Lords Sitting of 10 May 2002

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Guildford.

Dignity at Work Bill [H.L.]
Baroness Gibson of Market Rasen: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Gibson of Market Rasen.)
On Question, Motion agreed to.

Divorce (Religious Marriages) Bill
11.6 a.m.
Lord Grabiner: My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to remove a serious injustice which currently arises because of the interplay between established Jewish religious law on the one hand and our own civil law rules on the other; in particular the rules concerning the grant of a divorce in the Matrimonial Causes Act 1973.
The Bill would introduce a simple but highly effective corrective measure for the future which would enable a court exercising matrimonial jurisdiction not to make a decree of divorce absolute until the necessary formalities for dissolving the religious marriage have been fully and properly complied with.
In Jewish law, divorce, like marriage, is consensual and contractual and requires the co-operation of both parties. The process for obtaining a religious divorce is initiated by the husband. He secures from the religious court, or Beth Din, a one-page document called a get which, by himself or through the agency of the Beth Din, is then delivered to the wife. Both parties are obliged to attend in person. If, however, either of the parties fails or refuses to participate on a voluntary basis, there can be no religious divorce.
Supposing that the husband refuses to give the get—and I use the male example because it is the most likely scenario—what happens then? The wife is still entitled to a civil divorce, but because she is still married to her husband in the eyes of Jewish law, she is not entitled subsequently to remarry in an orthodox ceremony. If she is devout, that inhibition will be a source of distress and unhappiness for her and her family. There is also a nasty sting in the tail: if she is still of child-bearing age, any children she may have in the future will be
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illegitimate in the eyes of Jewish law. That rule operates throughout the generations which are descended from her.
The status of the wife in that example is that of a married person in Jewish law, but that of a single person in the civil law. The lawyers' shorthand description of that state of affairs is graphically captured in the expression "the limping marriage". In Jewish law, the wife is known as the agunah, which appropriately translates as "the chained wife".
The religious law is biblical in origin and therefore immutable. There are no mechanics for changing the law. There is no parliament. Rabbis are teachers and interpreters of the law; they are not legislators. They may be able to encourage or persuade the husband voluntarily to deliver the get to his wife. But they cannot force him to do so because the process would then lose its consensual quality and the get would be ineffective for its purpose.
Unfortunately, these established rules of religious law sometimes bring out the worst in people. The giving of the get on these occasions may be used as a tactical devise or blackmailing weapon in relation to the ancillary arrangements for the children of the marriage and for the financial settlement in connection with the civil divorce. Alternatively, the refusal to deliver the get may be motivated simply my malice or spite,driven in turn by jealousy or some other perhaps understandable but nevertheless objectively unreasonable purpose.
That is the background. I want now to comment on the admirably succinct Bill which we have before us. Clause I would amend the Matrimonial Causes Act 1973. It would give a discretion to the court to order that the decree of divorce should not be made absolute until both parties have satisfied the court that—and I paraphrase—they have taken the steps which are necessary to dissolve the religious marriage.
The clause will specifically apply to those who,
"were married in accordance with—the usages of the Jews".
I quote from Section 10A(1)(a)(i), as it would be if the Bill were passed. However, it also has the potential to apply to other religions which could be prescribed by an order made by the Lord Chancellor. Your Lordships can see that by reading the combination of Section 10A(1)(a)(ii) together with Section 10A(6) of what the 1973 Act would look like.
My understanding is that it is unlikely to he necessary for such orders to be made. That is because, as I understand the position, no other religious group has made representations on the point. The power is there on a just-in-case basis. I understand that the issue does not give rise to a problem in English Muslim law, but having little or no expertise on the subject I stand ready to be corrected about that. However, it seems that where informal mediation has failed the United Kingdom Islamic Sharia Council may grant what is called a khula to the wife, which immediately dissolves the marriage and is effective in Islamic religious law. For unsurprising reasons, there are clear analogies

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between the two religions. So a satisfactory solution has been found to deal with the problem so far as concerns UK Muslims.
Clause 1(2) of the Bill would repeal Sections 9(3) and (4) of the Family Law Act 1996. The reason for that is that this Bill does everything that those provisions would have done if they had been brought into force. It is not necessary for me to go into the history of this part of the story, save to say that the principle enshrined in this Bill passed satisfactorily through the legislative process some years ago. However, for reasons which are bound up with other complex provisions in Part II of the 1996 Act, those provisions have never been brought into force. If this Bill were to become law, then those provisions would be otiose and could simply be repealed.
Perhaps I may make a few additional miscellaneous points. First, I can tell noble Lords that a similar approach to the one we are now examining has been adopted in New York State, South Africa and Canada, so there are good, directly applicable precedents drawn from very respectable jurisdictions elsewhere in the world.
Secondly, as can be seen from Clause 2(3), the Bill applies only to England and Wales. It is not intended to apply to Scotland. The reason for that is that I understand that this is a devolved subject and thus is the responsibility of the Scottish Parliament.
Thirdly, and in anticipation of a point which may be made in the course of our debate today, I hope that I have made it plain that nothing in this Bill could impact on or is in any way designed to alter or offend against Jewish religious law. The Bill is a neat procedural mechanism which would improve the inter-relationship between the operation of the civil law and the religious law to the benefit of all concerned. It is supported by the leading rabbinical figures in the Orthodox, Ashkenazi and Sephardi communities, including the Chief Rabbi, Dr Jonathan Sacks; Dayan Ehrentreu and Dayan Toledano, who are respectively the presiding judges of the two principal courts with authority in the United Kingdom. They each give their complete support to the Bill. I am also able to say from my personal knowledge that the late Lord Jakobovits, the previous Chief Rabbi, was of the same view.
I am pleased to say that the Bill is supported by the Government and that my noble friend Lady Scotland of Asthal will be speaking in response to explain the Government's position. Finally, I should like to pay a special tribute to my honourable friend Andrew Dismore, who is the Member of Parliament for Hendon. The Bill began its life under the 10-minute rule in another place and was introduced there by him. On 12th April, it was read a third time and passed in another place. We would not be holding this debate today were it not for the fact that Andrew Dismore has given a great deal of time and effort which will, I hope, result in the permanent improvement of people's lives and get rid of a great deal of unnecessary personal distress.
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I commend the Bill to your Lordships and hope that it will be supported by the whole House.
Moved, That the Bill be now read a second time.—(Lord Grabiner.)
11.16 a.m.
Lord Mackay of Clashfern: My Lords, this Bill contains a provision repealing two subsections of the Family Law Act 1996. Since I was responsible for taking that Bill through your Lordships' House, it might be thought that I would object to this particular provision. On the contrary, the problem dealt with by this Bill has been admirably and succinctly described by the noble Lord, Lord Grabiner. It is a problem with which those of us who are concerned with the civil law have been familiar for some time. The subsections in the Family Law Act referred to in this Bill were designed to deal with it. Therefore I had thought that we had solved the problem in 1996.
For reasons into which I need not go, that has not so far produced the fruit that I had hoped for in 1996. Noble Lords will know that legislators are often disappointed when the results of their labours do not bring forth the fruit they had expected. However, better late than never. As the noble Lord, Lord Grabiner, has already pointed out, now that the Bill in its present form has passed through the House of Commons, I hope that it will now pass swiftly through this House. I hope then that finally the problem will be resolved.
I should like to add that I too had personal knowledge of the support of the late Lord Jakobovits in this matter, along with those who were in authority in the various rabbinical and courtly bodies of the time. I am glad to know that that position still obtains. So I wish the Bill every success and hope that it will pass into law very quickly.
11.18 a.m.
Lord Mishcon: My Lords, first, if I have learnt anything over the 25 happy years that I have been privileged to spend in your Lordships' House, it is that noble Lords do not look with disfavour on short speeches.
Secondly, your Lordships do not approve of speakers who repeat arguments and thoughts that have been expressed previously in far better language by the second Peer to address the House.
If I may, I want to say only this. The advantages of the Bill in relieving suffering—I use that word advisedly—have been so succinctly expressed by my noble friend Lord Grabiner—the noble and learned Lord Mackay of Clashfern pointed that out—that it is quite unnecessary for me to repeat them.
I sit down with these words only: how pleasant it is for members of one faith to be able to assist members of another faith without in any way giving up one iota of their own beliefs.
11.20 a.m.
Lord Jacobs: My Lords, I was about to begin by saying that I shall not detain your Lordships long, but having heard the noble Lord, Lord Mishcon, speak for only one minute, I am afraid that I shall exceed that time by a little.
I am deeply in sympathy with the objectives of the Bill and strongly support anything that can be done to assist those unfortunate women to secure relief from husbands who can legally divorce them, yet refuse to allow them to remarry under Jewish religious law.
This is the second Private Member's Bill on the subject that the House has considered. The first was piloted through the House by my noble friend Lord Lester pretty successfully, with the support of many of your Lordships. However, that Bill was objected to in the other place for no good reason whatever. The claimed reason was that the Bill had not received adequate consideration or debate. That was palpably untrue. It is a pity that the Government cannot do anything to prevent such a frivolous objection, which was a total waste of your Lordships' time. I hope that this second Bill will be successfully passed in due course.
However, as a member of the Jewish faith, I am concerned that the learned rabbis in this country and elsewhere have failed to find a way to resolve the issue. As I understand it, the argument has always been that the Sanhedrin the religious governing body for Jews, which could change laws—ceased to exist about 2.000 years ago. Nothing has apparently replaced it. I find that explanation almost unbelievable. I therefore have a question for the Chief Rabbi, Dr Jonathan Sacks: if, for example, there had been an ancient law that when Jews died they had to be cremated and, furthermore, if a wife predeceased her husband, her husband would be cremated at the same time, are we seriously to believe that because the Sanhedrin no longer existed, the rabbis would have been unable to find a way to resolve that problem? I venture to suggest—I am sure that your Lordships will agree—that they would have resolved that issue very quickly, notwithstanding the fact that the Sanhedrin no longer exists.
There seems to be a wilful resistance by the religious authorities in Jewish communities of all countries to resolve the issue. It is for men to make the decision. If men were the sufferers, they would have found a solution. It is only because the problem does not affect men that they rely on numerous religious objections to resolve the issue. I know that Jewish religious leaders will strongly resist this explanation, but I find their explanations for being unable to do anything simply pathetic.
I am pleased that, with the Government's help, the British Parliament can pass a Bill that will, in a small way, alleviate the problem that prevents Jewish women divorced under the law remarrying without their husbands' permission. This is not a complete solution to the problem and the responsibility remains with the Jewish religious authorities to find a complete solution. They should get their act together and find one.
11.23 a.m.
The Lord Bishop of Guildford: My Lords, I, too, shall be brief. I hope that it will not be considered an impertinence for someone from these Benches to comment on the Bill. I thought it might be valuable to give our support for it.
I have two brief general points to make. First, when there is an experience of human need in a particular community and when the leaders of those faith communities come to Parliament to seek some assistance, we have an obligation to respond constructively. I say to the noble Lord, Lord Jacobs, that we should be careful not to intrude on the internal theological and legal debates of different religious traditions. I do not think that Parliament would be wise to enter into that area.
When we have such strong representation from our Jewish brothers, sisters and friends, we should seek to be sympathetic and helpful to help them fulfil their pastoral responsibility to their members. That is what we are being asked to do and it seems to me a proper principle for parliamentary action.
Secondly, the passing of the Bill would be timely. I support the comments of the noble and learned Lord, Lord Mackay, about the need for the issue to be addressed, given what has happened to the legislation that he steered through Parliament. Moreover, at a moment when unpleasant forces are raising their ugly heads in European politics and in some of our own communities, causing harm and anxiety to minority communities, including our Jewish friends, a clear signal from Parliament that we are here to defend their interests and encourage their life in the community would be very welcome. I support the Bill.
11.26 a.m.
Lord Clinton-Davis: My Lords, I congratulate my noble friend Lord Grabiner for ensuring that we debate the issue today. It would be unkind if I were to omit to mention my honourable friend Andrew Dismore, Member of Parliament, who has undertaken an enormous amount of research on the Bill. I remember meeting him in his constituency at the time of the last election. Amid all the problems he had, he mentioned the possibility of introducing this Bill. I also thank the noble Lord, Lord Lester, for what he has done, particularly on the Bill that he introduced some time ago, which was along much the same lines.
To my certain knowledge, the Bill rectifies a serious wrong inflicted on partners of the Jewish faith who, in the case of marital breakdown, are unable to remarry under their religious law because their spouses refuse to grant a religious divorce, known in Jewish law as a get. As I understand it, the husband is obliged to serve the get on the wife. In the absence of its delivery, she is obliged to remained chained in a union which may long have ceased practically to exist or meet her needs and which may have caused her undue suffering. A husband is able to withhold the get if bitterness, anger and jealousy have come to dominate his feelings. That refusal can become for him a potent form of emotional blackmail and can be used to impose intolerable

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conditions on the wife relating to finance or, even worse, to matters concerning the children of the union. That is a most important issue, although it has not been mentioned specifically today.
I underline the profoundly unfair position that women in particular have to endure. Of course a wife can remarry in a civil ceremony, but the ancient Jewish law—which, save for the enactment of this Bill, is immutable—will be unable to recognise her new status. For observant Jews, this will not be an option which is open to them. Marriage for them is a sacrament. In any event, the status of children born of the new marriage would be considered illegitimate because the marriage would be disregarded and the relationship considered adulterous.
The withholding of a get puts a recalcitrant husband in an impossibly superior position. He may not be strictly observant, but he can use the situation to his advantage and even seek to impose conditions, which he lays down, relating to finance or, possibly worse still, matters concerning their children. In this day and age women should not be placed in this predicament. That is something that the Bill recognises. In future, under the Bill a religious marriage would first have to be dissolved before a decree absolute was granted by a civil court.
As my noble friend pointed out, the Bill is welcomed by most members of the Jewish religion. In my view, it is long overdue. My noble friend is trying to equalise standards and rights, and the Bill has been specifically drafted to comply with human rights legislation. As he said, it is supported by the Chief Rabbi, the Board of Deputies of British Jews and the Jewish Marriage Council. They are not inviting the civil law to solve a Jewish problem but to end a serious anomaly whereby a Jewish faith marriage is also a civil one but a civil divorce may not be accompanied by a religious divorce.
I hope that a way can be found for a similar Bill to be enacted in Scotland where family law has been devolved to the Scottish Parliament. I understand that Jim Murphy, a Member of Parliament, is seeking to introduce procedures which could extend the provisions of this Bill over the Border. Although that is essentially for another day, I invite the Minister or my noble friend to say something about that.
Concerns have also been raised about the exclusivity of the Bill. The hope is that other faiths which may encounter similar problems for which redress is sought could use the provisions in the Bill to seek a remedy. At present, it seems that this particular difficulty applies only in the Jewish religion, where the supreme jurisdiction, the Sanhedrin, which has been referred to by many of my noble friends, was destroyed nearly 2,000 years ago. The Jewish religious laws have remained set in stone to this day.
Understandably, the Bill is not a complete cure-all—it will not be retrospective—but it will vastly ameliorate the plight of potential victims of this situation. I believe that it will be profoundly welcomed by our Jewish women citizens and the community at large.
11.35 a.m.
Lord Simon of Glaisdale: My Lords, I was raised outside the Jewish religious community. I venture to intervene in support of the Bill by reason of the responsibility I formerly had in the jurisdiction to which the procedures under the Bill are vouchsafed.
In the course of those responsibilities one came across what the noble Lord, Lord Grabiner, described rightly as "limping marriages". Though not in the context of the Bill, they were always liable to cause hardship and they frequently did cause hardship. In the context of this Bill they are particularly objectionable because, as the noble Lord explained in his marvellously lucid exposition, it can lead to a blackmail of the wife.
The other matter that arises from such experience that I had is the question of whether the jurisdiction is manageable. It was rightly said on the previous occasion that it would not be an easy jurisdiction to exercise. But High Court judges are not appointed to exercise easy jurisdiction. I have little doubt, particularly in these days when the judges of the Family Court have to deal with the interplay of law and ethics so frequently, that it is manageable. But it is really for the noble Baroness who is to reply, who has had more recent experience of that jurisdiction than I—and who has no doubt consulted the learned president—to say whether it is manageable. I have little doubt that it is.
A question raised by the noble Baroness, Lady Miller, on the previous occasion was whether it is desirable. Certainly it is in general undesirable that a secular tribunal should interfere to enforce sanctions on religious procedures. But this is a peculiar case. The court is not intervening to sanction religious procedures; it is asked to intervene to correct an injustice.
I submit that in general it is undesirable, even under our constitution which does not have the rigid division between Church and state that the United States has—its constitution is based on the division of power whereas ours is based on the balance of power. But it is notable that the State of New York has introduced legislation similar to that which is proposed here, as has Canada; and Israel has taken a measure which promotes the same end in a different way.
In this case, there is an overwhelming invitation from the religious authorities to Parliament to intervene. This is purely procedural, and there is a model that has already been established in Pakistan. Pakistan, like orthodox Jewry, is bound in its matrimonial law by scriptural authority. That cannot be altered. However, a procedural step was introduced to prevent that authority being harshly and unfairly operated.
Therefore, whatever the general position, I strongly support the Bill.
11.41 a.m.
Lord Haskel: My Lords, I congratulate my noble friend on piloting the Bill through this House. He is performing an important service for the Jewish

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community and we are all grateful to him. I also thank the noble Lord, Lord Lester, and Mr Dismore in another place, who have both been involved in this attempt, and in earlier attempts, to pass this legislation. This is the third time that the introduction of such a measure has been attempted. It was attempted twice previously in the form of a Private Member's Bill. I hope that this will be a case of third time lucky.
As the noble Lord, Lord Jacobs, reminded us, the previous attempt failed because, in another place, the matter of divorce was considered to be an inappropriate use of the Private Member's Bill route. I agree with the noble Lord: I do not believe that it is. I supported the Private Member's Bill that came before this House about two years ago. It dealt with a specific problem relating to Jewish divorce. It was tightly drawn—the noble Lord, Lord Grabiner, described it as "succinct"—but in such a way as to include other religious faiths if necessary. The argument that it deals with one faith in favour of another does not stand.
As my noble friend explained, the Bill deals with divorce within the Jewish faith. As the noble Lord, Lord Jacobs, said, the argument for using the civil law to solve a religious problem is that religious law can be changed only by the Sanhedrin and, as it can meet only at the Temple, it has not met since the destruction of the Temple some 2,000 years ago. I must confess that, like the noble Lord, Lord Jacobs, I, too, am slightly sceptical about this.
To carry the noble Lord's argument further, I understand that other religious laws have been modified by virtue of a dictum by a rabbi who lived in Mainz, in Germany, from 960 to 1028. His dictum said that when there was a conflict between religious law and civil law, the law of the land was the law. Its original purpose, interestingly, was to deal with the number of wives that Jewish men could have, depending on whether they lived in an Islamic country or in a Christian country. That dictum still applies.
That is why, since then, Jews have been able to live within their faith and within the law in many countries. It was a clever thing to do all those years ago. That is why chained women are entitled to ask: if the law of the land is the law, and equal rights became law in 1976 and the European Convention on Human Rights was incorporated into British law in 1999, why are they still chained? Perhaps one of the eminent lawyers present can explain that point.
Happily, the Bill is not being foisted on the Jewish community. It has the support of the religious authorities, not only from the orthodox community but also from the liberal and representative organisations in the community. As my noble friend Lord Clinton-Davis, reminded us, it has the support of the Jewish Marriage Council, which does excellent work in resolving difficulties in marriage and has tried to resolve disputes over the get.
Furthermore, I welcome the Bill because it puts right a wrong which applies equally to men and to women. Women are wronged because they cannot
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remarry within the faith without a get and the men who wish to marry such women are, of course, also wronged.
However, I have two regrets in relation to the Bill. The first is that no way could be found of making its provision retrospective. I should declare that I have attended demonstrations and other events calling on the Chief Rabbi to deal with the matter of the tied women—sometimes, I must add, in the company of the noble Baroness, Lady Miller, and her sister. I regret that the Bill will not put right the injustices done to the existing chained women. They fought for this legislation, and they deserve our thanks. I hope that they will get some satisfaction from the knowledge that they will be the last of the chained women in Britain. But, sadly, they will remain chained.
I also congratulate those more liberal rabbis, particularly in the United States, who have found it possible to move with the times and to gram religious annulments to chained women, enabling them to remarry within the Jewish faith. These rabbis obviously shared my second regret, which is a feeling of discomfort that the Jewish faith has had to involve the civil courts to solve a religious problem. Judaism is such a humane and practical faith that I cannot help feeling awkward that rabbis have had to resort to the civil law to resolve a matter of equal rights between men and women. It is such a basic matter.
However, these are only regrets, not objections. I welcome the Bill and wish it every success.
11.47 a.m.
Lord Lester of Herne Hill: My Lords, we on these Benches support the Bill as a necessary measure to mitigate the rigours of Jewish religious divorce law.
I am Jewish, but I am not a practising religious Jew, nor am I an expert in Jewish law. I am glad that, this time, the Bill is being steered through this House by the noble Lord, Lord Grabiner, whose credentials for doing so are rather better than mine.
The Bill is of significant symbolic value and it may work successfully in some cases in mitigating the harsh effects of the archaic and unjust features of Jewish divorce law by persuading unreasonable parties that they must act reasonably when their marriages have failed.
I pay tribute, as other speakers have done, to the noble and learned Lord, Lord Mackay of Clashfern, who first introduced liberating legislation on this subject, which, unfortunately, was not able to be brought into force.
As the noble Lord, Lord Clinton-Davis, and the noble and learned Lord, Lord Simon of Glaisdale, among others, have explained, the mischief arises from the fact that a refusal by one spouse, usually the husband, to give or accept a get creates a form of "limping marriage" where there has been a civil divorce. The woman is chained to her husband; she is what is known as an agunah, aptly described by Professor Michael Freeman, a member of the Law

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Faculty of University College, London, as being "a hostage to a dead marriage" who can be held to ransom to secure her release.
Ever since the Marriage Act of 1836, the civil law has recognised a synagogue marriage as legally valid, and no separate civil marriage is needed. Yet in dissolving that dual bond of divorce, English law requires only the civil marriage to be revoked while leaving the religious bond intact. If one of the parties remarries, content with only a civil divorce, the other party, who may regard the religious marriage as still valid, cannot remarry until a religious divorce has been obtained.
The prevailing orthodox view is that a husband cannot be compelled to grant his wife a get, even if she finds life with husband impossible and is justified in wishing to obtain a divorce. The relevant religious law derives from Chapter 24 of the Book of Deuteronomy, which reads:
"And he shall write for her a deed of divorcement and give it in her hand".
The view of the great Jewish scholar and philosopher, Maimonides, the most influential Jewish scholar of the Middle Ages, to whom the noble Lord, Lord Haskel, has referred, was that the husband can be compelled in such a case to grant his wife a get since, in his words,
"she is not like a prisoner who has to submit to a sexual relationship with a person she finds repugnant".
But, most unfortunately, Maimonides' humane and practical view was not and is not shared by many leading orthodox Jewish jurists who adopt a literal rather than a purposive interpretation of this part of the Bible. Despite his immense authority, Maimonides' view is considered unacceptable by many orthodox rabbis. As Professor Freeman has aptly commented,
"it is a sad reflection of our times that Jewish law was interpreted more liberally in the 12th century than it is today".
I share that view.
For 1,500 years, as the noble Lord, Lord Jacobs, has explained, ever since the destruction of the Temple in Jerusalem and the abolition of the Sanhedrin, there has been no supreme judicial authority with power to interpret Jewish law and to enact ordinances binding on the entire Jewish world. This is a major impediment to the reform of the law. But it is also true that the male orthodox rabbinate around the world has not been conspicuous in seeking to reform Jewish marriage and divorce law, praying in aid what the noble Lord, Lord Grabiner, referred to as its "immutability". I—speaking for myself; I speak personally, of course—have great sympathy with the views expressed by my noble friend Lord Jacobs and the noble Lord, Lord Haskel. However, I agree with the right reverend Prelate the Bishop of Guildford that it is a matter not for Parliament but for the Jewish religious community and its leaders and, for that matter, any other religious community with similar problems.
On 26th April a fine obituary was published in The Times about the great Deputy President of the Israeli Supreme Court, Justice Haim Cohen, who was
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instrumental in implementing the transition of the legal system from British Mandate Palestine to the independent state of Israel in 1948. The obituary recalled Justice Cohen's clashes with the rabbinate which, under the dispensation reached with David Ben Gurion, Israel's first and highly secular Prime Minister, governed marriage. Justice Cohen challenged their rigid categorisation, calling for civil marriage, which would allow cross-religion marriages. Justice Cohen lost that important battle.
In this country, there is no such problem, because Lord Hardwicke's retrograde Marriage Act has long since been amended to allow civil and non-Christian marriages and divorces, alongside recognition of religious marriages and divorces. Like others who have spoken in this debate, as I hope I have made clear, I regret that it should be necessary for the religious and secular leaders of the orthodox Jewish community to seek the aid of Parliament to enact legislation enabling our civil courts to alleviate the injustice and misery resulting from a literal interpretation of the Bible. I hope that the enactment of this Bill will not encourage anyone to think that the underlying problems have been solved. This is a mitigating Bill, but it does not solve those problems. They will be solved if and only if the necessary leadership is found, here and elsewhere, in the orthodox community. However, as all noble Lords have said, Parliament can and should do its best to respect religious freedom and diversity in a manner compatible with fundamental human rights. The Bill goes some way in that direction, and it deserves our support.
I should like to say a few words about the position of other religions. As has been explained, the Bill provides a facility not only for orthodox Jews but for what are described as,
"any other prescribed religious usages".
That was inserted into the Bill that I introduced because the Government had obtained an opinion from Mr Rabinder Singh QC pointing out that my Bill discriminated against other religions by singling out the Jewish religion. I was given a taste of my own human rights medicine, and Mr Singh was perfectly right. That is why the option is put into this Bill to remove that inequality of treatment. The option does, however, depend on the religious community itself— whether it be Jewish. Muslim or any other religious minority—wishing to take advantage of the Bill and then asking the Lord Chancellor to prescribe the religion for that purpose.
I mention that because the noble Lord, Lord Grabiner, and I have both been under the impression that there is no similar problem under British Muslim divorce law. However, as a result of a conversation that I have had with a Muslim Member of this House who may wish to take part in later debates, I simply would like to say that it is not wholly clear now that there are not similar problems for British Muslim wives who may, for example, be under great pressure to return their dowries before they can obtain a satisfactory divorce. It is not a matter for me or for any other noble Lord who has spoken because none of us is an expert or member of that great community. But

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I thought it right to mention that, as it has been mentioned specifically to me by the noble Lord, Lord Ahmed, who regretted the fact that he could not take part in t his debate.
Finally, I am glad to say that the Joint Select Commit tee on Human Rights, on which I serve, found nothing in this Bill to draw to the attention of either House as being in any way incompatible with human rights. I hope that the House will agree that the Bill is not only compatible with but advances human rights.
11.57 a.m.
Baroness Miller of Hendon: My Lords, I rise to support this Bill which has passed through the other place with support from all sides. As the noble Lord, Lord Grabiner, said in introducing it so well, the Bill also has the support of the Jewish religious authorities, from the most orthodox to the most liberal, including the Chief Rabbis, the Board of Deputies and the Jewish Marriage Council.
As noble Lords may well remember—the noble Lord, Lord Grabiner, certainly will—on 30th June 2000, a similar Bill received its Second Reading in this Chamber, introduced equally admirably by the noble Lord, Lord Lester of Herne Hill. In the intervening period, I have carefully reread all the speeches made in that debate. I know that noble Lords will forgive me when I say that I have particularly scrutinised, with extra special care, my own contribution on that occasion.
I supported the aims of that Bill and certainly did not oppose its Second Reading, although I was very concerned that the orthodox Jewish religious authorities were unable to find their own solution to this problem. It is very interesting that the noble Lords, Lord Jacobs, Lord Haskel and, indeed, Lord Lester, have made that point today. I would also say to the right reverend Prelate the Bishop of Guildford that I doubt there is any Jew anywhere who is not grateful for the stand he is taking and that the Christian authorities are hopeful that we can now get this right.
We were not suggesting that Parliament should not interfere. We were simply saying that it is a pity that we have had to go to Parliament to find a solution when we truly believe that the religious authorities could have found one if they had truly wanted and put their minds to it. As noble Lords have said, if Maimonides thought that such a solution was okay, that solution could have been accepted. It is a question of how the authorities want to interpret matters. Nevertheless, in June 2000—I ask noble Lords again to excuse me for quoting myself—I concluded my speech by saying,
"I ask noble Lords to give the Bill a Second Reading so that we can at least take one small step in the right direction".—[Official Report, 30/06/02; col. 1255.]
Today, on behalf of these Benches, I urge noble Lords to do the same.
In opening, the noble Lord, Lord Grabiner, explained the Bill's details with great clarity, and there would be absolutely no purpose in my trying to add anything more. As we know, the Bill was introduced
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on 23rd October 2001 by the honourable Member for Hendon, passed through all its stages in the other place, and has now arrived here. The present Bill that we are considering also replicates subsections (3) and (4) of Section 9 of the Family Law Act 1996 which were contained in Part II of that Act which, of course, has not yet been brought into effect. My noble and learned friend Lord Mackay of Clashfern may remember that at the time that Act proceeded through the House I explained my views to him and told him what a shame it was that our religion could not sort out those matters.
This is the third time that these provisions have been brought before Parliament. There is no way that anyone can say that they have not, been properly discussed. Two noble Lords mentioned the views of Lord Jakobovits. About three or four months before Lord Jakobovits died, I had coffee with him in his lounge. I believe that this subject also came up when the noble Lord, Lord Mishcon, and I dined at the house of Lord Jakobovits. However, on the occasion I took coffee with Lord Jakobovits he told me that when his father was dying he told him that the only regret he had was that he had not been able to deal with this matter. Lord Jakobovits said how pleased he was that he had been able to work with my noble and learned friend and that they had got as far as they had even though the relevant measure had not been implemented.
As I said earlier, the Bill is supported on all sides of both Houses. I hope that it will be well received once again and that it will be speedily enacted.
12.1 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I say straight away what a great pleasure it is for me to respond to the debate on behalf of the Government and to find myself in such uniquely august and good company.
The noble and learned Lord, Lord Mackay of Clashfern, among others, described the speech of my noble friend Lord Grabiner as admirable and succinct. I can do no more than agree with him. I also applaud the brevity and content of the speech of the noble Lord, Lord Mishcon. He gave voice to the pleasure that this debate has given and the comity which it has revealed between religions. I should very much like to follow his lead and sit down but I fear that it may be necessary to say a little more. I find myself in charity with all that has been said so well by all noble Lords.
I add my voice to those who have congratulated my honourable friend the Member for Hendon, Andrew Dismore, and the noble Lord, Lord Lester, and others for all the efforts they have historically made in this regard. Their efforts have not been in vain. I say to the noble and learned Lord, Lord Mackay of Clashfern, that I hope that this Bill will be the salve to the legislator's grief at not having his Bill implemented.
The Government's policy on irretrievable family breakdown is to try to reduce acrimony and conflict to a minimum, especially where children are involved. It

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is hard to imagine a situation where there is more acrimony and conflict than in a "limping" marriage. The Government are acutely aware of the distressing consequences for the women and children caught in those circumstances. That is why the Government wholeheartedly support this Bill.
As your Lordships will be aware, the provisions of the Bill reflect those in Section 9(3) and (4) of Part II of the Family Law Act 1996 which was incorporated into the Family Law Act following an amendment tabled in your Lordships' House by Lord Meston who now graces the Circuit Bench and, alas, no longer sits in this House. His contribution should be recognised. He is missed by the Liberal Democrat Benches and, indeed, by this House.
On 16th January last year, my noble and learned friend the Lord Chancellor announced that—based on the evidence from pilots and concerns expressed by the judiciary and others—the Government regrettably did not intend to proceed with the implementation of Part II. I say "regrettably" because noble Lords will know that it was not possible to implement Section 9(3) and (4) independently because its provisions are procedurally linked with the other provisions of Part II.
The noble and learned Lord the Lord Chancellor further announced that he proposed to invite Parliament to repeal the relevant sections of the Family Law Act when a suitable legislative opportunity was available. We remain committed to the principles set out in Part I of the Act; namely, saving saveable marriages and bringing marriages which have broken down to an end with the minimum distress to the parties and children affected. It is our belief that the Bill will greatly assist that end.
The Bill before your Lordships' House today is, therefore, a little unusual in that it seeks to re-enact provisions already passed by Parliament. However, I hope that your Lordships will agree that it is right and proper that we now make this attempt so to do.
The loss of the opportunity to bring these provisions into force was an unwanted but unavoidable consequence of the decision not to proceed with Part II. My noble friend's Bill is, therefore, the vehicle by which those sections can be implemented without the rest of Part II and takes the opportunity to repeal those sections in the Family Law Act. I hope that at least part of that will give noble Lords a great deal of pleasure.
Many have said—I should like to echo this—that leading representatives of the Jewish community, including the Chief Rabbi Dr Jonathan Sacks and members of the Board of Deputies of British Jews, have put a compelling case to the Government on the need to provide a remedy for those Jewish women who face difficulties in seeking a religious divorce. I pay particular tribute to Her Honour Judge Myrella Cohen QC and Eleanor Platt QC of the Board of Deputies of British Jews who have worked so hard for so long on behalf of "chained" women. I should also
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like to express my thanks to them for their help in assisting the Government to understand the complex issues involved in this difficult area.
As other noble Lords have explained, the Bill would enable the court, where it considers it appropriate, to order that a decree of divorce is not to be made absolute until a declaration is made by both parties that they have taken the necessary steps to obtain a religious divorce. This would mean that the legal divorce would not be finalised until the religious divorce had been provided. The effect of the Bill, therefore, is to place the parties on an equal footing —neither would be able to remarry until both agreed to a religious divorce. After a religious divorce both would be free to remarry in a synagogue in a religious ceremony. I very much echo what was said by my noble friend Lord Haskel; namely, that that would give real benefit and relief not just to the women who are so "chained" but also to the men who wish to marry them. I reassure the noble and learned Lord, Lord Simon of Glaisdale, that we are confident that Her Majesty's judges will be able to deal effectively with this issue if it is entrusted to them. We do not see that that would be a difficulty.
Some have expressed concern that my noble friend's Bill seeks to legislate in what are essentially matters of religious doctrine and custom. However, I believe that the tone of the contributions made by other noble Lords has graphically illustrated that that is not the case. The Government are satisfied that my noble friend's Bill does not seek to involve the civil courts in questions of Jewish religious law. The Bill seeks only to enable the court, when dealing with an application for a civil divorce, to withhold the decree absolute until the parties have taken the necessary steps to acquire a religious divorce from a Beth Din.
The Bill will apply to Jewish religious marriages because the Jewish community has asked Parliament's help to address the problem of "limping" marriages. However, as the noble Lord, Lord Lester, said, the Bill also contains provision for the Lord Chancellor to extend its provisions to other religious groups should they so wish. There is, of course, no question of the Government seeking to extend these provisions to other faith groups in the absence of any demand from them to do so.
I should like briefly to respond to the observations of my noble friend Lord Clinton-Davis on the position in Scotland. Family law, as noble Lords will know, is devolved to the Scottish Parliament. We understand that the Scottish Executive is drafting a family law Bill, which will include the same provisions as this Bill. Officials in our department spoke last week to Scottish Executive officials, who informed us that their Bill was unlikely to be introduced before next year's Session of the Scottish Parliament. However, the matter has been within their contemplation.
The Bill has rightly been welcomed by all of us. I wish it Godspeed and hope that it will pass swiftly into law, so that those women who currently are chained can be set free.
12.10 p.m.
Lord Grabiner: My Lords, this has been a most excellent debate in every respect. Its succinctness is high on the list of elements about it that I strongly commend. There is one downside to such a debate; that is, that we must not continue being too much in agreement with each other because we should swiftly talk ourselves out of a job.
I thank all noble Lords for their contributions, which have been extremely well informed. There has been unanimity on all of the matters with which we are essentially concerned. I want to pick up a point made by the noble Lords, Lord Jacobs and Lord Lester, and by my noble friend Lord Haskel. Essentially, their point was that there are grounds for criticising rabbis for not taking a grip of the problem and dealing with it, so to speak, in a man-made way; for leaving the law set in concrete when it might well have been possible or should have been possible—there are varying degrees of view—for them to have acted. I respectfully agree with and adopt the response of the right reverend Prelate the Bishop of Guildford. It is not appropriate to get involved in an internecine debate on matters that give rise to genuine differences of view in relation to religious matters about which there is a great deal of debate.
It may also be worth bearing in mind the fact that the essential distinction, as I have always understood it. between Christianity and Judaism is that Christians believe that the Messiah has been and that Jews still await that day. If we have to wait for the messianic appearance of a Maimonides-type character to resolve this problem, it could take another 2,000 years. That would be a deeply unsatisfactory way of dealing with a current and practical problem. I am sure that all noble Lords, including the noble Lords, Lord Jacobs and Lord Lester, and my noble friend Lord Haskel, will agree that there is every practical justification for the proposed legislation.
Lord Lester of Herne Hill: My Lords, since I brought in an identical Bill, I could hardly do other than support this Bill. Does the noble Lord agree that one of the attractive features of the Jewish community is that for every 100 Jews there are 100 different opinions?
Lord Mishcon: My Lords, I rise to correct the noble Lord; there are 101.
Lord Grabiner: My Lords, I was going to make much the same point. I recollect an ancient story with which all noble Lords will be familiar. Two Jews on a desert island agree that the immediate solution to their problem is to build three synagogues because there has to be one that neither of them will go to. There is more truth in that than noble Lords may imagine.
I want to deal with one other point, which was raised by my noble friend Lord Haskel. He was concerned that the Bill did not deal with his point about "retrospectivity"; in other words, it is not possible now to do anything about cases that occurred in the past. There are two problems with that, as I am sure all
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noble Lords realise. One is a natural inclination—rightly so—against the introduction of retrospective legislation. The other is that it would produce a direct conflict between civil and religious law. The beauty of the Bill is that it does no such thing. Although I agree with the sentiments that my noble friend expressed, I am afraid that, for practical purposes, it is simply not possible to deal with that problem. There is no point in delaying matters any longer. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Copyright, etc. and Trade Marks (Offences and Enforcement) Bill
12.15 p.m.
Lord Razzall: My Lords, I beg to move that this Bill be now read a second time.
For those who have not followed the history of this Bill, it started as a Private Member's Bill in the other place under the auspices of Dr Cable, who piloted it through the other place. It had, I believe, almost unanimous support from all quarters of the House and I very much hope that we can continue to get such cross-party support in this House. I await with interest the Minister's response to the Bill. I have had substantial help from officials in the Department for Trade and Industry in relation to the Bill. In the light of that, if the Minister is not supportive of the Bill, those officials must have been acting without his authority.
The Bill may appear to noble Lords to be somewhat long and complex. However, it is not particularly complex in practice. The concepts that lie behind it are quite simple. The underlying theme—the only underlying theme—is that of fighting crime. In considering the Bill, it is important for noble Lords to appreciate what it does not do. It does not create any new offences. Someone who is not committing an offence today will not be committing an offence in the future as a result of the Bill. For anyone who is committing an offence today, the consequences will undoubtedly be different if the Bill passes into law.
It is worth touching on the importance of the matter with which the Bill deals. People tend to talk about victimless crime but intellectual property offences and intellectual property theft can be very serious matters. The regulatory assessment that has, I believe, been placed in the Library contains the calculation that that industry—if we can call criminal activity an industry—costs about £8 billion a year.
However, it is not simply the business community that we wish to protect further through the Bill; we should also consider the obvious effect on consumers. That is a contemporary problem. I guarantee that today, following the successful launch of the latest "Star Wars" film, a significant number of counterfeit DVDs and videos will already have been sold. They will give consumers who buy them a most unsatisfactory viewing of the film that they hope to watch. That problem is not restricted to DVDs and

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videos. Much more serious issues are involved: cosmetics that include irritants, toys with sharp and dangerous parts and software that damages the whole PC.
The effect on jobs, including the effect at the local level in the high streets, is another area that the Bill is designed to regulate. The regulatory assessment indicates that there are proven links with organised crime. This is a very serious matter. Offences already exist to deal with the illegal activity and they are not changed by the Bill, which seeks to change the method by which those offences are enforced.
There are significant problems arising from enforcement. The purpose of the Bill is to make it more straightforward and transparent in dealing with the offences and in the way in which people committing those offences might be punished. The latter is particularly important because it is necessary to ensure that the Bill improves deterrence and that people committing offences fear that they may be caught or punished. We are all aware that that is the best way of dealing with any crime.
The Bill will have three effects. First, it will increase transparency; secondly, it will improve deterrence; and, thirdly, it will introduce fairness. In delivering these three things the Bill does nothing completely new. It copies the best existing criminal provisions in one IP area into others and so might well be called a rationalisation or harmonisation measure. It would also be fair to say that every measure in the Bill has been scrutinised in the House at some stage in the past in the context of enforcement against IP crime, although not necessarily for the particular type of IP crime for which the Bill now provides.
The current position is, therefore, that criminal provisions exist in the trade marks area on the one hand and copyright related areas on the other. We have legislated on these at different times in the past. We had trade mark legislation in 1994 and copyright legislation in 1988, but for no very clear reason significant differences have arisen. The first purpose of the Bill is to removed some of those unjustified differences.
The existing differences between IP areas do not make sense. They can confuse enforcers and mislead criminals into thinking that some IP crimes can never be as serious as others. That is obviously not the case as a copyright crime can lead to just as much money being lost by rights holders, just as many job losses, and just as many consumers being cheated in the same manner as in a trade mark crime. Both types of crime can have links to serious organised crime. It is no good just looking at what the Bill does for copyright. We need to know that that has already been effectively achieved in the trade marks area, too.
Perhaps I may summarise what the Bill seeks to do. However, I do not want to prejudge the work that we shall do in Committee. First, the Bill tackles harmonisation of maximum penalties. If theft of a trade mark and of a copyright are equally serious, they should attract the same maximum penalty. That is the
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first objective of the Bill. The penalty, which currently exists only for trade marks, is an unlimited fine and/or up to 10 years' imprisonment. It is not easy to see why the maximum term of imprisonment should be only two years for a copyright offence when 10 years has been set as the maximum sentence for a trade mark crime.
The second area dealt with by the Bill is catching criminals. The Bill attempts to make it easier for the police to catch what one might describe as intellectual property thieves. They need to have the right tools to look for evidence when appropriate. That is why the Bill applies more widely into the overall IP crime area the very useful search warrant provision in the copyright area. In its threats assessment published in August 2001, the National Criminal Intelligence Service, as I have already mentioned, indicated that profits from intellectual property theft can help organised crime groups to become more established and also to fund other criminal activity. So investigating intellectual property crime is undoubtedly a way for police to break up other criminal activity.
I should emphasise here that the offences to which the search warrant provisions apply are all about commercial dealing in illegal material. The offences are not strict liability offences as they involve a test of knowledge; in other words, the person who is to be prosecuted cannot have been entirely without any information suggesting that what they were doing was wrong. In addition, a justice of the peace or sheriff will need to be satisfied that there are grounds for believing that an offence has been, or may about to be, committed before granting a search warrant. So people copying material for private use and even consumers buying fakes have nothing to fear as they are not caught by the offences set out in the Bill. I am not suggesting that they should buy fakes or copy material for private use.
I understand that enforcers can already very often find a way of tackling offending behaviour in the copyright area by pursuing other offences to which a higher sentence can apply. There can even be ways around the inadequate search warrant provisions by reading intellectual property offences into offences such as conspiracy to defraud. Indeed, there is a good deal of overlap between the different intellectual property offences, as illegal material which infringes copyright often also carries an illegal trade mark. On that basis it has been said that the Bill is unnecessary. But I would argue that this only shows the need for greater transparency so that no one is left in any doubt about the consequences of an offence and how it might be tackled.
To illustrate that point I give the hypothetical example in the world of physical rather than intellectual property. Let us suppose that we had higher penalties for stealing electronic components than television sets. Would not noble Lords agree that the law has sufficient transparency if a person who breaks into a warehouse and steals a lorry load of television sets is prosecuted for stealing electronic components as that attracts a higher penalty? That is

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the kind of illogicality which the Bill attempts to eradicate in the intellectual rather than the physical property area.
Finally, in the Bill there are provisions on forfeiture of illegal material which appear to be somewhat intimidating because of their complexity. I shall be happy to explain them at the Committee stage and, I hope, with the continued assistance of officials. There is a great deal of necessary repetition in the way the provisions have been written out in the Bill. There is a provision for copyright offences and one for each of the related areas of performers' rights and unauthorised decoders such as smart cards and satellite television. That makes three nearly identical provisions. In each case there is a slightly different version for Scotland, making six almost identical provisions in total. The forfeiture provisions only allow the courts to order forfeiture of goods that have been seized as evidence during an investigation where the court is satisfied that the goods are illegal because they infringe copyright or a related right. These provisions are modelled on the existing provision in trade marks law.
In summary, I believe that the Bill removes some of the unhelpful inconsistencies between the different areas of intellectual property law where there are offences relating to theft of intellectual property. The Bill passed through another place without controversy. I urge noble Lords to support the Bill in this House.
Moved, That the Bill be now read a second time.—(Lord Razzall.)
12.28 p.m.
Lord McNally: My Lords, I thank my noble friend Lord Razzall for an extremely clear explanation of the contents and purposes of the Bill. I should make a declaration of interest. which may be slightly longer than usual because of bitter experience. In March 2000 I introduced a copyright and trade marks Bill in this House, which I withdrew following an extremely persuasive speech by the noble Lord, Lord McIntosh of Haringey. Nothing happened for about seven or eight months. Then, one morning, I opened the Guardian to find quite the nicest photograph that it had ever printed of me, in full Lord's fig, coupled with a story that I had promoted the Bill for the benefit of Weber Shandwick clients, the public relations company which employs me.
Weber Shandwick has 3,000 clients the world over. It does not take even the investigative talents of the Guardian to find among those clients people who have an interest in a copyright and counterfeiting Bill. But the fact is—I shall say it today because I did not do so on the previous occasion—that I know of no Weber Shandwick client who has other than a general interest in this Bill. So far as I am aware, the company does no work in this area, and I am personally not involved. But that will probably still not prevent the Guardian running a story.
I have had an interest in this area since serving on the Select Committee on Trade and Industry in another place from 1979 to 1983 and then as director-general
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of the British Retail Consortium in the mid-1980s. The matter was, even then, a live issue. When I entered this House, I was the spokesman on trade and industry for the Liberal Democrats and was heavily lobbied on the issue by the Alliance Against Counterfeiting and Piracy and by the British Brands Group.
In that respect, perhaps I may make a plea on behalf of lobbying. Lobbying is too often associated with the sleazier side of parliamentary behaviour. Let us remember that lobbying is one of the lifebloods of a vigorous Parliament. Where there is need for reform in the law—not only this law but in many laws—good and active lobbyists can speed that along. Certainly the groups that I have mentioned have done that.
I said that I withdrew my Bill. I did so after the Minister promised that the Government would look at the cases made out in the Bill and respond to them. As my noble friend said, slightly giving the game away, although this is a Private Member's Bill, there has been some judicious support from the department in seeing it through another place and the Government have given it some encouragement. I certainly take that as the response to the promise of the Minister two years ago about the Government treating this matter seriously. Henceforward, I shall not be as cynical as I once was about promises of future action made by Ministers at the Dispatch Box. The noble Lord, Lord McIntosh of Haringey, has a fine record on this issue that will stand him in good stead in the future.
This Bill covers only part of the issues contained in the Bill that I put forward. As my noble friend outlined, it increases the penalties for copyright theft; it strengthens search warrant provisions; and it gives greater powers to allow rights owners to obtain forfeiture of infringing material. There is still work to do on other areas, including burden of proof, occasional sales, funding, and so on, but I do not want to be churlish. I believe that the Bill carries us forward and is welcomed by all those involved.
My noble friend has highlighted the importance of the industries concerned. Counterfeiting and piracy are serious problems affecting virtually every area of the country. Legitimate, hard-working businesses are being forced to close. Local, national and international organised crime is funded. And, as my noble friend indicated, consumers' lives are put at risk through exposure to shoddy, substandard and potentially dangerous merchandise.
There are also wider economic issues. If Britain is to prosper in the 21st century, we must get into the knack of producing goods and services which are at the high tech/high value-added end of the market. But if we are really to make such an economy a reality, it is not enough to encourage people to come up with good ideas. We must ensure that people who have those good ideas have them protected. The aim of this legislation must be to make counterfeiting and piracy as unacceptable as other forms of theft and to raise public and political awareness of copyright and trade mark issues so that intellectual property is highly valued by everyone.

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The rapid development of information technology, the globalisation of the economy and the advent of the world wide web all mean that in the 21st century the integrity of intellectual property will become ever more important. Intellectual property does matter. The industries represented by the Alliance Against Counterfeiting and Piracy account for 20 per cent of our GDP. They are our most creative and competitive industries, and the industries where, most often, we enjoy world leadership.
Therefore, intellectual property is a very important type of property. Increasingly it will be what really matters in business, especially in the creative industries, such as design. Globalisation and the information revolution mean that goods, be they plastics or packaging, CDs or CD-ROMs, can be manufactured in any one of a dozen locations anywhere around the globe.
So what will make the difference between the thriving economy and the struggling economy? I believe that the difference will be ideas—the ideas which lie behind a new book or film, a new perfume, or the packaging in which they are placed, and the skill with which they are marketed. Ideas are the currency of the 21st century. It is in new ideas that real value lies—in making something different, better and more marketable.
But what value an idea if some cheapskate or crook can simply wait for you to put in all the work and investment and then copy what you do? They rip you off rather than bother with ideas. Therefore, protecting intellectual property is the key to protecting the UK's future economic success. If someone steals the idea behind a product or design or the advertisement to sell it, he may as well have stolen the product itself. Theft is theft. It is that simple.
As noble Lords know only too well, over the years the theft of ideas has become all too commonplace. And that, in turn, has had a real impact on real people—on their jobs and on the public services they receive—by reducing the creative industries' overall contribution to the UK economy.
But counterfeiting and piracy have other negatives, too. Pirate and counterfeit products are of unpredictable quality. Thus consumers never know what they are getting for their money. For example, look-alike packaging trades off the back of the good reputation of one product, seeking to claim the attributes of another. That is not value for money, and it confuses the consumer.
At the other extreme, some pirated goods are downright dangerous. There have been instances of counterfeit engine parts and even counterfeit vaccines. Those could cost lives. Year in and year out, arrests for copyright and trade mark offences also confirm that organised crime has cottoned on to the fact that counterfeiting and piracy provide high profit, relatively low-risk vehicles for profiteering, despite the valiant efforts of enforcement agencies.
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In conclusion, I thank the noble Lord, Lord McIntosh, and the Government for redeeming their promise of two years ago and giving a fair wind to the Bill. I congratulate the Alliance Against Counterfeiting and Piracy on its successful lobbying. And I congratulate my honourable friend Vince Cable in another place and my noble friend Lord Razzall on their championing of the Bill. I urge its rapid passage through this House and its successful implementation as a good piece of legislation.
12.39 p.m.
Baroness Miller of Hendon: My Lords, I, too, thank the noble Lord, Lord Razzall, for the very clear explanation that he gave of the Bill. I am also grateful for the Explanatory Notes that were provided by the DTI with his consent. They were very clear indeed. Credit is also due to the honourable Member for Twickenham for having used his precious space in the lottery for Private Members' Bills in the other place to introduce what is a very important piece of legislation.
The Bill received cross-party support in the other place and followed a very similar one previously introduced there before the election by the honourable Member for Ellesmere Port and Neston. A copyright and trade marks Bill was also introduced by the noble Lord, Lord McNally. It received its Second Reading on 17th March 2000. The noble Lord has already spoken about that.
Perhaps I may mention the history of the present Bill. It has received cross-party support throughout the several attempts to get this piece of legislation on the statute book. The Bill and its predecessors have received welcome support and assistance from the Government. The noble Lord, Lord McNally, congratulated the Government on helping now. It is a pity that they were not able to deal with the matter in their own legislative time in order to save someone having to use precious time in a ballot. Nevertheless, as the noble Lord, Lord McNally, said that he is satisfied, I should not be churlish and should be satisfied too.
No one will dispute the fact that the pirating of copyright and performance rights and fraudulent access to TV transmissions are nothing less than theft. Copyright theft is estimated to cost industry £9 billion a year and the Treasury £1.25 billion a year in lost tax. I assume that those figures apply to the United Kingdom alone because, according to the International Chamber of Commerce, counterfeiting accounts for a staggering 5 to 7 per cent of world trade. It also says that counterfeiting has destroyed an estimated 120,000 jobs in the USA and 100,000 jobs in Europe in each year over the past 10 years.
The United Kingdom record industry, which is a major player in the music industry—perhaps the greatest, considering the world wide popularity of some of our performers and composers—is the source of what we used to call "invisible exports" to the tune of some £4.6 billion a year. That is because British music and performers are frequently found at the top of the charts around the world. As my honourable

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friend, the Member for Maldon and Chelmsford East pointed out in another place, blockbuster films such as "The Full Monty" and "Harry Potter" were made in this country, as were many others which have achieved world-wide popularity even if the revenues have gone elsewhere.
In fact, in addition to the prestigious Alliance Against Counterfeiting and Piracy and the Federation against Copyright Theft, the International Chamber of Commerce has recently created its own legal bureau of law firms to help fight the problem in the courts. I sincerely hope that those three organisations will not get their wires crossed and will be able to co-operate well in fighting this international crookery.
International it is, because this Bill is not designed to cope with the trivial and technical breaches of copyright that I have no doubt some of us may have committed from time to time by photocopying a newspaper article to pass on to someone else or videoing some programme from the television to watch at a more convenient time. However, like the noble Lord, Lord Razzall, I do not suggest that trivial and technical breaches should in any way be encouraged. But the Bill is designed to catch and punish the criminals who do such acts for commercial gain. They steal from the artistes who perform on records; and from the producers of movies who invest and risk millions in producing films which are sometimes pirated before they have even appeared in the cinema. They steal from the designers of computer games and other software which themselves can cost vast sums and take months or years to develop. They steal from the owners of subscription television broadcasting channels whose signals they intercept by the use of counterfeit decoders. The noble Lord, Lord Razzall, mentioned several other examples.
They will imperil the whole newly developing techniques and security of electronic banking, conveyancing and other commercial transactions by breaching the encryption techniques now being developed. Only a part of that illegal activity is conducted by small-time criminals operating a couple of high speed recorders from their garages and flogging off their products at car boot sales. It is so profitable that it has become a part of international criminals and gangs and has been said to be a source of funds to international terrorists. The noble Lord, Lord Razzall, also mentioned that.
More than that, counterfeiting CDs has been carried out wholesale in the Far East either with the connivance of local governments or by their turning a blind eye to it because it is such a lucrative source of foreign currency.
The noble Lord, Lord Razzall, pointed out that one of the objectives of the Bill was to increase the penalties payable to bring them into line with those under the legislation against the fraudulent use of trade marks. In an intervention in another place during the Second Reading speech by the promoter of the Bill, his honourable friend the Member for Brent North asked him to justify the severity of the penalties to be payable after the passing of the Bill against sentences passed in
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recent cases of child abuse. The answer may be, although the promoter did not give it, that it is not because the penalties proposed under the Bill are too severe but that the courts do not always inflict the penalties which their powers allow in cases of child abuse and crimes of violence. One cannot compare such penalties; we are not comparing like with like.
The offences which the Bill deals with by the infliction of additional penalties and the giving of greater enforcement and investigatory powers do not involve victimless crimes. We are all victims either because we pay more for the legitimate products we buy from honest traders or because of the loss of tax revenue which, in one field alone, costs the Treasury £1.5 billion a year. How many extra hospital beds, nurses, doctors, schools, teachers or policemen would that money pay for?
The Bill will help the authorities to bear down on organised crime and international terrorists and that will protect us in many ways. As my honourable friend said in another place, the sponsors of the Bill have made a powerful case for tightening the law. We on these Benches fully support the Bill. We congratulate the noble Lord, Lord Razzall, and look forward o the Bill's early passage into law.
12.45 p.m.
Lord McIntosh of Haringey: My Lords, I, too, congratulate the noble Lord, Lord Razzall, on bringing the Bill before the House today. As the noble Lord said, I have been here before and he has been here before. In March 2000 we discussed his Copyright and Trade Marks Bill. He accused me at that time of responding to his Bill with a dead bat Since I am not very good at sporting metaphors, I looked at my speaking notes but found no reference to any bald, mouse-like nocturnal mammals of the genus chiroptera, so I denied his accusation. However, I think that he will find a somewhat different response today.
I had indicated that we supported some part of the measures he proposed; and that we were in the process of a consultation exercise on the merits of three issues in the Bill. They appear now in a similar form in this Bill. The consultation exercise resulted in general endorsement of the rationalising measures between copyright and trade mark law which were being proposed. The Government subsequently decided that they would legislate on these matters. However, the Government have not yet brought forward their legislation in this area so we are pleased that the Bill before us presents an opportunity to put the changes of the law that we have agreed on to the statute book at an early stage. We gave the Bill full government backing in another place and that will continue for its passage through this House.
The House and the noble Lord, Lord McNally, can take credit for instigating the legislation before us today, but there are some important differences between the Bill introduced in 2000 and the present Bill. The Bill introduced in 2000 was more far-reaching in the area that it covered. The Bill before us today

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presents us with a realistic and sensible package of measures which will bring some rationalisation to the provisions applying to intellectual property or intellectual property crime. I am delighted to say that the reservations I expressed on the Bill introduced in 2000 do not apply to the Bill before us today.
I do not wish to talk at length about the contents of the Bill or repeat what the noble Lord, Lord Razzall, said in his excellent introductory speech. I believe that we are all convinced of the seriousness of intellectual property crime for holders of intellectual property. The industry umbrella group, the Alliance Against Counterfeiting and Piracy has left me and no doubt other Members of the House some detailed information about the effects on it and on jobs and consumers. There is also the link with serious organised crime. The noble Lord, McNally, has set that case out.
We have noted also the comments made by the National Criminal Intelligence Service, which has identified particular links with drug dealing and immigration crime. If the crime can be serious—it can be just as serious whether it is copyright being stolen or a trade mark theft, or both—we should make sure that law enforcers have the right tools to tackle that crime. There are differences between the relevant copy law on the one hand and trade mark law on the other which do not make sense. The Bill addresses that issue and has the full support of the Government in doing so. Law enforcers must be given equivalent tools to punish and investigate this offending behaviour regardless of whether it is copyright or trade mark that is being stolen.
Perhaps more importantly, equalising the sentence and enforcement tools will improve the deterrent effect so that theft of one type of intellectual property is not seen as a soft option. I should stress one important point about the Bill, or rather about a matter that is not in the Bill.
As the noble Lord, Lord Razzall, rightly said, the Bill does not change the nature of any of the intellectual property offences; it changes only the consequences for people who may in future commit those offences. We are aware of some problems with the definition of the offences in the copyright area in connection with what might be called "on-line piracy", which was the subject of the Bill introduced by the noble Lord, Lord McNally. The right place to address any changes of law that may be necessary is as part of the implementation of the copyright directive that was adopted last year. The Government will bring forward a consultation document on implementation of that directive in due course.
Before I conclude, perhaps I may give the noble Baroness, Lady Miller, some comfort regarding her remarks on trivial infringements of copyright. There is an exception to copyright that legally allows her to copy a television programme to watch at a more convenient time. Indeed, for those of us who keep the
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peculiar hours of this House, that is essential if we are to watch the programmes that we like. There is no threat to that exemption.
Lord McNally: My Lords, I thank the noble Lord for giving way. First, I welcome the consultation on on-line piracy. As my noble friend indicated in his speech, piracy of new films and records is a growing problem. I refer to a point raised by the noble Baroness, Lady Miller; that is, international complicity by legitimate governments. To show how long that has been around, 20 years ago, with the late Sir Donald Kaberry, I went to a number of far eastern countries on an all-party delegation to ask them to clamp down on counterfeiting taking place in those countries and coming into our markets. I wonder how much priority the Government give now to putting pressure not on organised crime but on legitimate governments which show a degree of complicity with counterfeiting within their borders.
Lord McIntosh of Haringey: My Lords, even if that is legitimate in their country, which we regret, it is a crime when anything is exported from those countries to this country. The answer to that is partially in what I have been saying about the European directive. Clearly, the European Union, acting collectively, has a greater bargaining power with those other countries which are being neglectful or worse in dealing with copyright crime. We use every opportunity to lobby other countries, but there are still problems.
The noble Lord, Lord McNally, reminded me about the issue of on-line piracy. Perhaps I may say that there are other issues in his Bill which have not been forgotten. As regards the issue he raised today of look-alike packaging, although we think that it may be a matter of revision to passing off law rather than the subject matter of this Bill, these are still issues which need to be addressed and which we want to address.
To sum up, the Bill harmonises and brings greater transparency to enforcement provisions across copyright and related areas and trade mark laws. Our view is that this is a sensible attempt to rationalise what might otherwise be a confusing mix. As I have already indicated, we supported the Bill in another place and shall continue to do so during its passage through the House. We have taken advice and believe the Bill to be compatible with the European Convention on Human Rights. The provisions in the Bill provide a balanced and acceptable solution to the problems of intellectual property crime.
Lord McNally: My Lords, before my noble friend responds, perhaps I may say that I consider that response to be a Botham-like sweep rather than a dead bat; much changed from last time.
Lord McIntosh of Haringey: My Lords, I do not understand that.
Lord Razzall: My Lords, I shall not attempt to pursue the cricketing analogy. However, without detaining the House, I want to continue the animal

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analogy. What has pleased me most about this debate is the dog which did not bark. When thinking about how the Bill would be received by noble Lords, one point concerned me. I thought that some noble Lords might attempt to suggest that, as all of the issues which have been raised by my noble friend Lord McNally in his previous Bill have not yet been dealt with by the Government, as the Minister indicated, therefore we should wait until they are dealt with in order to have a
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comprehensive reform Bill. I am delighted that no one has suggested that. Leaving those issues aside for another time, it is important that we pass this aspect of copyright and trade mark reform. Therefore, on that basis, I ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at four minutes before one o'clock.