point, raised in Committee in the Commons, and amended the Bill for that purpose. Those powers have for many years been considered necessary for investigations. If someone came up against a brick wall of it being the wrong person—not an employee, for example, as in the case of the previous amendment—a damaging cartel, which we have agreed ought to be criminalised, could get away with it because the investigatory powers were insufficient.
Those powers are in any case constrained by the European Convention on Human Rights and, in many respects, by administrative law. I do not suppose that that answer satisfies the noble Lord, Lord Peyton—to whom I am sympathetic—but it is intended to do so.
Lord Peyton of Yeovil: It is not wholly satisfactory, but the very attitude of the noble Lord eases my anxieties. I am most grateful to him for that. If I may say so, he has quite restored that balance and equanimity that I always wish to retain, which was temporarily disturbed by the noble Lord, Lord Razzall.
9.30 p.m.
Lord Hunt of Wirral: I join my noble friend Lord Peyton in thanking the Minister for his response, which does much to reassure noble Lords on this side of the Committee about the extent to which these powers will be exercised. In fact, it is under this amendment that the restriction to employees would apply. However, the Minister certainly responded to that. My noble friends and I would like time to reflect upon the Minister's words. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 192:
Page 137, line 6, at end insert—
"() Any person of whom information is sought pursuant to this section shall not be required to provide such information, if the provision of that information would infringe his right to silence or his right against self-incrimination or both."
The noble Lord said: This topic also arose at the end of proceedings on the second day of Committee. The terms of both Amendments Nos. 192 and 193 are self-evident. What has prompted them is the confusion in our minds between the role of the OFT as a civil investigator and its role as a criminal investigator. The Minister will note that Clause 187 begins after the title:
"Criminal investigations by OFT".
If the OFT is to make criminal investigations, it must conform not only with Article 6(1) of the human rights convention but also with Article 6(2) and Article 6(3). For that to be satisfied, an additional subsection needs to be added to Clause 188 in the sense set out in Amendments Nos. 192 and 193.
I believe that I drew to the Minister's attention last week the desirability of a proper temporal division of work between the criminal investigations body on the one hand, and the OFT on the other. I believe that it is desirable that the OFT should not move until the criminal investigations body decides that it is going to terminate its investigation. Otherwise, the measures set out in the Bill give insufficient protection to the party being investigated. I beg to move.
Lord McIntosh of Haringey: Perhaps I may return to what we were saying after midnight on Thursday—or rather Friday morning—about the interaction of civil and criminal proceedings. This is really quite important; and, indeed, deserves repetition. We already have the civil law in these cases: we have it under the Competition Act 1998 and, fundamentally, it targets the undertaking. Clearly, you have to target undertakings for cartels.
However, the criminal offence in the Bill, which is the extension of what I have just described, targets individuals. In the existing state of law in other respects, you also have to target individuals. The civil powers under the Competition Act focus on infringements by undertakings. The cartel provisions in the Enterprise Bill deal with criminal actions by individuals. One single cartel could involve both; in other words, it could involve both an undertaking and individuals.
The OFT will collect evidence for a new offence to criminal standards to ensure that it is admissible in a criminal trial. OFT investigators will abide by the various codes of conduct created by the Police and Criminal Evidence Act 1984 for the investigation of criminal offences. Suspects will be cautioned before being interviewed by OFT officers investigating the criminal offence. Clause 193, to which we will come shortly, will ensure that statements that are compelled under powers in the Competition Act 1998 may not be used as evidence in criminal proceedings, except—the point made by the noble Lord, Lord Kingsland, on Thursday night—in limited circumstances that we can go into. In conducting civil and criminal investigations, the OFT is in a similar position to that of Customs and Excise and the Inland Revenue, each of which also successfully carries out successful parallel civil and criminal investigations.
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The amendments in this lengthy group would provide a right to silence, a right against self-incrimination and a right to legal representation for persons being investigated for the cartel offence. Those are necessary and proper safeguards in cases in which evidence given by somebody under investigation may later be used in court against them. OFT officers investigating a criminal offence are already subject to those safeguards and will have regard to the codes of practice for criminal investigations in England, Wales and Northern Ireland, as provided by the Police and Criminal Evidence Act 1984. That Act says:
"Persons other than police officers"—
which is what OFT officers are—
"who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of such a code".
OFT and SFO officers are "persons other than police officers".
The purpose of the Police and Criminal Evidence Act is to protect suspects where investigators are trying to obtain evidence that can be used against them. If OFT investigators seek voluntary statements, they will be subject not only to the safeguards that the amendments would provide but to all the other requirements concerning breaks, embassy access, religious needs and so on. If they seek information under compulsion, using the powers conferred by Clauses 188 to 190, the Police and Criminal Evidence Act does not apply. However, Clause 192 provides protection against self-incrimination. In other words, information obtained under compulsion cannot be used in court against the person who gave it, except in limited circumstances. The noble Lord, Lord Kingsland, referred to the Saunders case on Thursday night. That safeguard mirrors that provided to persons subject to a fraud investigation under Section 2 of the Criminal Justice Act 1987.
In England, Wales and Northern Ireland, a suspect has no right to have a lawyer present when being interviewed under compulsory powers. However, in the interests of fairness and unless it would unduly delay or obstruct the investigation, the Serious Fraud Office advises persons under investigation that they may wish to seek legal representation. I can give an undertaking that the Office of Fair Trading will follow SFO practice in that respect.
Amendment No. 201 would remove the exception to the safeguard against self-incrimination. That safeguard prevents the use of statements obtained under compulsion in a civil investigation conducted under the Competition Act 1998 against the person who made them for the purposes of prosecuting for a new offence. However, it is common practice in criminal law for persons to lose that protection if they make inconsistent statements or voluntarily provide information. That approach is consistent with Sections 2(8) and (8AA) of the Criminal Justice Act 1987.

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I hope that that will address the noble Lord's concerns.
Lord Kingsland: I am grateful to the Minister for that full explanation. On the basis that the provisions that he mentioned are either already incorporated in the Bill or are incorporated by implication, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 193 not moved.]
Clause 188 agreed to.
Clause 189 [Power to enter premises under a warrant]:
[Amendments Nos. 194 and 195 not moved.]
On Question, Whether Clause 189 shall stand part of the Bill?
Lord Hunt of Wirral: Before moving on to Amendment No. 195A, I thought it would be worth considering whether Clause 189 should stand part of the Bill. I am concerned about certain aspects of this clause. As a whole the clause makes it clear that it would enable officers to enter premises and remove all material, even though it might be irrelevant or immaterial. The provisions would allow an officer to seize material if it was not reasonably practicable to determine while on the premises whether the material was seizable, or in the case of property some of which was seizable, which items the officer would be entitled to seize.
I recognise that the exercise of this power is subject to strict safeguards, including the requirement to give written notice and the duty to return legally privileged material, but we should be cautious about conferring such wide-ranging powers; that is, powers that would enable officers to seize any material at all. I would welcome some reassurance from the Minister on these points.
Lord McIntosh of Haringey: The noble Lord, Lord Hunt, did not mention the most important safeguard included in Clause 189, which is that the authority of the High Court or the sheriff in Scotland must be sought before a warrant can be issued. As I have said, that is the most important protection.
The definition of which documents may be seized and the consequences of a power to enter premises under a warrant are not new; what is new is the level of authority necessary here. Subsection (5) amends Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 so that it will apply to investigations of the offence. The investigatory procedures have not changed: what is new is the introduction of the new offence of engaging in a criminal cartel.
The amendment would enable officers of the OFT to remove material where it is not possible to examine it properly on the premises due to constraints of time and technology. Officers can remove anything which they would be entitled to seize in isolation, even if it is held within something that they have no power to seize, such as a hard drive or an entire disk. The exercise of
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the power is subject to strict safeguards which include a requirement to provide a written notice and a duty to return legally privileged material.
This is always going to be a contentious issue, but it is on the basis of the judicial authority required that I defend the clause.
Lord Hunt of Wirral: I recognise that it is on the basis of the judicial authority that the Minister seeks to defend the clause. Under Clause 189 an application must be made first to the High Court or, in the case of Scotland, by the procurator fiscal to the sheriff, but that application would set out the grounds for believing that there might be documents on the premises which are in any way material and would detail the reasonable grounds for so believing.
I am looking for further assurance, judicial authority having been persuaded that there might be documents. Under the clause as drafted, it would be possible to sweep up all the documents, go away and examine them, retain what is material and return what is not.
However, the Minister says that these powers mirror those to be found elsewhere, but the concern is that we are dealing with the Office of Fair Trading rather than duly authorised police officers. He has pointed out other examples and I would like to reflect on his words. I am grateful to him.
Clause 189 agreed to.
9.45 p.m.
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 195A:
After Clause 189, insert the following new clause—
"189A APPLICTION FOR PRODUCTION ORDER

(1) A judge may on an application made to him by the prosecutor, make a production order if he is satisfied that each of the requirements for the making of the order is fulfilled.

(2) The application for a production order must state that a person specified in the application is believed to have committed an offence under section 183.

(3) The application must also state that—

(a) the order is sought for the purposes of the investigation;

(b) the order is sought in relation to material, or material of a description, specified in the application; and

(c) a person specified in the application appears to be in possession or control of the material.

(4) A production order is an order either—

(a) requiring the person the application for the order specifies as appearing to be in possession or control of material to produce it to an appropriate officer for him to take away; or

(b) requiring that person to give an appropriate officer access to the material, within the period stated in the order.

(5) The period stated in the production order must be a period of seven days beginning with the day on which the order is made, unless it appears to the judge by whom the order is made that a longer or shorter period would be appropriate in the particular circumstances."

The noble Lord said: Amendment No. 195A seeks to align the powers of the Office of Fair Trading in conducting investigations under the Bill with powers afforded to other authorities in similar circumstances conducting investigations.
Under the Bill as currently drafted, the Office of Fair Trading may conduct an investigation on the basis of a reasonable suspicion that an offence under Section 183 may have been committed. No recourse will be required to be made to the court to determine that the powers invoked under Section 188 are necessary for the purposes of the investigation and likely to be of substantial value to the investigation.
Is the Minister satisfied that those powers are compatible with Article 8 of the European Convention on Human Rights? I recognise that his noble friend Lord Sainsbury of Turville has signed a statement on the face of the Bill stating that in his view the provisions are compatible with the convention rights, but I would like reassurance from the Minister on that specific point.
I am concerned because in cases of search of property by officials for the purposes of the detection and prosecution of serious crime, the European Court of Human Rights has held that in order to satisfy the test of being necessary in democratic society so as to justify the exception under Article 8.2, prior authorisation by a judge would normally be required. A French law, which lacked a safeguard of that type, was condemned by the court in the case of Funke v. France (1993) 16EHRR 297, because it allowed the authorities exclusive competence to determine the scale, frequency and legality of searching in each case. The Minister will not therefore be surprised when I return to the point I raised earlier, drawing an analogy between that situation and cases in which the OFT will require the information under this clause.
It is the view of a number of distinguished lawyers that sufficient safeguards should be put in place to ensure that the new powers are proportionate to the intended outcome. The amendment seeks to achieve that and ensures that the same criteria as must be fulfilled before a court will, for example, grant production orders on the Proceeds of Crime Bill, will apply before a notice can be issued. I recognise that we have dealt with those points to some extent already, but I would be grateful if the Minister could reply in detail to the amendment. I beg to move.
Lord McIntosh of Haringey: I can assure the noble Lord, Lord Hunt, that I recognise where these amendments have come from. These additional clauses are taken directly from the Proceeds of Crime Bill, which, since it has passed through your Lordships' House, will become the Proceeds of Crime Act within a few days.
The amendments seek to replace the provisions of Clause 198, the power to enter premises without a warrant. They contain, in essence, the same safeguards as those contained in Clause 189, as the noble Lord will recognise. Clause 189 has been drafted specifically to align the powers of the Office of Fair Trading in conducting investigations under this offence with the powers afforded to the Serious Fraud Office in the Criminal Justice Act 1987.
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As I argued earlier, the Office of Fair Trading is best placed to investigate this offence as it draws on its experience of investigating very similar offences under the Competition Act 1998. It will work closely with the Serious Fraud Office, particularly as the Serious Fraud Office will be acting as prosecutor of the offence. So it is important—indeed, vital—to align the powers of investigation between the two authorities to avoid confusion.
The noble Lord, Lord Hunt, made a specific point about ensuring that the powers under which an authority may obtain information and search premises are compatible with Article 8 of the European Convention on Human Rights. Not only has the Minister signed an assurance to that effect but the Joint Committee on Human Rights has scrutinised the Enterprise Bill and set out its views in its 18th report. The Joint Committee considered the provisions of Part 6 of the Bill and came to the conclusion that there are sufficient statutory safeguards in place to ensure that the powers would be exercised compatibly with human rights.
The proposed new clauses replicate all the safeguards that are already contained in part of Clause 189, with one substantial difference. I do not know whether or not it was intentional. The new clauses require that a production order can be issued only if a person specified in the application is believed to have committed an offence under Section 183, while Clause 189 requires the OFT to demonstrate to the judge that there are reasonable grounds for believing that there are documents on the premises in question which are required for the purposes of an investigation.
I hope that the noble Lord, Lord Hunt, will agree that it would be unjustified to require the OFT to identify an individual who has committed an offence under Clause 189 before going to the High Court for authority. You could well have a reasonable suspicion that there are documents on a company's premises without knowing who put them there or in whose charge they are. So, in so far as there is any difference between these amendments and Clause 189, I hope that it will be agreed that Clause 189 is to be preferred.
Lord Hunt of Wirral: I should like to reflect on what the Minister said. Whenever powers of this nature are granted to such a wide extent it is important to ensure that there are necessary safeguards, particularly in regard to the right to privacy. I still have some concerns which the Minister has not completely allayed, but I should like time to reflect on them before taking them any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 195B to 195H not moved.]
Clause 190 [Exercise of powers by authorised person]:
Lord Razzall Lord Razzall moved Amendment No. 196:
Page 138, line 15, at end insert—
"() The OFT shall be responsible for all acts and omissions of any authorised person exercising powers under this section."
The noble Lord said: The amendment is unusual for a Bill of this complexity in that its words stand on their own. It is quite clear what we on these Benches are seeking. Clause 190 gives the OFT powers to appoint authorised people to exercise its powers under Clauses 188 or 189. We seek to amend that with a provision indicating that the OFT,
"shall be responsible for all acts and omissions of any authorised person exercising powers under this section".
This may seem to be a statement of the obvious. However, the concern has been expressed by a number of people—in particular with regard to potential damage to IT systems as a result of intervention by authorised persons—that the OFT should accept responsibility on the face of the Bill for the exercise of powers by authorised persons. I beg to move.
Lord McIntosh of Haringey: I am sympathetic to the thinking behind the amendment. Had I been in the position of the noble Lord, Lord Razzall, I should have done exactly the same. I can quite appreciate that someone coming in and searching for information on a PC or on a network could do a great deal of damage for no justification. So the idea of making the OFT responsible for the acts and omissions of any authorised person exercising powers under this clause is entirely right.
The OFT already recognises that it is responsible for the actions of its staff and any authorised competent investigator. It is because it may have to subcontract that the noble Lord's concerns come to the fore. It could be subcontracting to IT specialists, who would not make that kind of mistake, because those skills might not be available to OFT staff. It could be subcontracting to accountancy firms, or to the FSA or to the National Audit Office under certain circumstances.
The contracts that the OFT will have with these persons who are not officials of the OFT will set out the nature of the functions that the contractor is undertaking on behalf of the OFT and deal with liability concerning any actions they commit which exceed the OFT's powers.
Any person under investigation would in the first instance seek recourse from the OFT as the authorising authority. The OFT might seek to recover any damages awarded against them from its contractors.
I believe that the amendment is unnecessary. As I have said, the provisions of this clause are modelled against very similar provisions contained in the Criminal Justice Act 1987. That Act does not contain a provision making the SFO expressly responsible for the actions of its contractors; however, the SFO takes responsibility and regulates its obligations and responsibilities with its contractors through separate
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contracts. That seems to have worked for a considerable number of years and there is no good reason to suppose that it will not work now.
Lord Razzall: While expressing surprise that the Minister wants to take on the sins of his forefathers, I am happy to reflect on what he has said, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 197 and 198 not moved.]
On Question, Whether Clause 190 shall stand part of the Bill.
Lord Peyton of Yeovil: Perhaps I may briefly raise a similar point to one that I raised previously. It relates to Clause 190(1):
"The OFT may authorise any competent person who is not an officer of the OFT to exercise on its behalf all or any of the powers conferred by section 188 or 189".
Is not that provision slightly broad? Were it to be qualified, it would be somewhat better: "competent" to do what? I do not think that we do want to bring in anyone who might possibly be thought to be not entirely a lunatic. I do not wish to press the point, but I hope that the noble Lord might agree that this wording could be examined. I do not think that it is asking very much.
10 p.m.
Lord Kingsland: My noble friend Lord Peyton has, at least partly, stolen my thunder; that was precisely the point that I wished to make about Clause 190. Moreover, Clause 190, as I think I said earlier in these proceedings, ought to be made subject to Clause 189(2). The noble Lord, Lord McIntosh, will recall that Clause 189(2) gives specific warrant-making powers. Unless Clause 190 is constrained in some way, it can be used to override or circumvent the requirements of Clause 189(2). In my submission the relationship between these two clauses should be tidied up by the Government.
Lord McIntosh of Haringey: I hoped that I had addressed the concerns of the noble Lord, Lord Peyton, when I was responding to the amendment of the noble Lord, Lord Razzall. I did spell out the fact that some of the skills to which the noble Lord, Lord Razzall, referred—which are not necessarily available to the staff of the OFT—would be necessary in certain circumstances. I spelled out the possibility that these could be information technology skills, or accountancy skills in order to enable them to interpret the documents that they might find. It seemed to the noble Lord, Lord Razzall, that it was reasonable that there should be the ability to subcontract in these circumstances.
As to the issue of their being "competent persons" rather than "qualified persons", I do not think that there is a very great distinction. "Competent persons" implies the same degree of skill and control; it just does not relate to a particular qualification. Competent investigators are already subject to OFT

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authorisation. Clause 190 allows the OFT to authorise any competent investigator who is not an officer of the OFT to exercise the powers given under Clauses 188 and 199. The provisions under Clause 189(2) to which the noble Lord, Lord Kingsland, referred, and the requirement that this should be a named officer of the OFT, applies also to Clause 190 where the OFT is authorising someone else who is not an officer of the OFT. In other words, they have to be named and they have to produce evidence of who they are. We have tabled separate amendments to secure that.
The limitation of this authority is set out at Clause 190(2)—that it can be granted only,
"for the purpose of investigating the affairs, or any aspect of the affairs, of a person specified in the authority".
So they are not just let loose. The authority specifies who they are; what they have to do; who they are authorised to investigate; and what the content of that investigation is. However, I think that the fundamental point behind Amendment No. 190 is that, in addition to those safeguards, as I have made clear, the OFT is responsible for the actions of its staff and of any authorised competent investigator. That responsibility is equivalent regardless of whether they are staff.
The contracts that the OFT will have with authorised persons who are not officials of the OFT will set out the nature of the functions they are undertaking on behalf of the OFT and deal with liability for any actions that they commit which exceed OFT powers. That is a red rag to the noble Lord, Lord Peyton, I know, because the possibility of anyone exceeding the powers is not acceptable to him. It happens; it should not happen; but it is not made any more possible by the provisions of this Bill.
Lord Peyton of Yeovil: I certainly would not wish to go to the stake for the sake of "qualified" as opposed to "competent". It was only an idea and I am not strongly committed to it. I hope that the noble Lord will take the measure away. All I want him to do is to look at the wording. I accept what he said; namely, that elsewhere there is provision that the OFT is responsible for those who act on its behalf whether they are members of its staff or just named for a purpose.
Looking at the relevant subsection in isolation, I do not think that it ought to be included. There ought to be some kind of obligation on the OFT to ensure that the relevant person is competent or qualified. Simply to say that anyone that it considers competent will do is a little wide. I hope that the noble Lord will reconsider the measure. I am not asking for any more than that.
Lord McIntosh of Haringey: I shall, as always, certainly think about the matter. However, I reread Clause 190 when the issue arose. It seems to me that it is explicit. It begins by stating that authority can be conferred on any competent person. However, subsection (2) of the clause restricts the purpose of that authority. Subsection (3) restricts the obligation of
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anyone to comply with a requirement imposed by such a person unless the latter produces evidence of his authority. Those are real protections of which I shall take account as I consider the observations of the noble Lord, Lord Peyton.
Lord Kingsland: I hope that the Minister will, in the light of what he has said, agree to introduce an amendment on Report expressly linking Clause 189(2) and Clause 190(1) in order to make it absolutely clear that any authorisations made under Clause 190(1) are subject to the procedure set out in Clause 189(2).
Lord McIntosh of Haringey: I shall certainly look at that linkage again.
Lord Kingsland: I am most grateful.
Clause 190 agreed to.
Clause 191 [Privileged information etc.]:
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 198A:
Page 138, line 18, leave out from "any" to end of line 21 and insert "item subject to legal privilege"
The noble Lord said: I should like to probe the definition of "legal privilege" for the purposes of this part of the Bill. As currently drafted the Bill restricts the circumstances in which legal privilege can be claimed. Under subsection (1) of Clause 191,
"A person may not under section 188 or 189 be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege".
The amendment seeks rather to reflect the existing definition of "legal privilege" which has operated successfully in other legislative measures. The amendment would alter the subsection to read:
"A person may not under section 188 or 189 be required to disclose any information or produce any item subject to legal privilege".
Grouped with the amendment I am discussing is Amendment No. 199. That amendment seeks to delete the words at line 28, page 138:
"the OFT has authorised the making of the requirement".
Amendment No. 200 seeks to insert at line 28, page 138 the words,
"for the purposes of this Part, 'privileged communications' has the same meaning as in section 30 of the Competition Act 1998".
Amendment No. 200A seeks to delete subsection (3) of Clause 191 to take account of Scottish practice.
I hope that the Minister will justify the different definition or accede to the amendments. Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law has shown a willingness to acknowledge that right through the doctrine of legal professional privilege. I hope the Minister will accept that these amendment seek to preserve that doctrine and to ensure that communications between a solicitor and client are privileged. I beg to move.
Lord McIntosh of Haringey: Two different issues are involved. One relates to the issues raised by Amendments Nos. 198A, 200A and 202A. They provide a different way of accounting for the

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equivalent in Scotland of legal professional privilege. I understand that the amendments come from the Law Society of Scotland.
The Government's intention throughout Part 6 has been to model the OFT's investigatory powers and safeguards for those under investigation on those contained in the Criminal Justice Act 1987. Clauses 191 and 197 follow the Criminal Justice Act 1987 precedent. That was to ensure consistency of approach regardless of whether the OFT or the SFO are investigating or prosecuting. We recognise that there are concerns that current Scottish customs and practice should be properly reflected in the Bill. Therefore, we should like to consider the three amendments and look again at the issue.
I cannot be quite so sympathetic to Amendments Nos. 199 and 200. Amendment No. 199 would seek to remove the OFT's power to override the protection in respect of banking professional privilege. We considered leaving out banking privilege altogether. To give it greater prominence, as the amendment would do, is not the direction in which we would be inclined to move.
The origins of this privilege lie in the Criminal Justice Act 1987 which we have used as a model for the investigatory powers for the cartel offence. Section 2 of that Act confers powers of investigation with respect to serious fraud investigations. Since the OFT and the SFO will be working closely together on cartel investigations, the Government want to ensure that the investigatory powers of the two bodies are aligned. Section 2(10) of the Criminal Justice Act 1987 provides for banking professional privilege. Section 2(10)(b) provides the director of the SFO with the power to override this privilege. Clause 191(2) would replicate that arrangement. The amendment would deny that equivalent power to the Office of Fair Trading. We think that that hampers investigations and would destroy the alignment with the Criminal Justice Act.
In summary, I am prepared to consider Amendments Nos. 198A, 200A and 202A but I am much less sympathetic to the other two amendments.
Lord Hunt of Wirral: I am grateful to the Minister for his remarks about the application of the clause to Scotland. Although I did not detect much willingness to concede, he said that he would reflect on the remaining amendments. I should also like to reflect on his comments. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 199 to 200A not moved.]
Clause 191 agreed to.
Clause 192 agreed to.
Clause 193 [Use of statements obtained under competition Act 1998]:
[Amendment No. 201 not moved.]
Clause 193 agreed to.
Clauses 194 and 195 agreed to.
Clause 196 [Offences]:
[Amendment No. 202 not moved.]
Clause 196 agreed to.
10.15 p.m.
Clause 197 [Interpretation of sections 187 to 196]:
[Amendment No. 202A not moved.]
Clause 197 agreed to.
Clause 198 [Powers of entry]:
[Amendment No. 202B not moved.]
Clause 198 agreed to.
Clause 199 [Disqualification]:
[Amendments Nos. 203 to 212 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 212A:
Page 144, line 2, leave out from "person" to end of line and insert "an undertaking which is a company of which he is a director has committed or is committing a breach of competition law,
(ab) the OFT or the specified regulator thinks that the conduct of the person as a director makes him unfit to be concerned in the management of a company,"
The noble Lord said: I am indebted to the noble Lord, Lord Freeman—I hope that the message can be passed to him in case he does not read Hansard—for drawing attention to a technical defect in the provisions on competition disqualification undertakings. Amendments Nos. 212A and 215A make it clear that the OFT, or specified regulator, must consider that a person is unfit to be involved in the management of a company before it can accept a competition disqualification undertaking from an individual. In making its assessment, the OFT or a specified regulator will take into account the same considerations in relation to a director's conduct that a court would have to do.
On Question, amendment agreed to.
Lord Kingsland Lord Kingsland moved Amendment No. 213:
Page 144, line 10, at end insert "without leave of the court"
The noble Lord said: This straightforward amendment seeks to qualify the provisions in Part 7. We believe that the additional flexibility is desirable.
Lord McIntosh of Haringey: Section 1 of the Company Directors Disqualification Act 1986 was amended by the Insolvency Act 2000 to provide that an individual who is the subject of a disqualification order cannot obtain the leave of the court to act as an insolvency practitioner. That refers to the third part of the provisions in the clause. This was to make the CDDA consistent with Section 390(4)(b) of the Insolvency Act 1986, which provides an absolute ban on an individual acting as an insolvency practitioner if he is subject to a disqualification order. The absolute ban is mirrored in Section 1A(1) of the CDDA in respect of disqualification undertakings. The drafting of new Section 911(4) is therefore designed to reflect the current provisions on leave to act in the CDDA.

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We believe that a person who has committed serious economic misconduct as a company director should probably not be trusted in other capacities that involve the handling of other people's assets. We wish to avoid a situation whereby a disqualified person could submit reports to the Secretary of State under Section 7 of the Company Directors Disqualification Act on the conduct of a failed company's directors. On that basis, I hope that the amendment will not be pressed.
Lord Kingsland: I am of course grateful to the Minister for his response. In our view, the mediation of the court in those circumstances would provide adequate protection and a desirable degree of flexibility. I shall reflect on the Minister's reply. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments. Nos. 214 and 215 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 215A:
Page 144, line 24, at end insert—
"(7) Subsections (4) to (8) of section 9A apply for the purposes of this section as they apply for the purposes of that section but in the application of subsection (5) of that section the reference to the court must be construed as a reference to the OFT or a specified regulator (as the case may be)."
On Question, amendment agreed to.
Clause 199, as amended, agreed to.
Clauses 200 to 203 agreed to.
Clause 204 [Reform of Community competition law]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 216:
Page 148, line 22, leave out "this section" and insert "subsection (1)"
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 217 to 219.
A European Commission draft regulation, currently under negotiation by member states, is proposed to replace the current Regulation 17, which implements Articles 81 and 82: the competition articles of the European Community treaty. The UK's Competition Act is closely modelled on Articles 81 and 82, which prohibit restrictive agreements and the abuse of a dominant position. I am sorry to have to tell the Committee that "modernisation" is the accepted shorthand for the reform of Regulation 17, which will have the effect—to use a less offensive term—of decentralising the enforcement of Articles 81 and 82 to national courts and national competition authorities. The UK supports that initiative.
Clause 204 of the Enterprise Bill gives the Secretary of State a power to make regulations so that, post-modernisation, amendments may be made to our domestic competition regime in order to eliminate or reduce differences between the Competition Act 1998 and the EC's competition rules. But there are also exclusions from the application of the prohibitions of the Competition Act 1998 in other Acts. I support this set of amendments, which adds a power to remove or
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modify these exclusions—for example, the exclusion in the Financial Services and Markets Act 2000 for rules of a recognised investment exchange. EC competition law does not provide for similar exclusions and, while these differences between the application of domestic competition law and EC competition law already exist, after modernisation the domestic regime may become unworkable because the EC competition rules will be applied by the OFT along with our domestic regime So, after modernisation, OFT will have to operate two different but overlapping systems, both dealing with anti-competitive agreements and abuse of dominant provision. That will create confusion for business over which regime applies to a particular case and prove unworkable for the OFT. So the power is needed so that our domestic regime and the EC competition regime may be made consistent.
The power provided for in Amendment No. 217 is tightly drawn. Amendments Nos. 216, 218 and 219 are consequential on Amendment No. 217. The affirmative resolution procedure applies to any use of the powers given by this clause—although the powers are tightly drawn, it is only right that Parliament should have the opportunity to debate any specific use of those powers.
Of course, that involves further use of delegated powers. I should tell the Committee that this week we are intending to send the Delegated Powers and Regulatory Reform Committee a supplementary memorandum. That will detail the two government amendments which impact on delegated powers in the Bill. As always, we shall take extremely seriously any observations that the committee has. But we have no reason to suppose that it will object to this particular use of delegated powers. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 217 to 219:
Page 148, line 30, at end insert—
"(2A) The Secretary of State may by regulations repeal or otherwise modify any provision of an Act (other than the 1998 Act) which excludes any matter from the Chapter I prohibition or the Chapter II prohibition (within the meaning of Part 1 of the 1998 Act).
(2B) The power under subsection (2A) may not be exercised—

(a) before the power under subsection (1) has been exercised; or

(b) so as to extend the scope of any exclusion that is not being removed by the regulations."

Page 148, line 31, leave out "The regulations" and insert "Regulations under this section"
Page 148, line 36, after "power" insert "to make regulations"
On Question, amendments agreed to.
Clause 204, as amended, agreed to.
Clause 205 agreed to.
Schedule 13 agreed to.
Clause 206 [Domestic infringements]:
Lord Razzall Lord Razzall moved Amendment No. 220:
Page 150, line 4, after "(2)" insert "or is an unfair commercial practice"
The noble Lord said: In moving Amendment No. 220, I shall speak also to Amendments Nos. 221 and 253. We now come to a different section of the Bill. I know that we have just spent a very happy hour talking about a number of detailed amendments. However, I fear that with these amendments we come to an area where we on these Benches disagree fundamentally with the position that the Government took at Second Reading on the form of the Bill. These amendments attempt to put into our legislation a general obligation for traders to trade fairly.
That obligation applies as a safety net in many industrialised countries—that is, most EU member states and certainly New Zealand, Australia and the United States. At Second Reading the Minister, the noble Lord, Lord Sainsbury, indicated that the Government were not persuaded that English law—I hesitate on that point: I am not entirely clear whether it is English law or whether this is a devolved matter, but no matter—should have such a generalised duty. However, as the Minister is well aware, soon developments in the European Union are likely to lead us to a directive that will require considerable amendment to the law.
As we are approaching 10.30 p.m., I do not wish to over-press the point or speak for too long. However, for the purposes of the record, I believe that it would be useful to read into it examples of why existing consumer protection is inadequate. Our consumer protection legislation depends entirely on being able to catch rogue traders either with specific legislation or with regulations. I am very grateful to both the Consumers' Association and the National Consumer Council for providing me with examples of rogue traders whose behaviour is not currently caught by the existing law. Perhaps I may give two such examples in order that the Minister may explain to the Committee why he believes that a general duty not to trade unfairly would not catch such people.
The first example concerns the elderly disabled woman who responds to an advertisement for a therapeutic chair. The advertisement invites her to telephone for an information brochure. When she telephones, she is persuaded to invite a salesman to her home for a product demonstration. In doing so, she unknowingly loses her right to a seven-day cooling-off period and the trader has exploited the loophole in the legislation. There is no protection for that individual under existing law.
The second example, which no doubt will be dear to noble Lords as we approach our summer holidays, concerns the holiday brochure that states that the hotel is 25 metres from the sea. As the Minister proceeds to a Spanish beach on his holiday at the beginning of August, he realises that the brochure fails to mention that a motorway runs between his hotel and the beach—no offence under the Consumer Protection Act. Those are two examples—many more have been brought to our notice—of why we on these Benches feel that there should be a general duty not to trade unfairly.
We have no pride of authorship in the form of the amendment, which we have tabled as a probing amendment. We know from the Minister's remarks at Second Reading that the Government are not persuaded. We hope that they will be persuaded and, if they are, will return at Report stage with a better clause than we have drafted.
10.30 p.m.
Lord Borrie: I have a great deal of sympathy with this amendment. If I did not, it would be surprising. I do so because in 1990, admittedly 12 years ago, when I was the Director-General of Fair Trading, a report was published in which I expressed myself as in favour of introducing into our law a general duty to trade fairly, for the same kinds of reasons as the noble Lord, Lord Razzall, has put forward for his amendment; namely, because of gaps in the law.
The value of a general duty, whether expressed positively, as I did in 1990, or negatively, as in this amendment—a duty not to trade unfairly is that the law never quite catches up with the malpractices of traders. Some traders always seem to be a step ahead of the law. However, I admit today that, in principle, I prefer the law and the civil obligation to be precise. My general view is that if the law is to be respected and is not to impinge unfairly on traders, it needs to be clear and precise. Consumers, and their advisers, also need to know their precise rights.
I therefore believe that it is preferable that the malpractices of the kinds listed—I think it is a non-exhaustive list—in the noble Lord's amendment should as far as possible be covered by amendments to the existing law. In Amendment No. 253, in relation to misdescriptions of services as distinct from goods, the noble Lord has in fact proposed exactly that.
Another example, similar to that given by the noble Lord a few moments ago, is that if a contract is signed at a dealer's premises, there is in law a cooling-off period for customers and, therefore, there would be little point in the dealer trying to pressurise the customer into signing the contract. If that law were extended to contracts signed at home, even when a visit is solicited—it would not be too difficult—some of the examples of unfair trading used by the noble Lord in tabling his amendment to illustrate problems would disappear. In my view, several other examples of malpractice covered by the amendment could be dealt with by pepping up the law on undue influence and the law on misrepresentation, such as the example given by the noble Lord about the travel brochure.
It may be that the National Consumer Council, for which I have every respect—perhaps its distinguished former chairman, the noble Baroness, Lady Wilcox, could be persuaded to say a few words—will, despite the points that I have just made, still think that a general duty embodied in law is desirable, although it may lack the specificity that I have suggested is desirable. So I am glad that the Minister in another place at a late stage of the Bill offered a seminar on the subject. One may make fun of that—is this government by seminar instead of by legislation? But,

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bearing in mind that she mentioned the summer, and that there is a gap between the Committee and Report stages of the Bill in this House, if there is a seminar in between times—say in September—it may help to take this discussion a little further.
My present view is one of agnosticism, but I am concerned that new fangled malpractices can emerge that no existing law deals with. I should like finally to quote the words of the great Francis Bacon. He said:
"He that will not apply new remedies must expect new evils; for time is the greatest innovator".
Baroness Wilcox: As the previous chairman of the National Consumer Council, I would be drummed out if I did not stand up to speak to this matter. As noble Lords have already said, there is a great sympathy around this, a sympathy for a desired general duty to trade fairly because of the gaps in the law. But 1, too, find it difficult. I am grateful to the noble Lord, Lord Borrie. In my years at the National Consumer Council I worked happily with him on many things to bring them to a fruition so that we could cover some of these more difficult areas.
I was particularly interested in the points he made about a contract signed at a dealer's premises giving a cooling off period. I wondered whether that could not be extended to contracts signed at home—"pepping up", as the noble Lord, Lord Borrie, calls it, such things as undue influence and the law on misrepresentation. Much as I have great sympathy for what the National Consumer Council proposed and wished to take forward, it lacks specificity. I do not like seminars either. But if there is a chance that something could work between Committee and Report stages, I should be keen to take part if I could and see whether we could not do something a little better after the Recess. Therefore, I am afraid that I cannot support the amendment at this time, but I have sympathy for the argument.
Lord Hunt of Wirral: I am grateful to my noble friend Lady Wilcox for her words. I find myself very much in agreement with her conclusion. It was my honourable friend Nigel Waterson in the other place who took the lead on this issue and made a compelling and convincing argument, to which the Minister responded with the notion of a seminar. I join with the noble Lord, Lord Borrie, in welcoming that development.
As I said in the debate at Second Reading, it is difficult to find a way through this situation, but it is important and imperative that we search every avenue that we can. I therefore very much agree with my noble friend that we now await the seminar, which I hope can be arranged as soon as possible, so that we can discuss possible ways forward at that seminar in time for us to debate the matter further on Report.
Lord Sainsbury of Turville: I speak to Amendments Nos. 220,221 and 253. Amendments Nos. 220 and 221 would introduce a general duty not to trade unfairly. That was debated at some length in the other place.
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I am sure that everyone would agree that businesses should treat their customers fairly. In addition to meeting their legal obligations, it is clear that businesses which treat consumers fairly and well are the businesses which will succeed in a competitive marketplace. However, I am not convinced that enshrining a general duty not to trade unfairly in legislation is necessarily the right way to achieve a fair deal for consumers.
There is already a strong body of legislation protecting consumers' rights. Where that legislation is found to be ineffective, the answer is usually better enforcement. If traders do not comply with existing law, there is no more reason to think they will comply with a general duty. And if traders disappear and cannot be traced, a general duty will not help. That is why better enforcement of existing consumer protection law is vital, which is exactly what this part of the Bill will achieve.
It is also important that policies for any new laws are founded on robust evidence. They must be needed to deal with issues of consumer concern and detriment not already covered by existing law. They must not impose undue burdens on business.
As my noble friend Lord Borrie said, that is why my honourable friend the Minister for Competition, Consumers and Markets, Melanie Johnson, is inviting key stakeholders from consumer groups, enforcers and business to a seminar to explore the issue in more depth. They will consider in detail cases that consumer organisations have cited in support of a general duty, which were also raised in debate in the other place and an example of which the noble Lord, Lord Razzall, also raised. I have noted that the noble Baroness, Lady Wilcox, would like to be invited to the seminar, and I am sure that if that is possible, it will be done.
Once we have a clear picture of where are the real problems, we will consider what further action would be appropriate. Where necessary, that will of course need to take account of what is happening in the European Union. The European Commission has just published a communication outlining its plans to develop proposals for a framework directive covering fair trading. The Commission will undertake extensive consultation with member states and other stakeholders. It would be unfortunate if we were to legislate precipitately in this case, only to be faced with similar but different European proposals in due course.
I turn to Amendment No. 253 which would remove a discrepancy in the Trade Descriptions Act 1968 whereby there is a requirement to prove Mens rea in order to establish an offence in relation to misdescribed services, although there is no parallel requirement to establish that in respect of misdescribed goods. In that context, mens rea means that the trader must be proved to have known that his statement was false or that he did not care whether it was true or not. Misdescriptions in relation to both goods and services will normally constitute a misleading advertisement under the Control of Misleading Advertisements Regulations 1998.

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"Advertisement" in those regulations has a wide definition and covers any form of representation to promote the supply of goods or services. Mens rea is not a consideration under those regulations, which are already covered by the stop now orders regulations and will be covered by Part 8 of the Bill.
Although I do not think that the Bill is the right place to amend Section 14 of the Trade Descriptions Act 1968, my department will be happy further to consider the issue with the Local Government Association, the Local Authorities Co-ordinator of Regulatory Services and the Trading Standards Institute, which I understand support the amendment.
As I said at the beginning of my reply, the amendments all seek to amend the underlying framework of consumer protection legislation. As I said, that is not the intention of the Bill which focuses on improving the enforcement of existing legislation that protects consumers. I have explained why I think that that is right and important, and I have offered my department's help in working with interested bodies on trade descriptions issues. In view of that, I invite the noble Lord to withdraw his amendment.
Lord Razzall: I listened with great interest not only to the Minister but to other noble Lords who have spoken from their vast experience of the issue. I shall obviously withdraw the amendment, but first I should like to make some general comments because the issue is important. The Government have defended their position with an approach that is completely different from that taken in most European Union countries, the United States, Australia, New Zealand and other countries.
I was going to say that I shall wager equally with the Minister, hut, bearing in mind our relative wealth, that is probably an unfortunate wager on my part. Instead, I will guarantee that, within the next two years, the Minister will rise here to introduce consumer protection legislation that will completely confound what he has just told us. The European Union will have developed its proposals and there will be a directive that the Government will implement. The Minister will turn on its head all of his case about why we should not have a general duty to trade fairly and tell us why the European Union is entirely right to introduce its directive including such a duty.
If the Minister had stood up and simply said that, although it is a little early for such a provision, he understood the comments made; and if he had then continued to say that the European Union was considering the matter and that the Government would, therefore, like a year or two to reflect upon what that consideration would produce—after which they would bring forward legislation—I should have completely understood the noble Lord's point. But, of course, he did not have to put consumer protection legislation in this Bill: this is an Enterprise Bill; in other words, the Chancellor of the Exchequer's Bill, which is designed to do something about productivity.
The fact that the noble Lord's ministry wished to tack in consumer protection issues here prematurely is not my problem; it is his. Therefore, a year or two may
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well elapse before he turns this argument on its head. As I said, I shall not seek to take the noble Lord's money because he earns more than me, but that will undoubtedly be the case in a few years' time.
Finally, I have never taken the view of the Conservative Party about this Government. I believe that government by focus group is not a bad idea. I certainly believe that government by seminar is a very good idea. Indeed, I look forward to the seminar. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 221 not moved.]
Clause 206 agreed to.
Clause 207 agreed to.
10.45 p.m.
Clause 208 [Enforcers]:
Lord Sainsbury of Turville Lord Sainsbury of Turville moved Amendment No. 221A:
Page 151, line 28, after "Investment" insert "in"
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 222, 223 and 223A, together with Amendments Nos. 224 to 228. Amendment No. 221A makes a minor drafting change in the title of the Department of Enterprise, Trade and Investment in Northern Ireland. Amendments Nos. 222, 223 and 233A are intended to remove any possible suggestion that the Secretary of State could exercise a subjective opinion that a body has, as one of its purposes, the protection of the collective interests of consumers in deciding whether or not to designate that body as an enforcer under this part of the Bill.
We are only resisting these amendments because we believe that the Bill does not allow for such a possibility. Therefore, the amendments are unnecessary. There is no policy difference between us here. As it is the Secretary of State who will be designating the bodies, it must necessarily be her opinion that is relevant. But, although she can designate any body that she thinks has as one of its purposes the protection of the collective interests of consumers, her opinion must, as far as possible, be an objective one. It must satisfy the requirements of administrative law. So her opinion must be reached fairly. It must take into account all relevant factors, and no irrelevant ones. It must not be unreasonable.
I can therefore assure the Committee that the Secretary of State will indeed only designate a body under this part if she reaches the view on the basis I have described that it has, as one of its purposes, the protection of the collective interests of consumers. For public bodies this purpose will often be set out in the statute establishing the body. In addition, the criteria that the Secretary of State is required to specify for designating private consumer bodies will require evidence of a track record that is sufficient to demonstrate experience, competence and expertise in protecting the collective interests of consumers. The designation will be by order, so there will be parliamentary scrutiny and the opportunity for debate.
Any decision by the Secretary of State to designate a body that did not have as one of its purposes the protection of the collective interests of consumers, or to designate a private consumer organisation that did not meet the criteria that she is required to specify by order, would of course be open to challenge by way of judicial review.
Amendment No. 224 seeks to ensure consumer organisations with a trading interest are not designated as "enforcers" under this part of the Bill. Amendment No. 225 seeks to ensure that a consumer organisation is not designated in such a way as would allow it to bring applications for enforcement orders in areas where it carries on a commercial activity.
I fully understand business concerns about the potential conflict of interest if consumer organisations have the right to bring applications for enforcement orders in areas in which they have a commercial interest, for example by bringing an application for an enforcement order against a business carrying on the same commercial activities as its trading arm or in cases in which the trading arm could itself be the subject of an application for an enforcement order.
I reassure the House that the criteria that the Secretary of State is required to specify by order will guard against such an occurrence. The criteria for designating consumer organisations with trading arms will include provisions to ensure that any potential conflicts of interest are properly dealt with. The fact that a body has a trading arm should not disqualify it from being designated as an enforcer under this part, provided that the trading arm does not control the body and that any profits made by the trading arm are used only to fund its consumer representation or other related work. Excluding bodies with trading arms would exclude many, if not most, charities, which use commercial activities to fund their stated objectives.
Regulation 4 of the Stop Now Orders (EC Directive) Regulations 2001 contains the existing power to designate private consumer organisations and sets out the criteria according to which they may be designated. That includes a requirement that the organisation be so constituted, managed and controlled that it can be expected to act independently, impartially and with complete integrity. If, having been designated, a consumer organisation fails to comply with the criteria, the Secretary of State would be required to remove its designation. We expect to set similar criteria for designating consumer organisations under this part, but we will consult widely on the draft criteria. That will give all interested parties the chance to raise their concerns. I will, of course, welcome comments from your Lordships on the consultation on the draft criteria.
Amendments Nos. 226, 227 and 228 seek—
Lord Hunt of Wirral: I am so reluctant to interrupt the Minister. Rightly, he rose to move Amendment No. 221A, but he has now proceeded to respond to Amendments Nos. 222, 223 and 223A, even though they have not yet been moved. No doubt, the noble
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Lord, Lord Razzall, will make a point about that. Now, he is proceeding to respond to my amendments, Amendments Nos. 226, 227 and 228. I would prefer him to respond once I put the case for the amendments, so that I might influence his response. I do not want to hear it in advance of mine.
Lord Sainsbury of Turville: I stand corrected. I thought that for me simply to propose that I would put the word "in" into the phrase "in Northern Ireland" would be a waste of the noble Lord's time, so I thought that I would cover the other amendments. I apologise to the noble Lord. I shall certainly listen to his arguments before I go any further.
Lord Hunt of Wirral: I am so grateful to the Minister for allowing me to get a word in edgeways: it is kind of him.
As we consider Part 8 of the Bill, I ought to draw your Lordships' attention to the fact that, in Standing Committee in the other place, the whole of this important part of a complex Bill, which deals with the rights of and duties owed to consumers was allocated just a few moments because of the guillotine. There was no opportunity to deal properly with the amendments. As we have said on many previous occasions, it is incumbent on your Lordships' House to play an important part in scrutinising legislation that has not been considered in the other place because of the guillotine.
Amendment No. 226 is linked with Amendments Nos. 227 and 228. Amendments Nos. 227 and 228 are identical, and Amendment No. 226 is similar. I hope that the Minister will allow me to speak to the omnibus or generic amendment—the sum of those three parts. It is a routine request that orders such as those to be made under Clause 208 should be subject to the affirmative resolution procedure in both Houses, rather than the negative procedure. I should put it on the record immediately that I dislike intensely the negative procedure because it gives so little opportunity for proper scrutiny, while in any event the procedures of Parliament inhibit the possibility of amendment.
Clause 208 is the only clause in this part of the Bill to introduce secondary legislation. Those who have scrutinised this part will see that it enables the Secretary of State to designate persons or organisations as enforcers. I know that my noble friend Lady Miller of Hendon would have wanted to be present as we scrutinise these provisions. Unfortunately, for a number of reasons she was unable to be present this evening. However, she told me how she felt—that the word "enforcers" was a term redolent of menace, conjuring up a picture of sinister men in trenchcoats and trilby hats making traders offers that they cannot possibly refuse.
Since those qualified to be enforcers include every weights and measures authority in Great Britain, a number of recent cases cause us to approach this part of the Bill with some degree of trepidation. The clause permits the Secretary of State to appoint what are called "general enforcers" and "designated enforcers".

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As the Minister has already pointed out, "designated" enforcers could include any person or organisation that,
"the Secretary of State … thinks has as one of its purposes the … collective interests of consumers".
It need not necessarily be a body generally accepted as unarguably having such a purpose, but one which the Secretary of State in her wisdom and by some hitherto undisclosed subjective test thinks has such a purpose. In other words, under the present wording of the clause, any self-appointed pressure group able to create enough noise and fuss to come to the attention of the Secretary of State could be designated as an enforcer with powers to apply for enforcement orders under Clauses 209 and 210.
The enforcement powers are wide and far-reaching. However, I should like to point out that we do not object to them in principle, nor do we object to the Secretary of' State delegating enforcement powers to appropriate persons or organisations. Nor, indeed, do we object to the Secretary of State defining the extent of the infringements in which the enforcers may involve themselves in enforcing against, as provided in subsection (6)(b). The amendments seek to ensure that there is adequate scrutiny of the qualifications of the enforcer. Because the appointment is to be made by statutory instrument, we believe that it should automatically be open to debate by means of the positive resolution procedure.
That is the purpose of the amendments. I hope that the Minister will look on them favourably.
Lord Sainsbury of Turville: I have listened with great interest to the noble Lord, but I do not think that the government position will change on this. Perhaps I may reiterate a point that I hope I explained in my earlier remarks; namely, that this is not simply a subjective test. We shall provide clear guidance. Furthermore, the Secretary of State can be held to ensuring that any actions coincide with that guidance.
The view held by the noble Baroness, Lady Miller, of enforcers is rather wide of the mark in this instance. Of course it is always a matter of judgment and debate whether the affirmative resolution procedure is required in a particular case. We do not think that it is required here because these will be fairly routine situations. Furthermore, I should remind the noble Lord that the Delegated Powers and Regulatory Reform Committee, having examined all the proposed delegated powers in the Bill, expressed itself content for the power in this clause to be made under the negative resolution procedure. I think that that was entirely right.
On the basis of those remarks, I hope that the noble Lord will not seek to press his amendments.
On Question, amendment agreed to.
[Amendments Nos. 222 to 228 not moved.]
Clause 208, as amended, agreed to.
Clause 209 agreed to.
Clause 210 [Applications]:
Lord Razzall Lord Razzall moved Amendment No. 229:
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Page 153, line 18, after "a" insert "domestic or"
The noble Lord said: This is a small amendment which is either significant or merely a drafting point. Either the words "domestic or" have been omitted as a drafting error, or they have been omitted as a result of a principle. If it is a drafting error, no doubt the Minister will say that it will be rectified on Report. If it is a point of principle, I shall be interested to know what it is. I beg to move.
Baroness Wilcox: I, too, am interested to hear the answer and hope that the Minister will enlighten the Committee on why Clause 210 does not refer to domestic infringements. It seems to be a discrepancy in the wording of the Bill, particularly as the 2001 regulations include that wording.
Lord Sainsbury of Turville: Amendment No. 229 would enable an enforcer to make an application for an enforcement order against a person who it was believed was likely to engage in conduct which would constitute a domestic infringement. That is already the case in respect of Community infringements because we believe that it is a requirement of the injunctions directive.
Officials have discussed the issue with the Office of Fair Trading and the local authorities' co-ordinating body on regulatory services. Although we fully understand the argument in favour of giving enforcers the power to make applications to stop domestic infringements before they occur, we have not been provided with sufficient convincing cases of when the power might be used to merit extending the scope of domestic infringements in this way.
A power to prevent infringements before they occur is likely to be most useful in the field of advertising where a single misleading advertisement has the potential to harm a large number of consumers. This would be a Community infringement and, as I have already mentioned, the Bill gives enforcers the power to take action to stop likely Community infringements if necessary by making an application for an interim enforcement order. On that basis, this is not a drafting error but a clear policy decision and we believe that it is the right one.
Lord Razzall: I thank the Minister for that answer and I am pleased that it is a policy issue. He says that the Government are not persuaded that there are sufficient examples to warrant the insertion of the words "domestic or", but I am sure that between now and the Report stage the noble Lord, Lord Borrie, the noble Baroness, Lady Wilcox, and I will be able to draw specific examples to the Government's attention. On that basis, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 230 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 231:
Page 153, line 31, at end insert—

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"() An application for an enforcement order shall comply with the appropriate pre-action protocol and civil procedure rules for the time being in force."
The noble Lord said: An enforcement order under Clause 210 is an important instrument for the purpose of giving effect to the Bill when it becomes an Act. Although the application for such an order is to the regular courts of this country, nowhere is it provided that the procedure to be used is the civil procedure rules—including the pre-action protocol instituted by the noble and learned Lord, Lord Woolf, which requires substantial disclosure of the complainant's claim and evidence right at the outset of the case.
The effect of this early disclosure of the claimant's case will be to concentrate the defendant's mind on the likelihood of his losing and, in the case of enforcement proceedings, of remedying the alleged wrong. The amendment seeks to ensure from the outset that enforcers exercise their powers under the same rules as apply to all other parties to the civil courts; and that the civil courts make the necessary additional rules if the present rules are for the moment inadequate to cover this novel course of action. I beg to move.
Lord Sainsbury of Turville: Amendment No. 231 has the same purpose as Amendment No. 232, which we did not debate, and seeks to ensure that enforcers could not bring applications to court without complying with the civil procedure rules and pre-action protocols, which are intended to enable parties to achieve an out-of-court settlement by encouraging early exchange of information by the parties.
The civil procedure rules will apply to applications under this part. The rules provide that the court will expect all parties to have complied with any relevant pre-action protocols, with non-compliance being taken into account by the court when considering costs. As such, it is unnecessary to have any additional reference to compliance within primary legislation. On that basis, I ask the noble Lord to withdraw the amendment.
Lord Kingsland: The Minister will understand that I am not entirely happy with his reply. I shall go away and think about what he said. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 232 to 234 not moved.]
Clause 210 agreed to.
Clause 211 agreed to.
Clause 212 [Enforcement orders]:
Lord Razzall Lord Razzall moved Amendment No. 235:
Page 154, line 33, at end insert—
"() The court must have regard to whether the information and advice published in pursuance of section 224(1) has been adhered to by the enforcer bringing the application."
The noble Lord said: Amendment No. 235, which stands in my name and that of my noble friend Lord Sharman, with one drafting exception is virtually
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identical to Amendment No. 236, which stands in the name of the noble Baroness, Lady Miller, and the noble Lords, Lord Hunt and Lord Kingsland.
On the face of it, the amendment speaks for itself. On these Benches and on the Conservative Benches we believe that there should be an additional clause to the effect that the court must have regard to whether the information and advice published in pursuance of Clause 224(1) has been adhered to by the enforcer bringing the application. The wording of the amendments—subject to the small addition made by the noble Lord, Lord Kingsland, to his amendment—is self-explanatory. I look forward to hearing the Minister's response. I beg to move.
Lord Kingsland: As the noble Lord indicated, the Secretary of State will be able to give wide enforcement powers to a large number of bodies and persons—any person or body in fact, to quote Clause 208(2)(b), which the Secretary of State,
"thinks has as one of its purposes the protection of the collective interests of consumers".
It is not difficult to conceive that, among the chosen ones, there will be pressure groups which are frequently interested in only single issues, or organisations with particular expertise in only one specialised field. It may not always be groups such as the Consumers' Association which possess, of course, a wide spectrum of interests.
At this juncture I do not want to give examples or to say anything which may seem to denigrate any organisations which the Secretary of State may see fit to designate as enforcers. But it is essential, when such pressure groups are given the wide powers that they are to have under the Bill—power to initiate and power to pursue, at the public expense, proceedings that may cost someone a vast amount of money and time to defend—that the enforcer acts in a quasi-judicial and impartial manner. That means not pursuing a particular personal agenda, however well-meaning the objective is. Impartiality in investigating, impartiality in taking proceedings and impartiality in the way in which they are pursued are all essential.
There must not be the slightest possibility suggested that—again to use the example of the OFT—the collective interest of the public, as stated in subsection (2)(a), is other than the only motivation. The interests of the supporters of a particular pressure group nominated to be an enforcer may not be the same as the collective interests of the public. That is why Clause 224 wisely stipulates that the OFT should give advice and information about the operation of this part of the Bill.
We cannot have a situation whereby different enforcers apply different criteria to the operation of the Bill and the way they perform the duties and exercise the powers that the Secretary of State gives to them. This amendment takes nothing away from the Bill or the powers that are given to the enforcers. It

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simply ensures that the advice and guidance of the OFT is not ignored or flouted and that one enforcer acts consistently with others.
Lord Sainsbury of Turville: Amendments Nos. 235 and 236 seek to require the courts, in deciding whether to make an enforcement order, to have regard to whether the enforcer has complied with any information and advice published by the OFT.
One of the reasons for giving the OFT a duty to publish advice and information is to promote a consistent approach to enforcement by the various bodies which will have enforcement powers under this part. We would certainly expect all enforcers to follow any guidance published by the OFT. This will be reinforced by the Memorandum of Understanding which each enforcer will be expected to sign with the OFT. These will be similar to the Memoranda of Understanding which the OFT is near to finalising with enforcers under the stop now orders regulations. But we do not see that there is a need to enshrine this in legislation. We also have to recognise that in many respects each enforcer will have to make its own decision on enforcement action.
Furthermore, unscrupulous traders are notorious for trying to find any loophole in the law which they can wriggle through. This amendment would give them the opportunity to use any slight actual or alleged departure from the OFT guidance as grounds for challenging why an order should not be made against them. This could significantly weaken the provisions of this part if the courts spend more time on deciding whether the OFT guidance has been completely complied with rather than the real issue before them; that is, whether or not an infringement has occurred.
The courts in any case have a discretion as to whether to make an order. We can be confident in the ability of the courts to do justice. If a court is satisfied that, although an infringement has occurred, it will not be repeated, it can decide either not to make an order or accept an undertaking from the defendant. If the court is not satisfied that the infringement will not be repeated, or the defendant does not offer an undertaking, it is unlikely to be in the public interest for an order not to be made, even if the enforcer has not complied with the guidance in every particular respect.
In view of these arguments, I invite the noble Lord to withdraw the amendment.
Lord Razzall: I have listened with interest to the Minister's response, and superficially I have some sympathy with it. I shall read his words carefully in Hansard. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 236 not moved.]
[Amendment No. 237 had been withdrawn from the Marshalled List.]
[Amendment No. 238 not moved.]
11.15 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 239:
Page 155, line 8, at end insert —
"(8A) Where any person fails to comply (whether wholly or in part) with an order made under subsection (8) the OFT may take such steps as it considers reasonable—

(a) to publicise that failure, and

(b) to publish the order and a corrective statement complying with the order.

(8B)Any reasonable expenses incurred by the OFT under subsection (8A) may be recovered by it as a civil debt from the person whose failure it has publicised.
(8C)For the purposes of the law of defamation the publication of the order and the failure to comply therewith and a corrective statement pursuant to subsection (8A) shall be absolutely privileged."
The noble Lord said: Subsection (8) of Clause 212 very sensibly provides that, after the case has been made out for the issuing of an enforcement order, the court may require publication of the order and, if necessary, a corrective statement. The subsection explains that this is,
"for the purpose of eliminating any continuing effect of the infringement".
This is a very sensible provision which we applaud.
However, what happens if the infringer does not comply with the order? Well, the court has its own methods of enforcing its orders: proceedings for contempt of court, followed by sequestration of assets or imprisonment or fines. However, these all take a long time. In the meanwhile, the objective of eliminating the continuing effects of the infringement moves further into the distance.
I believe that the sensible provisions of this subsection are deficient because they do not provide a speedy remedy. This amendment, giving the OFT power to insert any necessary advertisement and to recover the cost from the infringer, remedies that defect. It also covers the situation where the infringer goes out of business or disappears or is out of the jurisdiction of the court, although here the OFT might not be able to recover the expense involved.
Lastly, proposed new subsection (8C) protects the OFT from any defamation proceedings in the remote case of someone taking action as a result of its publishing a judgment or a corrective statement.
I trust that noble Lords will accept that this is a wholly constructive amendment designed to improve the Bill. I beg to move.
Lord Sainsbury of Turville: Amendment No. 239 seeks to give the OFT a statutory power to publicise a failure by a person to comply with a court order requiring him to publish either its decision that he should not engage in conduct which constitutes an infringement, or a corrective statement. It would also give the OFT the power to publish the order and a corrective statement complying with the order. The OFT would be able to recover from that person any reasonable expenses it incurs in doing so and could not be sued under the law of defamation for any inaccuracy in the information published.

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We believe that the court will make an order requiring the defendant to publish its decision or a corrective statement only when there is a real risk that consumers could continue to suffer harm from a past infringement. An obvious example would be where an advertisement had been found to be misleading. The court could then decide that the defendant should publish a corrective advertisement of equal prominence to the misleading advertisement, to stop consumers acting on the basis of the original misleading information.
Where the court makes such an order, I certainly agree that the defendant should comply with its decision as he should with any other order the court may make. However, where the OFT or the enforcer who made the original application believes that a person has failed to comply with the order, I believe that the appropriate and proportionate response would be for it to make a further application to the court, under Clause 214 of this Bill, to enforce the order. This further application might lead the court to find that its order had been breached and that the defendant is in contempt of court. The OFT or the enforcer may then wish to give publicity to those further proceedings. However, an express power to do so is not necessary because publication will be permitted under Clause 236 as it will facilitate the exercise by the OFT of its functions under this part.
As is already the case under the stop now orders regulations, it is the OFT's intention to publicise information on completed cases under this part, including details of the court's order and any order made in further proceedings to enforce the original order or undertaking to the court. In doing so, we would expect any publicity to be accurate, balanced and fair to the trader.
However, it is not clear whether this amendment is intended to apply only if the court holds that the person has not complied or whether the OFT's view is sufficient. Subsection (8C) of this amendment appears to give the OFT absolute privilege in relation to the law of defamation, even if the court later found there was no failure. This would have the potential to cause significant and irreparable harm to the reputation of a business if an alleged failure was publicised by an enforcer before a court had ruled on it, and the court subsequently did not uphold the enforcer's view, leaving the business with no redress. The OFT does not need absolute privilege if it is publishing details of a court order made in further proceedings because a claim for defamation could not possibly succeed in those circumstances.
I hope that on the basis of that argument the noble Lord, Lord Kingsland, will withdraw the amendment.
Lord Kingsland: I am most grateful to the Minister for his response. I take the point about the proposed subsection (8C). I shall reflect on it between now and Report and on whether to bring back the amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 240:
Page 155, line 26, at end insert—
"() Where the court determines that the person named in the application is not engaged in (or was not at the time of the application engaged in) conduct which constitutes an infringement and that therefore the application brought under section 210 or 213 has failed, the court shall make an order that the enforcer shall bear the costs of that application and reimburse the respondent for his reasonable costs and expenses in defending the claim."
The noble Lord said: Under the Bill, when it becomes law, any one of the enforcers appointed by the Secretary of State will be given the power to take any business to court for some alleged infringement of consumer rights. Supposing it loses, what happens then? There is nothing to prevent it from making repeated applications to the court, of course, based on slightly different facts. In other words, an enforcer can take several bites of the cherry.
But even if there is only one unsuccessful complaint, the person who has been exonerated should, in my submission, be entitled to recover the costs and expenses of defending the case. These claims will be brought in the regular courts which have power to award costs to successful parties. The amendment seeks to ensure that the courts will follow that procedure in cases brought under this Bill when enacted. I beg to move.
Lord Sainsbury of Turville: We believe that in court proceedings under Part 8, the normal rules as to costs, or in Scotland, expenses, should apply. The rules on costs in the Civil Procedure Rules will apply.
The general rule is that costs should follow the event, so that if the enforcer does not succeed and no order or undertaking to the court is made the enforcer will normally be ordered by the court to pay the business's costs. This will deter enforcers from behaving improperly or unreasonably, or from pursuing frivolous or ill-considered proceedings.
But the courts have discretion to depart from the general rule. For example, if a business has withheld important information from the enforcer which would have made proceedings unnecessary, it may be right for it to bear its own costs or part of them, even if no order is made. In other cases where an enforcer has not behaved reasonably in conducting a case it might be right for the enforcer to bear its own costs or even some of the business's costs even where an order is made. It is right that the court, which will know the circumstances of the particular case and the way it has been conducted by the parties, should have discretion. In those circumstances I ask the noble Lord to withdraw the amendment.
Lord Kingsland: I am entirely happy with that reply. I understand that the noble Lord is saying that the regime of costs which will apply to these actions will be exactly the same as the general regime applying to all civil actions. In those circumstances I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 212 agreed to.
Clause 213 [Interim enforcement order]:
[Amendment No. 241 not moved.]
Clause 213 agreed to.
Clauses 214 to 218 agreed to.
Clause 219 [OFT]:
[Amendment No. 242 not moved.]
Clause 219 agreed to.
Clause 220 [Other enforcers]:
[Amendment No. 243 not moved.]
Clause 220 agreed to.
Clauses 221 to 223 agreed to.
Clause 224 [Advice and information]:
Lord Razzall Lord Razzall moved Amendment No. 244:
Page 162, line 22, leave out from beginning to second "the" and insert "Before the Act comes into effect"
The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 244 to 249 and 251, some of which stand in my name and that of my noble friend Lord Sharman; and some stand in the name of noble Lords on the Conservative Benches. Other noble Lords may wish to speak to them.
We want to probe the Government on the clarity, transparency and awareness of the community as regards the law. It is not an attempt to restrict or to disagree with the powers of the legislation. If the law is clear, we believe that it will be more readily observed. I give an example, relevant to Clause 224, in order to explain Amendment No. 244. Significant representations have been made to us, and no doubt the Government, regarding the operation of stop now orders by the Office of Fair Trading. It started to give them in. April/May or even June 2001. Guidance regarding those stop now orders was not apparent to certain elements of the business community until at least 12 months later. In those circumstances, the amendment gives the necessary clarity. I beg to move.
Lord Hunt of Wirral: I rise to speak to Amendment No. 245. I agree with the noble Lord, Lord Razzall. The advice and information referred to in Clause 224 will be crucially important in setting out the procedure and processes under which the enforcement orders will be operated. We have received advice from a number of organisations, in particular the CBI, stressing how essential it is that all parties should be clear about the way in which the new enforcement powers under Part 8 will be exercised. As the noble Lord and others have already pointed out, the powers are new and range widely.. They can be exercised by a number of different enforcers. It is our intention, therefore, that transparency of process and procedural safeguards are vital; and this part of the Bill should not come into force until the guidance is available.
The concerns which have arisen in relation to the stop now orders regulations remind us that full guidance was not available for a considerable time following the introduction of the regulations. I
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understand that that guidance was not available for 10 months. Despite that, the Office of Fair Trading took action against business under the regulations from the day on which they came in to effect. Surely all parties, including business, are entitled to clarity of process. We look forward to receiving the reassurance from the Minister that we seek.
Amendments Nos. 246 and 247 leave out "may" and insert "must". It must be clear exactly how the OFT intends to exercise powers under this part of the Bill, including the criteria which the OFT will use in deciding whether to challenge business activity and how it will conduct that investigation. Business needs to know that standards of natural justice will be respected, which is why we contend that the OFT must have a positive obligation to publish information on those factors rather than the present permissive provision. I look forward to the Minister's response.
11.30 p.m.
Lord Sainsbury of Turville: I shall speak to Amendments Nos. 244 to 249 and Amendment No. 251.
Amendments Nos. 244 and 245 would ensure that the Secretary of State does not bring this part of the Bill into force before the OFT has published advice and information explaining the provisions of this part and how it expects them to operate in practice. I fully understand why the amendments have been tabled given business concerns that it will be helpful to them to understand the OFT's approach to its functions under the part, including its co-ordinating role, before the Bill comes into force.
However, this part requires a number of orders to be made by the Secretary of State before it can be brought into force. Foremost among those are the orders listing the legislation and common late duties for the purpose of domestic infringements on which we shall certainly wish to consult widely. Our consultation will follow the Cabinet Office code of practice on written consultation and allow 12 weeks for consultation. We also intend to follow the existing guidance to allow a further 12 weeks between making the orders and their coming into force. The result is that this part will not be brought into force hastily.
I can also reassure the Committee that it is the Government's intention that this part should not come into force before the OFT's guidance on the provisions and operation of this part are published. However, I do not think that it is necessary to specify that on the face of the Bill.
Amendment No. 246 would ensure that guidance published by the OFT always includes guidance about the factors which the OFT may take into account in considering how to exercise the functions conferred on it under this part. Amendment No. 247 then seeks to ensure that the OFT always takes these factors into account when exercising its functions under this part. While I understand the reason for the amendments, I am not convinced that they would achieve their intended purpose.

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Amendment No. 246 would by implication create a presumption that the list of factors published in the guidance was a complete and exhaustive list of the factors that the OFT would need to take into account. That would in effect require the OFT to attempt to forecast all the conceivable ways in which the power in this part may be used and then identify all the possible relevant factors that it may need to take into account in any particular case. I am sure that the Committee will agree that with the best will in the world that would be an unrealistic challenge for the OFT, at least until it had gained considerable experience of how this part will work in practice.
Amendment No. 247 would then effectively bind the OFT to taking those factors into account to the exclusion of all others. The OFT would have no discretion not to take a particular factor into account even when to do so would be in the interests of business. Also, because the list would by implication be exhaustive the OFT would not be able to take any other factors into account even if there were relevant factors in a particular case that would be beneficial to business. The normal principles of administrative law will require the OFT and other enforcers to take into account all relevant factors and disregard irrelevant factors in the circumstances of each case.
Amendment No. 248 would change the reference in subsection (5) from,
"If the OFT is preparing advice and information under this section" to "when" it is doing so. I agree with what the amendment seeks to achieve, given that this clause requires the OFT to produce such guidance. I shall therefore take this away and table a government amendment on Report.
Amendments Nos. 249 and 251 would ensure that the advice and information published by the OFT include guidance on the approach that should be followed by other enforcers when taking action under this part. I certainly agree that the OFT should be capable of giving general guidance on the approach of other enforcers as well as its own. That will be essential if there is to be a consistent approach to enforcement by the various parties that will have enforcement powers under this part. The OFT does not have a general power to direct the activities of trading standards departments, which are part of local authorities, and we do not think it would be appropriate to give the OFT such a power.
I expect that advice and information will set out the underlying principles that action should be appropriate and proportionate, brought by the appropriate body, and that businesses should be given a reasonable opportunity to put matters right with negotiation. It should also include advice on the procedures which should be followed by enforcement bodies when taking forward cases under this part. For example, we would expect the process to begin with a letter to the business, providing details of the business activity or practice giving cause for concern and inviting the business to enter into negotiation with the enforcer.
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That is the type of information that the OFT has produced in its recently published guidance on the stop now orders regulations, which received broad support from business. We do not therefore see a need to enshrine that requirement in legislation. Subsection (6) does of course itself require the OFT to consult other enforcers in preparing its advice and information.
In view of those arguments, I invite the noble Lord to withdraw the amendment.
Lord Razzall: It is late and I tried very hard to listen to what the Minister said. As I said earlier, the purpose of Amendment No. 244, which stands in my name and that of my noble friend Lord Sharman, and that of the amendments standing in the name of the noble Lord, Lord Hunt—although he will speak for himself—is to ensure that those who have to observe the legislation are clear about what the law says and about what guidance will be adopted. The Minister's comments on the various amendments suggest that the Government accept that general point. The Minister's approach—of not bringing into effect the relevant sections until the guidance is available or of bringing another provision back on Report—appears to meet our points. I shall read his response in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 245 to 249 not moved.]
[Amendment No. 250 had been withdrawn from the Marshalled List.]
[Amendment No. 251 not moved.]
Clause 224 agreed to.
Clauses 225 and 226 agreed to.
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 252:
After Clause 226, insert the following new clause—
"DESTINATION OF FINES IMPOSED BY THE OFT

(1)The OFT will consider whether any fines which it imposes under Chapter I or II of the 1998 Act might be applied for any purpose or purposes which could contribute towards remedying harm suffered by consumers generally (but not as individuals) as a result of the infringements of those provisions.

(2)The OFT may, in pursuance of subsection (1), make such directions as it considers appropriate.

(3)No action shall lie in any court (including for a judicial review) against any decision made by the OFT under subsections (1) and (2), including a decision not to apply to any fines for the purposes described in subsection (1)."

The noble Lord said: The amendment was first proposed by my honourable friends in the other place, led by John Whittingdale. However, it was not called there because of the operation of the guillotine. We have now added a further subsection: subsection (3), to which I shall return in a moment.
The new clause refers to the substantial fines—possibly running into millions of pounds—that the OFT can levy for breaches of the Competition Act 1998. Without specific provision, those fines will just alleviate the general burden of taxation. In this case, the fines would be levied because harm had been done to what Clause 208 refers to as,
"the collective interests of consumers".

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In the very litigious United States of America, there is a whole industry for bringing class actions in such cases, which I hope we never see within the confines of the United Kingdom. There are already actions going on in respect of alleged mis-selling of various financial services products. In this regard, we are dealing with fines that have been imposed because harm has been done to the collective interests of consumers. When the Office of Fair Trading levies a huge fine, it is my contention that that fine should, wherever possible, be used to alleviate the wrong suffered by the public.
Of course, it is very difficult to identify the members of the public who have lost out or suffered damage. But we have seen instances where the regulator has made certain utilities reduce their charges when it was thought appropriate for them to do so, bringing direct benefit to the consumers involved.
Therefore, it is our contention that it should not be impossible for some imaginative mind to provide in some way for discounts against the future supply of goods and services or to inaugurate a simple claim for a limited fixed amount of compensation where people can prove that they bought goods or services from the offending company or organisation which has been subjected to a substantial fine. If consumers in a particular locality are involved, the fine could be distributed to local authorities for the improvement of specific services which fall within the tenor of the fine.
In this amendment, we are asking the Government to respond to the overall intention, which is to find some way of compensating those who have suffered. In the amendment, the OFT is asked only to consider whether the fines could be used in that way. Under proposed new subsection (2) it is given the discretion to make such directions as it thinks appropriate.
However, the amendment differs from that submitted in the other place in that a new subsection (3) has been added. That subsection protects the OFT from being sued by someone for the way in which it has or has not exercised its discretionary powers under the clause.
The new clause makes it clear that, in exercising its considerable powers of punishment for serious infractions of the 1998 Act, the OFT is not simply the gatherer of yet another tax and that it should exercise its powers when reasonable and possible for the benefit of those harmed by some wrongful conduct. I beg to move.
Lord Borrie: Perhaps I may make a quick comment. I had not really considered this matter before I saw the amendment earlier today. I can see in principle the point that the noble Lord, Lord Hunt, seeks to make—that is, remedying harm suffered by consumers generally. The collective interests of consumers have been harmed and therefore they should be compensated.
But one or two examples that the noble Lord gave seemed to me to assist consumers as individuals or many individuals. Yet, in brackets in the amendment, he seeks not to do that. It seems to me that the main answer to the noble Lord—I hope that the amendment
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will not be accepted—is that he is asking for something that is far too difficult to achieve in practice. He does not like the idea of the fines going to the general taxpayer, but, by and large, that is probably the best judgment of Solomon that could be made in the circumstances.
I do not believe that the example of the utilities is appropriate because almost everyone in an area has to take gas, electricity or water. Therefore, a discount on prices may be the most reasonable remedy if the utility has failed the public and broken its obligations. But I believe that the noble Lord is asking for the impossible, and the OFT would find it extremely difficult in almost any circumstance to come to a judgment that was seen to be fair and just.
Lord Sainsbury of Turville: These amendments would allow the OFT to direct that fines which it has imposed in respect of infringements of competition law be used for purposes that would help to remedy the harm suffered by a general class of consumer as a result of those infringements.
Like noble Lords opposite, I am keen to encourage projects or activities that benefit consumers. But Clause 270 already sets out the Secretary of State's power to do that. The new consumer grants fund that we shall establish for the purpose of that power could be used to give financial assistance to projects in areas where a general class of consumers has suffered harm but where it is not possible for all the individual consumers concerned either to be identified or to seek redress.
One of our priorities will be to fund projects relating to the markets in which the OFT has established a breach of competition law. A good example of the kind of work that we would like to mirror here comes from the 1980s when Rover Cars were found to be using anti-competitive practices. By the time that emerged, it was no longer possible to identify the consumers who had lost out. Rover donated £750,000 to the Consumers' Association to establish a self-financing information service for car buyers in the UK and £250,000 to the Research Institute for Consumer Affairs to help fund its ability car programme—a programme of research, information and action relating to goods and services for disabled motorists. Obviously, we would not be talking about company donations, but the work for which this donation was used is a helpful example of the kind of activity that we shall be considering.
Under our proposals, we shall also be able to use the fund for a wider range of projects or other work that would benefit consumers—not just those who have suffered from specific anti-competitive practices. That may include, for example, promoting knowledge and understanding of consumer rights and how to obtain redress when things go wrong; providing information and advice to assist consumers to decide which goods and services to buy—for example, through impartial product research and comparative surveys; projects to benefit socially or economically vulnerable consumers;

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or projects to benefit disadvantaged groups who have special needs as consumers. But those are only illustrative examples.
The important point is that our proposals will already allow financial assistance to be given to projects that benefit consumers who have suffered from anti-competitive practices for which fines have been imposed under the Competition Act. But they will benefit consumers more widely, too, and will ensure that a more strategic view is taken both of the consumer issues that need addressing and of the funding available. By their very nature, fines are unpredictable, both in timing and amount. Therefore, consumer benefits linked to them would also necessarily be erratic and unpredictable. Furthermore, fines can be imposed under the Competition Act only where the undertaking concerned has acted intentionally or negligently. Although those will frequently be the cases in which most damage has been done to consumers, harm may also be done in other cases. In instances where the imposition of a fine is to act as a trigger for the use of the fund, given the scope for companies to dispute the fines, tenders for projects could be established as soon as the fine is levied, rather than paid, making the scheme more agile and timely.
All those measures are additional to our continuing ability under Clause 270 to fund bodies that promote the interests of consumers, such as the NCC. My department also has powers outside the Bill to spend money directly on consumer protection activities. For
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those reasons, I believe that our proposals are better for consumers than the amendments and make the amendments unnecessary. I would add that subsection (3) of Amendment No. 252 attempts to remove the proposed fine-allocation decisions of the OFT from the scope of judicial review. I am not convinced that that would be found acceptable as a matter of propriety.
In view of those arguments, I hope that the amendment will be withdrawn.
11.45 p.m.
Lord Hunt of Wirral: I am pleased that the Minister resisted the exhortation of his noble friend Lord Borrie to allow these sums to fall into the general body of taxation, but rather responded in a very constructive and positive manner, for which I am most grateful. I shall take time to reflect on what he said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 253 not moved.]
Clauses 227 to 232 agreed to.
Lord Davies of Oldham: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at ten minutes before midnight.